In today’s world, married couples are as much romantic in their decision to marry as they are doing so for additional financial security. In other words, pure love is not necessarily the sole reason that most fairy-tail weddings are and how they end with a loving and respecting relationship until “death do us part”. For example, some couples separate but stay married because one spouse has a chronic condition and would lose medical coverage with a divorce. Whatever the case may be, what happens if years pass after separation and a divorce action is filed? This blog explores that topic.
By statute, the divorce court is to consider all property to be marital property if it was brought into the marriage or acquired during the marriage up to the point in filing the divorce action. It does not matter how the property is titled. So if a car is titled only in husband’s name, the court can and will consider this as marital properly and divide it, perhaps awarding it to the wife. In addition, and critically, the Divorce Act directs the trial court to presume an equal division is just and equitable. For the most part, trial courts tend to make an equal division (what you brought into the marriage to the date of filing, minus the debts on same, divided by two). Court rarely deviate more than 60/40.
That said, there is sometimes a long-term separation before filing, where one party has invested wisely and amassed a large amount during the period of separation. In some respects, that does not matter as the court is to presume an equal division is just and equitable. In such cases, skilled legal counsel for the husband may argue that a significant deviation is what is just and equitable in this hypothetical, as his trial theme: “Look judge, it would not be fair to award any of the client’s wisely invested funds that accrued between separation and filing for the divorce. The wife had not taken actions related to same that would support a windfall to wife.” Sound compelling? Not so fast.
This is where skilled counsel for the wife may make a compelling counter argument that in this cause the court not to deviate. How so? Taking a chronic condition and loss of insurance of husband on divorce may cause the court not to deviate. With strong and enough evidence, it may indeed cause the court to deviate to the wife’s favor. How so? This is where good lawyering comes in. While not exhaustive of the types of arguments, wife’s counsel may argue and show in the evidence that wife needs rehab maintenance or disability maintenance, so a deviation or additional sum is to be paid by husband to her under the divorce act. Further, by statute under the Divorce Act, the court is required to consider the parties financial circumstances at the time of divorce. If the sickly wife will not have insurance and is not able to work at a high wage, the court may deviate because of the circumstance’s wife would be in on divorce: she would have to obtain some type of insurance without much ability to work.
Ultimately, these and other tools contained in the divorce statutes empower a trial court to divorce the parties in a way that is fair and just. However, the key is obtaining skilled trial counsel to develop your trial theme and then putting on evidence to support your theme. Skilled advocates can argue both sides. In addition, there a number of other tools not specifically contained in the divorce act your trial counsel may use to make the point. In the case of the sickly wife, trial counsel may have an expert testify about the limitations she faces or what is necessary to bring her employment level to a sufficient level (rehab maintenance?)
In the final analysis, if you are facing divorce, a skilled legal advocate can use a number of measures to assist you in obtaining a fair and equitable division of the marital estate, even where you have been estranged for a long period. While this takes significant time and preparation, no matter what your circumstances are in life, such as being estranged for a long period of time, there is vast discretionary relief a trial court judge may use to effectuate a just result—but you have to put the evidence on. This blog was written by attorneys at Dixon & Moseley, P.C. who handle domestic cases of all kinds throughout the state as well as interstate and/or international custody case, as well as those relating to division of property. The firm also handles domestic appeals to the Court of Appeals and Indiana Supreme Court. This blog is written for general educational purposes. It is not intended as legal advice or a solicitation for services. It is an advertisement.