There have been certain professional jobs lost during the COVID-19 epidemic that may take years to refill because of systematic, lasting changes in our society. One such area is retail and commercial real estate sale, purchase, and leasing. For professionals in these fields, they may be at a loss to obtain similar employment and may be going through a divorce at the same time. Divorce is hard enough, but to be without a job during this time and with dim job prospects, these clients may be asking their divorce lawyers what the legal system can do to help. Fortunately, there are a variety of legal tools the trial court may utilize, if supported by the evidence of the case, to assist such parties, which are the focus of this blog.
If this is your situation, you may be thinking that holding off on the divorce until you are re-employed makes the most sense. That may well be the case. However, so long as one party wants a divorce, the divorce will continue. There is no statutory or trial court rule to pause a divorce without agreement of both parties. However, there are still three (3) powerful tools the trial court uses to account for unemployment. The first is to order the other party to pay some or all of your legal fees and expenses if you are in peril. Under the Divorce Act, a trial court may order a party to pay the others legal fees from time to time. With your attorney, you have to develop the evidence to show a legal fee award is appropriate. The trial court considers the following evidence in making an attorney’s fee award:
- The resources of the parties.
- The economic circumstances of the parties.
- The ability of the parties to engage in gainful employment and earn an adequate income.
- Any other factors that are pertinent to the reasonableness of the award.1
The second tool is spousal maintenance. Spousal maintenance is effectively the only type of “alimony” in Indiana that may be ordered by the court to be paid by one party to other after the divorce decree is entered. Spousal maintenance may be ordered to be paid by one spouse to the other upon divorce for education or training so you may be able to obtain gainful employment. There is a very specific type of evidence you must develop with your attorney and present to the trial court to obtain rehab maintenance. The court considers the following in awarding maintenance:
- The educational level of each spouse at the time of marriage and at the time the action is commenced;
- Whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or childcare responsibilities;
- The earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence or absence from the job market; and
- The time and expense necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment.2
If any of these considerations are established by the evidence, the trial court may find that rehabilitative maintenance for the spouse seeking maintenance is necessary and order such paid in an amount and for a period of time that the court considers appropriate, but this cannot exceed three (3) years from the date of the final decree.
The court does not have to award attorney’s fees or maintenance, but it may do both as well as unequally divide the marital estate to account for the unemployed spouse’s situation. Specifically, in divorce cases, the trial court is to presume that an equal division of the estate is just and reasonable (all assets minus liabilities).3 However, this may be rebutted and more may be awarded for any good reason; but this statute specifically contemplates unemployment or other unfair circumstances and allows the court to deviate and give the unemployed spouse more of the marital estate as it may consider the “economic circumstances of each spouse at the time the disposition of the property is to become effective.”4 Thus, the court may use this, as well as an attorney fee award and rehabilitative maintenance, to protect a vulnerable spouse at the time of divorce, including unemployment due to COVID-19.
Ultimately, the ability to present a solid case for an attorney’s fee award, spousal maintenance, and/or an unequal division of the marital estate in your favor is only possible by careful development of the evidence to support same with your counsel and making your case in court. Dixon & Moseley, P.C. attorneys handle all facets of divorce and paternity cases through Indiana. This includes cases where we seek an attorney fee award for our client, spousal maintenance of rehabilitative maintenance. We hope this blog makes you a more educated legal consumer. This blog is written by attorneys at Dixon & Moseley, P.C. This blog is for general educational purposes and is not a solicitation for legal services or legal advice. It is an advertisement.