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Husband allowed to petition for survivor's allowance

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Even though a wife had filed for divorce from her husband at the time she was killed, the husband is still allowed to petition for survivor’s allowance, the Indiana Court of Appeals affirmed Wednesday. The appellate judges cited caselaw from the 1800s to support their decision.

Melissa and Jason Patrick had issues in their marriage, and Melissa filed for divorce. Jason admitted that he also considered divorce, but Melissa filed before him. Jason began a relationship with Sarah Jones, who was divorcing her husband. Jason stayed at Jones’ house a few times a week. Melissa began a relationship with Jones’ ex-husband, who later murdered her when she told him she wanted to end their romantic relationship.

Jason filed a petition of surviving spouse for a statutory allowance pursuant to Indiana Code 29-1-4-1. Melissa’s estate argued that I.C. 29-1-2-14 barred the claim, which says “If either a husband or wife shall have left the other and shall be living at the time of his or her death in adultery, he or she as the case may be shall take no part of the estate or trust of the deceased husband or wife.”

Much of the parties’ arguments and evidence dealt with the “living in adultery” aspect of the statute, but didn’t discuss much of the other element of the statute – abandonment. The appellate court focused on the abandonment element, and cited several cases, including ones from 1829, 1866 and 1916 to conclude that in order to divest Jason of his survivor’s share, the estate was required to prove that he “left” Melissa. This means that he left her “willfully, without justification … with an intention of causing a perpetual separation of the parties,” but he couldn’t have “left” her under I.C. 29-1-2-14 if the parting was mutually agreed upon.

The evidence showed when Melissa filed for dissolution,Jason had been staying at his father’s house. The evidence supports that they separated by mutual consent and he exercised regular visitation with his children. The estate did not prove the element of abandonment, so the trial court did not clearly err in denying the estate’s motion to dismiss Jason’s petition for survivor’s allowance, wrote Judge Ezra Friedlander in In the Matter of the Estate of Melissa K. Patrick: Yvonne Griffith v. Jason Patrick, No. 17A03-1104-ES-190.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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