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IBA: What Every Woman Should Know to Protect Herself in the Event of Divorce

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By Amy Carson, Laura Gaskill, Robin Kelly and Gloria K. Mitchell, all of Mitchell & Associates

Advising clients contemplating divorce varies with the style of the attorney. Even so, there are fundamental issues every woman considering or beginning the divorce process should know to protect herself financially. 

Divorce Fundamentals. Indiana is a no-fault state, meaning that the reason for the divorce is not relevant to the court. The Petition for Dissolution of Marriage generally states that there has been an irretrievable breakdown of the marriage and it should be dissolved. After the petition if filed, there is a required 60-day cooling off period before the divorce can be final.

Date of filing. The date a Petition for Dissolution is filed is the date a court looks at to determine what is in the marital estate, both assets and debts. Any assets acquired/earned or debts incurred after the date of filing will generally not go into the marital estate and belong solely to the party who accrued the asset or incurred the debt.

Division of Assets. Indiana follows the “one pot theory,” meaning that any assets or debts brought into the marriage, or acquired during the marriage, are included in the marital estate, unless there is a prenuptial agreement indicating otherwise. The presumption is that the marital estate is divided 50/50; however, either party can attempt to persuade the judge that 50/50 would not be fair.

Spousal Maintenance. Indiana is not an alimony state, which means a court cannot order that alimony be paid unless the parties both agree that alimony should be paid; since the payment of alimony may be financially advantageous to both parties, this kind of agreement is uncommon. Spousal maintenance, however, can be ordered by the court. There are three instances when a court can order that one spouse pay maintenance to the other. These include the following: when a spouse is the custodian of a child with physical/mental incapacity such that it impairs that spouse’s ability to work; or if a spouse is physically/mentally incapacitated such that he/she cannot work; or if a spouse is in need of rehabilitative maintenance because he/she needs training or schooling in order to re-enter the workforce.•

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  1. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

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  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

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  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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