Dissipation of Assets & Attorney Fees - Indiana Divorce Law

The last posting was about dissipation versus disposition of assets.  This posting discusses attorney fees, generally, and whether a dissipating party can be held responsible for attorney fees under Indiana divorce law.   As always, this blog is not legal advice. If you have a specific interest in this issue because it affects your case be sure to consult with an Indiana divorce attorney that can analyze your specific case.  

As to attorney fees in a divorce action, Indiana statutes provide as follows:

(a) The court periodically may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this article and for attorney’s fees and mediation services, including amounts for legal services provided and costs incurred before the commencement of the proceedings or after entry of judgment.

 Ind. Code § 31-15-10-1. 

           

There are a variety of factors the court will consider when determining whether to award attorney’s fees and the amount to be awarded. O'Connor v. O'Connor, 253 N.E.2d 250 (1969). “When making an award of attorney fees in a marriage dissolution case, the trial court must consider the resources of the parties, their economic condition, the ability of the parties to engage in gainful employment and to earn adequate income, and such other factors that bear on the reasonableness of the award.” In re Lewis, 638 N.E.2d 859, 861 (Ind.Ct.App.1994).  In considering the resources of one or both parties, “[t]he fact that one party has assets from which payment could be made, [ however,] does not, of itself, make an award for that party’s benefit improper.”  Taylor v. Taylor, 436 N.E.2d 56, 60 (Ind. 1982). 

Additionally, “[m]isconduct that directly results in additional litigation expenses may properly be taken into account in the trial court's decision to award attorney fees in the context of a dissolution proceeding.” Lewis v. Lewis, 638 N.E.2d 859, 861 (Ind.Ct.App.1994).  “[T]he trial court may look at the responsibility of the parties in incurring the fees and whether they were generated in bad faith.”  Hanson v. Spolnik, 685 N.E.2d 71, 80 (Ind. Ct. App. 1997).  

Therefore, if a court finds that dissipation occurred, and finds that the party's dissipation was in bad faith, the court certainly can award fees associated with the misconduct.

Is it Dissipation or Disposition of Assets? - Indiana Divorce Law

There is a rebuttable presumption that dividing the marital property equally is just and reasonable.  A party’s conduct relating to the disposition or dissipation of marital property may be a factor considered to rebut the presumption of an equal division.  See Ind. Code § 31-1-11.5-11(c)(4).  While fault is generally irrelevant in a dissolution proceeding, it may be relevant when considering alleged disposition or dissipation of marital assets.  In re Marriage of Coyle, 671 N.E.2d 938, 942 (Ind. Ct. App. 1996). What is the difference between dissipation and disposition?

a.      Disposition of Marital Assets.

            No Indiana court had previously defined the term ‘disposition’, therefore, the court in In re Marriage of Coyle used the meaning given in Black’s Law Dictionary, which provides that disposition is “‘the transferring to the care or possession of another.’”  Id. at 944(quoting BLACK’S LAW DICTIONARY § 471 (6th ed. 1990).  “The disposition of marital property is a separate issue [from dissipation].”  Pitman v. Pitman, 721 N.E.2d 260, 265 (Ind. Ct. App. 1999)(citing In re Marriage of Coyle, 671 N.E.2d 938, 944 (Ind. Ct. App. 1996)).  “The ‘disposition’ of marital property refers not to transfers or transactions that are wasteful, foolish or frivolous but to those that are unusual or out of the ordinary.”  Coyle, at 944.  If the issue is disposition of marital property, no showing of waste or misuse or of foolish or frivolous conduct is required to support a deviation from an equal division.  Id.

b.      Dissipation of Marital Assets.

            “Waste and misuse are the hallmarks of dissipation.”  Id.  Dissipation has also been defined “as the frivolous, unjustified spending of marital assets which includes the concealment and misuse of marital property.”  Coyle, at 943(citing Volesky v. Volesky, 412 N.W.2d 750, 752-53 (Minn. Ct. App. 1987)).  Dissipation “generally involves the use or diminution of the marital estate for a purpose unrelated to the marriage and does not include the use of marital property to meet routine financial obligations.”  Id.(citing Volesky v. Volesky, 412 N.W.2d 750, 752-53 (Minn. Ct. App. 1987)). 

             The following factors are considered in determining whether dissipation has occurred: (1) whether the expenditure benefitted the marriage or was made for a purpose entirely unrelated to the marriage; (2) the timing of the transaction; (3) whether the expenditure was excessive or de minimis; and (4) whether the dissipating party intended to hide, deplete, or divert the marital asset.  Hardeback v. Hardeback, 917 N.E.2d 694, 700 (Ind. Ct. App. 2009). 

            Intent of a party to hide, divert, or otherwise deplete the marital estate is relevant, but intent is not a required element.  Coyle, supra. (citing Kaply v. Kaply, 453 N.E.2d 331, 334-35 (Ind. Ct. App. 1983)).  Another relevant consideration is whether the spending of money from the marital estate benefitted the marital enterprise or was made for a purpose completely unrelated to the parties’ marriage.  Id.  Whether the expenditure was excessive or de minimis should be considered, and “[b]efore a spouse is chargeable with a dissipation of assets, the party claiming dissipation must show something more substantial than that the transaction was disputed at the time or that the transaction appears in retrospect to have been unwise.  Id. at 943-44.   Additionally, where the transaction at issue occurs “during the breakdown of the marriage, just prior to filing a petition or during the pendency of an action,” it may require heightened scrutiny.  Id.(citing Melnik v. Melnik, 413 N.E.2d 969, 972-73 (Ind. Ct. App. 1980)).

Grandparent's Visitation Rights - Indiana Custody and Visitation Law

This is post addresses the scope of Grandparent's Visitation Rights in Indiana, and the standard to be applied by the court in determining Grandparent's Visitation Rights in Indiana.

Without a court order a grandparent does not have a presumptive right to visitation with a grandchild.  In other words, unless allowed by a parent, a grandparent can't demand certain times with a child.
In Indiana, a grandparent may seek a visitation order with child only if (1) the child's parent is deceased; (2) the child's parents are divorced; or (3) the child was born out of wedlock, but only if the child's father has established paternity. I.C. § 31-17-5-1. 







A court may grant visitation if it determines that “visitation rights are in the best interests of the child.” I.C. § 31-17-5-2. When a court enters an order granting or denying grandparent visitation, it is required to set forth findings of fact and conclusions of law. McCune v. Frey, 783 N.E.2d 752, 757 (Ind.Ct.App.2003). And, in those findings and conclusions, the court must address: 
    (1) the presumption that a fit parent acts in his or her child's best interests; 
    (2) the special weight that must be given to a fit parent's decision to deny or limit visitation; 
    (3) whether the grandparent has established that visitation is in the child's best interests; and 
    (4) whether the parent has denied visitation or has simply limited visitation. 
In re Guardianship of J.E.M., 870 N.E.2d 517, 520 (Ind.Ct.App.2007).


Finally, a grandparent cannot reasonably expect to receive a visitation order that gives them substantial time.   The Indiana Supreme Court recently recognized that  "that although the amount of visitation is left to the sound discretion of the trial court, “[t]he Grandparent Visitation Act contemplates only ‘occasional, temporary visitation’ that does not substantially infringe on a parent's fundamental right ‘to control the upbringing, education, and religious training of their children.’ ”KI ex rel. JI v. JH, 903 NE 2d 453 (Ind.2009) 


UPDATE - there are presently bills before both house to alter GP's visitation law.  Here is a link to the senate bill.  Feel free to post your comments and concerns.