An Indiana Law that Recognizes Domestic Partnerships? Proposed Rules For Family Proceedings

The Indiana Supreme Court Committee on Rules of Practice and Procedure for Public Comment has published proposed rule amendments for public comment.  Comments for the proposed amendments are due by March 25, 2011.  One rule titled "Rules for Family Proceedings" is particularly interesting.  The rule would provide procedures for consolidating multiple case involving the same family with one court/judge. 


The rule would apply to cases involving individuals in the same "family", in the broadest sense.  It is worth noting that as the Indiana state legislature is considering a constitutional amendment which would ban the recognition of civil unions and anything "substantially similar to marriage", this proposed rule, by definition, would apply to individuals living in a "domestic partnership".

This rule would help the problem of different courts/judges entering orders that affect the same family.  For instance, if a guardianship and a divorce proceeding were concurrently pending and involved the same family, this rule would provide procedure for the two (2) actions to be heard by the same court/judge.  Presently, this type of consolidation can only occur on motion of one of the parties or the court.  Having a more predictable procedure to follow in these circumstances would be a welcome change.  


However, with this procedure the parties right to move for a change judge may be limited.  The proposed amendment limits the right to seek a change of venue or a change of judge, as follows:  


D. Designation by Court of Intent to Use Family Procedures and Change of Judge for Cause. Within fifteen (15) days after notice is sent that a case has been selected to be heard using Family Procedures, a party may object for cause to the designation or selection of a party’s case.
Once notice is sent to the parties that a case has been selected to be heard using Family Procedures, no motion for change of venue from the judge may be granted except to the extent permitted by Indiana Trial Rule 76. A motion for change of venue from the judge in any matters being heard in a court using Family Procedures, or any future cases joined in the court after the initial selection of cases, shall be granted only for cause. If a special judge is appointed, all current and future cases in the court proceeding may be assigned to the special judge.


This proposed amendment would arguably change that presently, pursuant to Indiana Trial Rule 76, in a divorce or paternity case, each party is entitled to one (1) change of judge, without cause, as a matter of right.  This is a right commonly used in post-decree modifications and enforcements of custody, parenting time or child support orders. In this regard, the proposed rule amendment would be a significant change to present procedure. 

Click here for all of the proposed rule amendments and to comment on the proposed rule.

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)).