Sunday, April 20, 2008

New Indiana Court of Appeals Decision on Dividing Marital Property

Husband and wife divide all of the marital property but wife's student loan debt. Trial court gives all of student loan debt to wife. Case goes to Indiana's Court of Appeals on whether she is stuck with the debt. The case is Thelma M. Nornes v. Raymond M. Nornes (PDF format).

The Indiana Lawyer Daily reviewed the case in Court rules on marital estate divisions and did a good job of it. As did the Court of Appeals in clearing up a problem in dividing marital property.

"This case presents a recurring problem for trial and appellate courts, namely, what should be the decisional standard for dividing a part of the marital estate when the parties by agreement have divided the balance," Judge James S. Kirsch wrote for the unanimous panel.
I recall one case where the clients had agreed to dividing all but one or two items. Neither side would budge and opposing counsel raised the idea that they would just withdraw the agreement. While my client lacked funds for an appeal, neither was she unreasonable in her proposal for dividing the remaining items. We put things to the judge and came not the worse for it.

What we have now for law in these situations is this:
"We hold that, in the absence of an agreement of the parties to the contrary, where the parties divide between themselves a part of the marital estate and leave the division of the balance to the discretion of the trial court, the trial court should assume that the property that the parties have already divided was divided justly and reasonably and shall divide the remainder ... as if they were the entirety of the marital estate," Judge Kirsch wrote.

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