Monday, June 16, 2008

New Property Division case

The Indiana Court of Appeals decided Barry Wanner v. Jill Hutchcroft on June 10, 2008. It has some interesting points on property division and pre-existing property, deviating from the 50-50 presumption, and the impact of tax consequences on a property division. With all those points of interest, I found the following most interesting:

Here are the high points on the facts:

The parties were in substantial agreement as to the appropriate date of valuation and the current value of the marital assets. However, they disagreed as to the proportional distribution. Jill requested that the trial court divide the marital estate equally, while Barry requested that he receive a larger share.3 His request was premised upon his acquisition of certain assets before the marriage and the fact that he is thirteen years older than Jill and likely to retire earlier.


...Barry was to retain the marital residence, investment accounts and pension funds and was ordered to pay Jill $532,100 as an equalization payment. However, the trial court found that Barry had dissipated assets existing at the time of separation such that the liquid funds were largely depleted. Accordingly, the trial court ordered that Jill could elect (within six months from the decree) to withdraw $137,500 in pension funds and Barry would be responsible for the tax consequences of the liquidation. Alternatively, Barry could pay Jill $137,500 in cash, reducing her portion of the pension funds to $394,600....
Remember Indiana Code Section 31-15-7-5 creates a rebuttable presumption on dividing the property. The evidence presented to the court determines if the presumption stays at 50-50 or not.

About the property Barry owned prior to this marriage:
Barry did not offer documentary exhibits or other evidence from which the trial court could determine the pre-marital value of pension funds as compared with their value at the date of separation. Nor did he offer evidence of the purchase price of the marital residence and the subsequent appreciation. Barry merely requested that the trial court set aside to him the entire current value of the marital residence and one-half of his pension funds, including all the appreciation and investment interest acquired during the sixteen-year marriage. In light of the applicable law, it is apparent that the result desired by Barry was not available to him.


Anonymous said...

When doing your property settlement, make sure that you do not trust your ex-spouse's attorney or even county government on any single filing. Verify, verify, verify, verify, verify. My current situation is a case in point on this. As part of my property settlement, I was required to provide proof of ability to refinance. She was to quit claim the property to me. Anyway, I tried some months ago and was turned down on the only FHA program I could afford simply because the quit claim was "too fresh". I was told I had to wait six months.

So, I waited the six months and initiated a refinance. This time, it went through every step. I was even told that I would need to clear a day for closing. And then I got the news. The title company COULD NOT FIND RECORD OF THE QUIT CLAIM! Oddly enough, the County Assessor considers me the sole holder of title and has so for over six months. But the County Recorder cannot seem to find the quit claim at all. The last document they have on record for my property is from 2003!

In the meantime, she has filed contempt complaint against me for not refinancing and is demanding that the court hire a commissioner to sell the house out from under me. Her claim is that she acted "in good faith" on the quit claim, and that it doesn't matter that it wasn't properly recorded, even though I was told to sign the quit claim and return it to her attorney, which I dutifully did (Xeroxing it several
times before so doing).

However, I did not lean on them to provide me a recorded copy. At the
time, I was "between attorneys", as I had no available funds for even a modest retainer. Yes, I know that "you cannot afford to not have an attorney", but that's a severe "let them eat cake" attitude for those of us who have to choose between paying utilities (a month late) and paying an attorney.

What the point of all of this is, however, is to NEVER trust that the other side's attorney is going to do his job. Always demand verification for every single step of the process. If you do not, you will be victimized for it later.

Sam Hasler said...

Anonymous describes something that I see all too often. I have a forthcoming post discussing this kind of problem. Briefly, opposing counsel has few duties to someone like Anonymous and Anonymous ought to have known this. Now he has learned the hard way. Second, Anonymous did do a very smart thing: he copied documents. Third, if the idea is to save money, consider how much more Anonymous has to pay now. Fourth, no attorney would have kept the deed from being improperly recorded (if that is what happened)but he would have been watching for a copy of the recorded deed to cross his desk.