Friday, January 16, 2009

New Indiana Case: Swadner v. Swadner Part V (Property Division)

Today I finish my discussion of Swadner v. Swadner (PDF format). Previously, I discussed Children's Names, Joint Custody, Relocation, and work related child care costs. The following comes from page 17 of the opinion:

When ordering an unequal division, the trial court must consider all of the factors set out in the statute. Eye, 849 N.E.2d at 701; I.C. § 31-15-7-4. Father owned the marital residence and had established his 401(k) before the parties were married. In dividing the marital estate, the trial court equally divided the increase in the equity in the marital residence from the date of the marriage to the date of separation and the increase in value in the 401(k) between those dates. In its division of the marital property, the trial court should have, but failed to, consider the total equity in the marital residence and the full amount of Father‟s 401(k). See I.C. § 31-15-7-4. Father argues that Mother stipulated to using the coverture value of the marital residence and Father‟s 401(k). Our review of the record does not support Father‟s argument.

Mother did stipulate to the values of the residence and 401(k) on the date of their marriage. However, there is no stipulation indicating that the parties agreed only to include the increase in value of those assets during the marriage. The stipulations merely provide, “The parties agree to divide the marital estate and debt equally.” Appellant‟s App. p. 43. Accordingly, we conclude that the trial court abused its discretion when it failed to include the total equity in the martial residence and entire value of the 401(k) in its calculation of the marital estate.

While reminding us that property division does not need to be 50-50, it is more important to notice that what may appear unambigous is not always so. Specify, specify.

I think I should point out that this problem might have been solved by a prenuptial agreement. Certianly the value of property owned prior to marriage is a problem we all need to be aware of and a pre-nup does concentrate the mind.

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