Friday, June 26, 2009

Indiana Divorce Case Law: Liens and Property Division

I started this discussion back in April with Indiana Case Law: Divorce, Property Division and Judgment Liens, Call this a post a victim of my hiatus. You might want to go back and read the earlier article.

I opined that White v. White, 819 N.E.2d 68, 70 (Ind.App.,2004) (Word format) also applied to settlements. That opinion finds full support in Joyce v. Joyce, 627 N.E.2d 825 (Ind.App. 2 Dist.,1994) where the lien is placed in a settlement agreement.

The opinion provides us with sample language:

6. DIVISION OF EQUITY. The Husband's share of the equity in the parties' real estate is Twenty Five Thousand Dollars ($25,000.00). Said judgment of Twenty Five Thousand Dollars ($25,000.00) shall be due and payable, in full, upon the sale of the subject real estate by the Wife, upon the death of the Wife or upon emancipation of the parties' minor children.”

627 N.E.2d at 826. The Court Of Appeals also provided a bit of criticism of its drafting in footnote 1:

Although the agreement and the decree served to grant Paul a judgment against Mary, neither document described a specific lien against the property. The agreement also failed to specifically describe any security, bond, or other guarantee for the payment of the judgment. We would encourage the inclusion of such language in settlement agreements and dissolution decrees so as to avoid confusion regarding the application of the judgment lien statute and/or the security for payment statute and to show the clear intent of the parties.

627 N.E.2d at 827.

The case also stands for the proposition that a lien under IC 31-15-7-8 has another advantage over a mere judgment lien: a line under IC 31-15-7-8 extends past the ten years allowed for a judgment lien. See 627 N.E.2d at 827 - 28.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

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