Tuesday, July 28, 2009

Indiana Divorce Law: Bonds for Securing Property Divisions

Bonds, the General Assembly seems to have been bond happy at some time in its past. I made this point in regarding custody bonds and I see no reason why the same point about legislative fossils does not apply here.

However, unlike true fossils these bonds could have life to them.

Let us look first at the statute:

31-15-7-8 Security, bond or other guarantee of division of property

Upon entering an order under this chapter, the court may provide for the security, bond, or other guarantee that is satisfactory to the court to secure the division of property.
Okay, notice that it is a may and not a shall. Which means that even ordering a bond is left to the court's discretion. Then, if the court does order a bond, the amount remains at the discretion of the court. For laypersons, this means if the trial judge does not order a bond, the Court of Appeals will not find they did anything wrong. Also, if the trial court did order a bond, the amount of the bond will generally not be overturned by the Court of Appeals.

For the lawyers, you will want to read Wilson v. Wilson, 409 N.E.2d 1169 (Ind.App. 1980) and In re Marriage of Davis , 182 Ind.App. 342, 395 N.E.2d 1254 (1979) trans. denied.

Looking back at my practice, I cannot think of a case where a bond could have been used for any great effect. Looking at other areas in which I practice, I have had problems locally finding a bond for a preliminary injunction. I suspect the same problem would occur with finding a bond for these type of cases.

Then, too, there are clients who will not want to pay the cost of a bond. Odd, I am recalling when I started what seems now a large number of cases where insurance was ordered as security for payment of child support (yes, there is a bond statute for child support) but I cannot recall seeing this kind of order in years and years. Which I think says something about our local economy.

For cases where a bond might be useful but unaffordable, I am thinking that a lien would get the same result. See my article Indiana Divorce Case Law: Liens and Property Division.

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