Sunday, March 14, 2010

Indiana Legal Separation Becoming a Divorce Case With a Post-Nuptial Agreement

And a good example why to hire a lawyer. Such is Beaman v. Beaman, 844 NE 2d 525 (Ind: Court of Appeals 2006).

First, the case demonstrates - to me - why few legal separation case are filed or go on for very long. Notice how easily the parties slipped from a separation case a dissolution case (and see what I wrote here).

Now about why this case explains why hiring a lawyer is a Good Idea:

At the outset, we address the tangled procedural irregularities in this case. As recited above, Eric filed the petition for dissolution in this case, Ramona filed a cross-petition two weeks later, the trial court summarily entered a dissolution decree just ten days after that without a hearing, and Eric effectively filed a motion to reconsider one week later. We conclude the trial court acted too hastily in entering the dissolution decree. Indiana Code Section 31-15-2-13 permits a trial court to enter a summary dissolution decree without a hearing "[a]t least sixty (60) days after a petition is filed in an action for dissolution of marriage" if both parties have filed a written and signed waiver of final hearing, and filed either a written settlement agreement or a statement that there are no contested issues in the case.[1]

Granted, the parties in this case had filed a purported written "waiver of final hearing" when they jointly petitioned for legal separation. However, there was no dissolution action pending at that time and, therefore, there was no dissolution hearing to be waived. Eric's subsequent petition for dissolution, which was not joined by Ramona, did not contain a written waiver of a final hearing. It does not appear that the pre-dissolution proceeding "waiver of final hearing" should necessarily have been deemed a waiver of a dissolution final hearing, especially where Eric's dissolution petition made no mention of that waiver and did not request summary dissolution.

Procedurally, the parties make a complete mess of the case - which means they increased their stress and probably did not have the outcome that they thought was coming to them.

As part of their legal separation, there was a property settlement agreement. Dealing with the property settlement agreement became the big question.
Turning to the merits, our first guidepost in this case is Pond v. Pond, 700 N.E.2d 1130 (Ind.1998). There, the Indiana Supreme Court discussed the difference between "reconciliation agreements" and "dissolution settlements." Id. 530 at 1132. The former are agreements (referred to as prenuptial, premarital, or antenuptial agreements) entered into in contemplation of marriage or its continuance and that generally must be enforced as written in the event of dissolution. Id. The latter are agreements entered into as a consequence of dissolution proceedings (post-nuptial agreements); they are governed by the Indiana Dissolution of Marriage Act ("the Act"), and their acceptance or rejection is within the trial court's discretion.[2] Id.
The Court of Appeals treated the agreement created as part of the legal separation case as a post-nuptial divorce agreement.
Our review of Pond and the record in this case leads us to the clear conclusion that the agreement between Eric and Ramona that they signed on November 24, 2004, was a post-nuptial, not antenuptial, agreement. Although no dissolution action was pending at the time, the agreement was filed contemporaneously with a request for legal separation. Additionally, although the agreement provides that the parties would not necessarily commence dissolution proceedings, there is nothing in the record to suggest that the parties entered into this agreement for purposes of maintaining their marriage. To the contrary, the agreement itself reflects that the parties had already divided up much of their personal property, including their vehicles, prior to their separation. There is nothing in the record to suggest that the parties actually attempted any reconciliation following the signing of this agreement; instead, Eric, in fact, did file a petition for dissolution just three months later. The facts here are very similar to Pond, and we reach the same conclusion: the parties' agreement is governed by the Act. As such, the trial court had the discretion, under Indiana Code Section 31-15-2-17, to accept or reject the agreement. See Pond, 700 N.E.2d at 1132.
I suggest that any legal separation agreement be written with the probability that it will become a post-nuptial agreement in a divorce.

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