Today the Indiana Court of Appeals issued an opinion in Carr v. Carr. The Carr case represents (in my humble opinion) a case of first impression in Indiana. The Court of Appeals for the first time has unequivocally ruled that Survivor Benefits, as part of a Pension, are assets to be divided in a dissolution of marriage. The decision of the Indiana Court of Appeals can be found here:
In this case Mr. Carr elected survivor benefits as part of two pensions he was a participant of. Survivor benefits are pension payments that would go to another party if the participant pre-deceases them. Many practitioners have long argued those benefits have a value, and should be considered an asset when dividing property. The trial court in this case determined the survivor benefits were too speculative to be determined property- thereby awarding them to Ms. Carr without giving them any value.
Jonathan R. Deenik had the pleasure of representing Mr. Carr in this appeal. Mr. Carr argued that the trial court erred in determining the survivor benefits had no value, which, in reality, granted Wife a windfall and a share of the marital estate in excess of 65%. The Court of Appeals agreed. The case was remanded to the trial court.
On January 20, 2016 the Indiana Court of Appeals issued an opinion regarding the application of "coveture fractions" to retirement accounts in divorce actions (a copy of the opinion can be found here: http://www.in.gov/judiciary/opinions/pdf/01201601pm.pdf). While this specific case is about retirement assets, the Court does note in its opinion that the same analysis may apply to inheritances as well.
Coveture fractions are used in cases to determine the amount of retirement assets that were earned during the marriage. The Court then will divide that amount, instead of the full amount of the retirement account. Late last year a different opinion from the Court of Appeals had many lawyers believing that the use of the coveture fraction may no longer be appropriate in Indiana without some specific findings.
This opinion, though, signals a different direction which may allow the trial court to segregate property from the marital pot. This opinion has some specific requirements about what evidence must be presented, and how the Court should analyze the coveture fraction.
If you are involved in a divorce, and retirement accounts are at issue, you should be absolutely certain the necessary evidence is presented to protect you. Be certain you have a partner that remains current on the law, and is familiar with what the legal standard is.
When it comes to most Family Law matters emotion, more importantly how you handle the emotions, is an important part of resolution. In most instances the events that spur litigation will be painful. Often someone you love and trust has violated that trust, or hurt you deeply. It is not uncommon, when one is hurt, or violated, to react in kind. These reactions though, can have a serious impact on the ultimate resolution of your matter.
There is a theory called the "Principle of the Path" which states that direction, not intention, determines your destination. When we react out of emotion, typically our intention is to feel better, or to help cope. Our intentions can be to deflect from further hurt or pain. It is important that you have a trusted advisor that help you establish your long-term goals as soon as you can in the litigation process, even ahead of time if necessary. With goals in mind it becomes easier to act from a place of direction- you will be acting in a way to further those goals. Establish your direction early if you want to meet your goals. Take comfort in knowing what actions you should be taking, or not taking, to serve your ultimate goal, not the short-term goals emotional reactions meet.
Do you need help setting your direction? Contact me, I'm happy to help.