One of the most common questions we get asked when people divorce is whether they can keep their house when they get divorced. The good news is that the answer to this question can be yes. The bad news is that it is not always possible.
The two biggest reasons someone cannot keep their house in a divorce are (1) they cannot afford the house after the divorce or (2) the only way the spouse not keeping the house can receive his/her portion of the equity is for the house to be sold.
Can you afford to keep the house after the divorce?
There are really two issues at play here. Can you afford the monthly payment on the house? And can you refinance the mortgage on the house into your own name? If the house is already in your name solely this won’t be a problem, but if you jointly purchased the house and both spouses are on the mortgage paperwork, then a refinance will typically be required. The good news about a refinance is that, if you have enough equity in your house, you can use the refinance to pay the other spouse his or her equity (we’ll talk about this more below). Of course, if the house is already in your name solely, you will not need to refinance it (although that doesn’t mean you are off the hook on the equity).
How does your spouse receive his/her portion of the equity?
Indiana is a marital pot state when it comes to division of assets and liabilities in a divorce. What that means on a practical level is that absent a prenuptial agreement, the Court has to consider ALL of the assets and liabilities of both parties at the time of the divorce regardless of how they are titled. The Court then has to divide those assets, starting with a presumption that the assets are divided equally. What does that mean for your house? Well it depends on what other assets you have. If your house is your only asset with value and you have no debts (including retirement assets like 401ks or pensions), then it is possible your spouse will be entitled to receive a portion of the equity in the house.
How you pay the portion to your spouse depends on either the agreement you reach or the Court’s order if you can’t reach an agreement. Many people agree that the spouse will receive his or her portion upon a refinance of the mortgage. In a typical refinance, the party refinancing can take out a mortgage up to a certain percentage of the value of the house. If the amount that can be refinanced is greater than the mortgage balance, then the mortgage company will give you cash at closing which you can use to pay the other spouse. If the amount of cash received in the refinance is not enough and/or the parties agree otherwise, the other option for paying the equity is a simple payment plan. Pursuant to Indiana Code 31-17-5-4, the Court is authorized to order the house sold (or any property sold) and/or to order installment payments made.
To be clear, there is no quick and easy answer to whether you can keep your house in a divorce. There are a number of factors in play but these are a few of them. If you’d like to discuss your particular facts and see what our attorneys have to say, please call us at 317-632-4711 to set up a free thirty minute phone consultation with an experienced Indiana divorce lawyer.
As most parents of divorce are aware, the Indiana Parenting Time Guidelines provide a schedule for holiday parenting time that covers many major U.S. holidays. What same people may not realize is that among the holidays included in the guidelines is Easter. Easter falls on April 21st this year, and this year (and all odd years) the holiday parenting time is exercised by the non-custodial parent. That means that if you are the non-custodial parent and your court order provides for you to have “holidays pursuant to the guidelines” (or has other similar language), you are entitled to exercise parenting time from Friday, April 19th, at 6 p.m. until 7 p.m. on Sunday, April 21st.
If your court order was entered after March of 2013, then the holiday parenting time does not impact the rotation of regular weekend parenting time. In other words, if the Easter holiday weekend would not normally be your weekend with the children but the weekend before and after are your normal weekends, then you will have three weekends in a row of parenting time. If the Easter holiday weekend also aligns with your normal weekend rotation, the holiday parenting time will really only likely impact drop-off time (as typical weekend parenting time ends at 6 p.m. on Sundays).
If your court order was entered before March of 2013, the holiday parenting time does impact the rotation of regular parenting time IF the exercising of the holiday results in a parent having three weekends in a row. For example, if the non-custodial parent’s regular weekend is April 12-14 and then he/she has parenting time for Easter on April 19-21, the custodial parent would then get the weekend of April 26-28 and the weekend of May 3-5 would be the non-custodial’s and the parties would keep rotating as such until holiday or extended summer parenting time begins.
Other upcoming holiday parenting to be aware of (and which we will post more about when we get closer), especially while scheduling summer parenting time:
- Memorial Day, May 24 at 6 p.m. until May 27 at 7 p.m. (custodial parents in 2019)
- July 4th, July 3 at 6 p.m. – July 5 at 10 a.m. (non-custodial parent in 2019)
- Labor Day, August 31 at 6 p.m. until September 2nd at 7 p.m. (custodial parent in 2019)
If you have any questions about holiday parenting time or need to understand what your rights are under the Indiana Parenting Time Guidelines, the experienced family law attorneys at Cairns Law are available for a free thirty-minute phone consultation. Call 317-632-4711 to schedule your consultation; we are typically able to have the consult at the same time you call or within 1 business day if someone is not available.
Chances are that someone in your life has told you to make a will at some point or you have encountered some friends or relatives talking about making their own. You have probably heard the reasons why it is important to create a will; but, have you ever wondered what happens in the event that you die without preparing one?
Under Indiana law, if you die without a will, you are considered as dying “intestate.” This is simply legal terminology that identifies someone who dies without a will. This has certain legal implications, however, because Indiana law controls what happens to intestate estates and determines exactly how the property is distributed. This is all codified in Indiana Code § 29-1-2-1, et seq. While these can be relatively complex to figure out when there are a multitude of surviving relatives at various levels of representation, here are some simple examples of possible intestate distributions in Indiana:
- Suppose you die without a will and leave behind your spouse and at least one child: your spouse will receive 50% of the net estate and the other 50% will pass to your children.
- Or, suppose you die without a will and leave behind a spouse, no children, and at least one parent: your spouse will receive 75% of your net estate and your parent receives the rest.
- Suppose that you have remarried and do not have any children with your current spouse, but have children from a previous relationship: your current spouse will receive only 25% of the remainder of the fair market value of any of your real estate at your date of death minus any outstanding debts on the real estate.
- Suppose you are not married and have no children: your parents and siblings (or his/her children if a sibling predeceased you) will receive shares of your net estate with each parent being entitled to receive at least 25%.
- Finally, suppose you die with zero relatives: your net estate will go to the State.
Most people like to be able to exercise a little bit more control on how their property passes following their death (whether that means providing more for a subsequent spouse, giving to a charitable organization, or even providing for a non-relative) than dictated by Indiana intestacy law. Also, keep in mind that this does not even consider the non-property related issues that arise upon death if minor children are involved. If you would like to develop an estate plan that works best for you and your specific wishes, contact an estate planning attorney at Cairns Law to discuss all of your options.