• Divorce 101: Settlement Negotiations and Mediation

    What are settlement negotiations?

    In the context of divorce, settlement negotiations are attempts between parties to settle their case. If the parties have attorneys, the settlement negotiations are typically done between the attorneys (or the attorney and a non-represented spouse if one of the spouses does not hire an attorney). If settlement negotiations are successful, a settlement agreement is entered and sent to the Court for approval. Successful settlement negotiations allow parties to forego going to court.

    What is mediation?

    Mediation is a form of settlement negotiations with the added assistance of a trained mediator. For mediation, the parties typically meet at one office where the mediator goes back and forth between the parties to attempt to hash out a settlement agreement. Again, if successful, the mediation will result in a signed settlement agreement that is sent to the Court for approval and will allow the parties to avoid attending Court.

    What does mediation cost?

    Most mediators require each party to commit to paying one-half the cost of the mediator’s fees.The mediator bills on an hourly basis and, much like attorneys, hourly rates vary from mediator to mediator. During mediation, the parties can agree on an alternative arrangement for paying for the mediator. If you have an attorney, you will also have the added cost of paying your attorney’s hourly rate during the mediation.

    Does mediation work?

    In the experience of the attorneys at Cairns & Rabiola , mediation is often very successful. It allows parties to have a hand in crafting their own arrangement instead of leaving their divorce issues up to a judge.

    Are settlement negotiations and mediation confidential?

    Settlement negotiations are not confidential if done outside the confines of mediation. However, there is an Indiana trial rule that prohibits settlement negotiations from being admitted before the court.

    Mediation, on the other hand, is a confidential process. If mediation is unsuccessful, the opposing party cannot use the mediation against you. This means that you have freedom at mediation to make an offer without worrying that that offer may be held against you later.

    Cairns & Rabiola Divorce 101 Series: The purpose of the Divorce 101 series is to go through the possible steps of a divorce in Indiana. This series is based on the assumption that you will hire an attorney to assist you with your legal work. If there is a topic you’d like to see covered in our series, please email us at info@crfamilylegal.com .
    Cairns & Rabiola has a variety of options for clients seeking a divorce from flat fee divorces for uncontested matters all the way to representing clients in highly contested child custody and asset division cases. If you would like to speak with an attorney, call us today at 317-632-4711 or complete our contact form and we’ll call you within one business day.

  • Divorce 101: Discovery

    What is discovery?

    Discovery is legal phrase for the process of discovering facts in a case. There are a variety of discovery methods, including interrogatories, requests for production, third party requests for production, and depositions.

    What are interrogatories?

    Interrogatories are a series of questions that must be answered by the party they are served upon under oath. This means anything stated in the interrogatory can be used against you when you testify, so accuracy is of utmost importance.

    What are requests for production?

    Requests for production are lists of documents that you must produce. Typical requests may seek production of your bank statements, credit card statements, and paystubs. If a document is in your possession, custody or control (meaning you have access to the document), you must produce it. In other words, if you do not physically have your bank statements in your possession, but you can print them off of your bank’s website or you can go to the bank and get a copy, you are required to produce those statements.

    What is a deposition?

    A deposition is where one party questions the other party on the record. A court reporter is hired who records and transcribes the testimony, resulting in a transcript. This testimony is given under oath and can be used against you during a hearing, so again honesty is of utmost importance.

    Why should I serve discovery on my spouse?

    Discovery is not always necessary. However, if you are not fully aware of all of the assets and debts that both you and your spouse own, then discovery may be necessary. Additionally, discovery may be necessary to retrieve income information from your spouse. Many cases do not require formal discovery because the parties are able to disclose adequate information through their attorneys in an informal setting (for example, your attorney may ask the opposing attorney to provide your spouse’s bank statements and recent paystubs; if your spouse cooperates, formal discovery may not be necessary).

    Do I have to respond to discovery?

    Yes! Under the Indiana trial rules, discovery must be responded to by a party it is served on within 30 days. Now, it is possible to ask for an extension, either formally through the court or informally by asking the opposing party or attorney. If you do not respond to discovery, you can face sanctions from the court, including being ordered to pay the legal fees of the opposing party.

    Cairns & Rabiola Divorce 101 Series: The purpose of the Divorce 101 series is to go through the possible steps of a divorce in Indiana. This series is based on the assumption that you will hire an attorney to assist you with your legal work. If there is a topic you’d like to see covered in our series, please email us at info@crfamilylegal.com .
    Cairns & Rabiola has a variety of options for clients seeking a divorce from flat fee divorces for uncontested matters all the way to representing clients in highly contested child custody and asset division cases. If you would like to speak with an attorney, call us today at 317-632-4711 or complete our contact form and we’ll call you within one business day.

  • Divorce 101: Assets and Liabilities

    What assets and liabilities are divided in a divorce?

    Assuming no prenuptial or postnuptial agreement, all assets and liabilities are considered part of the “marital estate” for purposes of division in the marital estate. This means it does not matter how the asset or liability is titled – it still gets included in the overall estate. For example, if you own the marital residence in just your name and your spouse has a credit card in just his/her name, both the marital residence and the credit card are counted as parts of the marital estate?

    What date is used to value the assets and liabilities in the marital estate?

    Any date can be used between the date of filing of the petition for divorce and the final hearing on the divorce. In most divorce cases, the date of filing is the date that is used. It is important that all assets and liabilities use the same or close to the same date.

    How are assets and liabilities valued?

    For many assets and liabilities such as bank account, retirement account, credit cards, etc., the value is simply the account balance on the date your are using (see above). For assets that do not have an easy to determine balance, the fair market value is used. The fair market value is the value you could sell the item for on the market. For vehicles, the Kelly Blue Book value is often used. For real estate, an appraisal is ideal but market analysis and tax assessed value can also be used (typically, these are used in negotiations; if the case goes to court an appraisal is likely necessary if the parties do not agree on the value). For personal property such as furniture, the value is basically the value you could sell the item for at a garage sale. Occasionally parties will need/want to have personal property appraised as well.

    How is the estate divided?

    The Indiana Code provides that the Court “equitably” divide the marital estate. It is important to realize that the statute does not say the estate is divided equally. The court can then consider certain factors to determine whether an inequitable division is more appropriate. Some of these factors are the earning ability of each party, assets/liabilities contributed by each party at the beginning of the marriage, assets accumulated due to inheritance/gift. The reality is that a court has broad discretion in dividing a marital estate. Divisions have been upheld as disparate as 91% to Wife, 9% to Husband.

    With that said, most divorces settle and that means the parties determine what is fair in terms of dividing the estate. Most divorce settlements settle between 40/60 and 50/50.

    This division is representative of how the overall estate is divided. That means that each individual asset or liability is not divided by the percentage, but instead the estate is divided overall by these percentage. Our next question will show an example of this.

    Can you give me an example of the division of a marital estate?

    Once all assets and liabilities are determined, the total value of the net marital estate can be determined. Below is a made up marital estate, where the parties own a home with a mortgage, have some bank and retirement assets as well as some liabilities:

    In that case, the total net marital estate is $90,000. In order to divide this estate, 50/50, each of the parties would need to end up with $45,000. This 50/50 division could look like this:

    Note that while some of the assets are divided, some are assigned to one party entirely.

    A 60/40 division of this same estate could look like this:

    Do you have any questions that pertain to the division of assets and liabilities in a divorce? Feel free to leave a comment or complete our contact form and we’ll be happy to reach out to you.

    Cairns & Rabiola Divorce 101 Series: The purpose of the Divorce 101 series is to go through the possible steps of a divorce in Indiana. This series is based on the assumption that you will hire an attorney to assist you with your legal work. If there is a topic you’d like to see covered in our series, please email us at info@crfamilylegal.com .
    Cairns & Rabiola has a variety of options for clients seeking a divorce from flat fee divorces for uncontested matters all the way to representing clients in highly contested child custody and asset division cases. If you would like to speak with an attorney, call us today at 317-632-4711 or complete our contact form and we’ll call you within one business day.