The Indiana Lawyer is reporting that The Indiana Court of Appeals upheld the equal division of marital assets of a divorcing LaPorte County couple . The court also found that the trial court erred in its calculation of how much the ex-husband owes in child support.
Gwen Morgal-Henrich and David Henrich married in 2000 and divorced in 2011. When they married, Henrich adopted Morgal-Henrich’s minor son. They paid $105,000 as down payment on a $230,000 home, with that money coming from the sale of Morgal-Henrich’s home and money from her father. She also had life insurance polices that predated their marriage.
When they divorced, the trial court didn’t deviate from the presumptive equal division of marital assets dividing the couple’s property. The trial court ordered Henrich to pay $6,240 in child support for their son, who was emancipated as of the date of the final hearing in 2011. The judge calculated that Henrich’s weekly gross income was $390 based on his unemployment benefits and that he could pay $65 a week in child support from the date of the filing to the date of the final hearing.
Morgal-Henrich appealed, claiming she brought significant assts into the marriage, which should have created an unequal division in her favor. The judges cited Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002), in upholding the lower court on this issue. The trial court was not required to alter its equal division of the marital property to reflect Morgal-Henrich’s premarital assets, wrote Judge Michael Barnes in Gwen E. Morgal-Henrich v. David Brian Henrich, 46A05-1111-DR-645.
Regarding the child support order, however, the appellate court reversed and ordered a recalculation. The trial court should look at the weekly earnings of Henrich for the applicable time period of August 2009 to June 2011 and use an income averaging calculation to determine his weekly gross income due to his fluctuating income. Henrich does seasonal work and his income varied during the marriage depending on the availability of work.
Couples should be aware of the Indiana Code regarding marital assets. Property owned by either spouse before the marriage is included in the marital estate and subject to division and distribution. Ind.Code § 31-15-7-4 (1998). Indiana law requires that marital property be divided in a “just and reasonable manner,” id., and provides for the statutory presumption that “an equal division of the marital property between the parties is just and reasonable.” I.C. § 31-15-7-5. This presumption may be rebutted, however, by evidence of each spouse’s contribution to the acquisition of the property, the extent to which the property was acquired before the marriage or by inheritance, the economic circumstances of each spouse, the conduct of the parties relating to the disposition or dissipation of assets, and each spouse’s earning ability. Id
A way to ensure your individual assets are protected in the event of divorce is to execute a prenuptial agreement. Parties can contract for the disposition of assets and debts, purchase or sale of property, disposition of property upon separation, dissolution, death, or any other event, modification or elimination of spousal maintenance, making of wills or trusts, choice of law, and any other matter not in violation of public policy.
Remember, these suggestions are not meant to be legal advice. You should consult a family law attorney to discuss the specifics of your situation.