With the recent decision by the US Supreme Court that it will not hear an appeal of the 7th Circuit decision invalidating Indiana’s ban on gay marriage, same sex marriage is legal for the first time in Indiana! While it may not bring the same joy or fanfare, same sex divorce cannot be far behind.
Of course, many interesting conversations and questions will arise relating to the rights of same sex couples if and when they decide to part the from the bounds of now legal matrimony. So what should you keep in mind as a same sex couple when you contemplate divorce, or even as you marry and think through the what ifs and implications of a union that ends not in death, but a dissolution during life.
Indiana’s concept of marital property is actually a reason some male-female couples hold off or decide not to marry. This is true because the concept of the “marital pot” in Indiana is very broad and inclusive and, while not entirely impossible, it is very difficult to avoid having anything either partner owns or has rights in, excluded from the marital estate.
The standard applied, under Indiana law, for splitting marital property is: an equitable division with a presumption of a 50-50 split of marital assets and liabilities. Many courts in Indiana are very careful to apply the 50-50 standard without deviation, and in fact, the Indiana Code requires that the court state reasons why a deviation is granted, if requested by either party. While Indiana is not technically a community property state, the effect of the dissolution standard is to treat the marital estate as if it is all community property, unless reasons can be shown that such treatment would be inequitable to either party.
In effect then, this means that the party who brings more property to the marriage, inherits assets during the marriage, or whose earnings contribute the most to the marriage, is likely to be required to give up anything more than a 50% share of everything that both parties had at the time of separation, whether acquired separately or together.
To many people this feels drastically unfair. But it can easily be avoided with the drafting of a Prenuptial Agreement, and is also generally avoided as well by a decision NOT to marry (although Indiana common law recognizes an equitable distribution among couples who have lived together for many years).
The implications for same sex couples are generally no different than for any other couple, except for how lifestyle choices may affect the accumulation of assets – which varies from couple to couple regardless of gender or orientation. Nonetheless, suffice it to say, that if you or your mate have accumulated wealth prior to a marriage, and over many years, and decided to marry after the state recognized your union, dissolution of that marriage could result in some significant asset shifting that may never have been intended or contemplated by either party. If there is any risk of that occurring in a detrimental way, it would be wise to consider a “Post-nuptial Agreement”, which Indiana also recognizes as long as there is consideration and the agreement is not obtained through fraudulent or coercive means. In other words, you can protect yourself and your assets even after getting married, as long as you act in good faith.
Barring an agreement to the contrary, however, it is wise to expect a 50-50 split of all marital property in the event of a divorce.
Alimony, Maintenance and Settlement Payments
Indiana recognizes alimony in only a few extraordinary circumstances: (1) by agreement of the parties, (2) full and continuing physical disability of one of the parties, or (3) temporary incapacitation of one the parties, e.g. the need to complete a degree that has already been started in order to make up for lost time and income in the work force. By statute, the last item is actually considered temporary maintenance, but most couples agree to treat it as alimony when the divorce.
Often if one party has earned both a high income and significantly more than the other party, their attorneys will help them craft an agreement that yields payments over a period of time to the lesser earning spouse. In reality, this is frequently done as a property settlement to equalize the shares of the parties in the marital estate, but it is treated as alimony to allow the paying party to receive a tax deduction while the payments are being disbursed.
Custody and Parenting Time
The most difficult issues in divorce arise over custody and parenting time. To the extent a couple does not share children, they do not have to face the challenges of custody fights, which are never easy and always costly. In same sex separations, it can be even more painful and difficult. Among female couples, one partner may have contributed DNA and the other may have borne the child(ren). Biologically, the children are 100% related to the donor parent. Yet the courts, at the county level, tend to favor the birthing mother over the other parent in such situations (under current Indiana law, she is considered the mother of the children). With the recognition of same sex marriage, however, this will necessarily change. The other married person will now likely have to be counted as an equal parent with the birthing mother. Indiana law presumes that children borne during a marriage, have two parents.
Male couples face a different perspective, however. Since neither gives birth to the child, only one can be recognized as a parent, via paternity, unless both adopt the child together. Regardless of the biological connection, then, it is wise as a male parent in a same sex marriage to formally adopt the child as early as possible in order to guaranty that your rights are going to be protected.
The recognition of same sex marriage brings a plethora of interesting legal issues with it in Indiana. It’s wise to consult with a competent family law attorney to help you navigate those issues and be sure you’re protected in the ways you desire. Andrew Thompson is a licensed family law attorney in Indianapolis with 24 years experience handling challenging divorce, custody and family law issues. If you would like a free consultation with Mr. Thompson, please contact him at (317) 604-1276 or via email at firstname.lastname@example.org today.