Bays Family Law

Indianapolis Family Law Attorneys

317-769-0630

Court Sets Horse Price

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Figuring Out Extra-Curricular Costs

Many families can’t agree how much to spend on child activities.  One parent usually wants to spend a lot more than the other. That difference in priorities can really cause problems for parents who are divorced or live apart.

In the recent T.M.B. case, the parents squabbled over horse costs for their teenage daughter. Their original Court order required Father was to pay horseback riding fees and buy the child a horse and a saddle. The child grew passionate about horseback riding, but Mom and Dad couldn’t agree how much to spend on a horse.

Mom wanted a horse in the $10,000 to $15,000 range. Dad thought that was too much. He came up with a list of the horses he was willing to buy, offering to purchase one with a price tag of $800. They couldn’t reconcile their different views. So, no horse was ever purchased, and the parents went back to court.

The child’s riding instructor testified at the hearing. She stated that the child began training in the hunter-jumper style of riding one year ago. The child used a horse and saddle that were provided by the stable. The instructor testified that a horse capable of hunter-jumper riding would typically cost $10,000 to $15,000. The instructor also testified that an $800 horse would be too old for hunter-jumper work.

The trial court issued a new order that tried to appease both sides. The new order had these requirements:

  1. The parents must exchange lists of potential horses in the $3,000 to $10,000 price range.
  2. Each parent must visit the horses on the lists.
  3. Mom, Dad, and Daughter all have to be “involved” in the purchase decision.
  4. They must consider the “opinion and assistance” of the riding instructor.
  5. If they still couldn’t agree after all that, Dad gets to make the final decision.

The case went up on appeal.  The Court of Appeals issued an opinion that approved of the trial court’s new order.  The appellate court found that the initial order’s requirement to buy “a horse” was ambiguous because it could be interpreted in numerous ways. What breed? What quality? In this case, Dad wanted to buy an $800 horse, and Mom expected him to spend at least $10,000.

The Court of Appeals found that:

“The trial court did not err in clarifying the term “horse” to be a steed that will meet Child’s needs without being unduly expensive, or in [the] procedure for the parties to choose a suitable horse.”
                                                            – In re T.M.B., 18A-JP-2907 (Ct. App. 2019)

If you have questions regarding child support and extracurricular activities, please call us at (317) 769-0630 to set up a consultation to discuss your situation.

If you are not quite ready to meet with one of our experienced attorneys, please follow us on social media, including Facebook, Twitter, or LinkedIn.

Child Support Can Continue Past 19 for High School Students

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Effective July 1, 2019:

As of July 1, 2019, the law governing termination of child support has been modified. Under prior law, child support stopped on a child’s 19th birthday, unless the child was incapacitated.

Parents may now request child support for children 19 and over still enrolled in High School.

This caused a problem for families with teens who were still in high school at 19. This modification is intended to cover a gap discovered after the age of child support termination was lowered from 21 to 19 in 2012. The bill’s author, Phillip GiaQuinta wrote the bill after hearing about

cases in which these kids are forced to make a difficult choice between finishing high school and getting a job to support themselves, and it’s because the law prevents them from receiving child support.”

If your child is 17-18 and will still be in HS at 19, file your notice now.

Child Support past the child’s 19th birthday is not automatic. You have to file a notice with the court that issued the child support order. There are some strict timing requirements.  The court notice can’t filed until the child is 17 years old, and it must be filed before the child’s 19th birthday. The notice has to include the child’s expected graduation date and proof of high school enrollment.

Once a notice is filed, the other parent has 30 days to object. Unless an objection or request for hearing is filed by that deadline, the court may automatically extend support without a hearing.

The language of the modified statute can be found online at: http://iga.in.gov/legislative/2019/bills/house/1520#document-6ec262b5

If you need to modify your child support or need help preparing your Notice to the Court, please call us at (317) 769-0630 to set up a consultation to discuss your situation.

If you are not quite ready to meet with one of our experienced attorneys, please follow us on social media, including Facebook, Twitter, or LinkedIn.

Tips from the Kids:

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A Do NOT Do This List for Divorcing Parents

As a child, divorce is an entirely different experience. A child is trying to find the new normal all while dealing with a major upheaval in how they are cared for and who is caring for them.

When adults get divorced, they are often hurt, depressed, sad and/or angry. Emotions get even messier when you are a child or teenager whose parents are getting divorced. A child tries to find the new normal all while dealing with major upheaval in how they are cared for and who is caring for them. The child, as well as an adult, grieves the loss of the old relationship and often living with both parents. Children’s brains are still developing. Part of childhood is learning to cope with hormones, changing emotions, and changing bodies. Grief throws an additional hurdle in the way for these children. Frequently, they must also process the anger, hurt, depression, and sadness that their parents are exhibiting verbally and non-verbally. Each child grieves in his/her own way. The child must adapt the unique relationship s/he has with each parent to fit life’s new circumstances.

There are ways that parents can make the transition easier, lowering the hurdles faced by the child. The parents’ behavior during and after the divorce makes the biggest difference in positive outcomes for the child. In 2013, Women’s Day Magazine’s, Natasha Burton, wrote “10 Things Children of Divorce Wish Their Parents Wouldn’t Do. Avoid these post-marital missteps to stay in your kids’ good graces,” which provides excellent advice and insight from the adult children of divorce. The article provides a variable DO NOT DO THIS List including:

10 Things children of divorce wish their parents wouldn't do.
  1. Badmouthing the other parent (even if it is true).
  2. Discouraging your kids from talking about the other parent (your ex).
  3. Telling the kids all the dirty details of the divorce or information about what is happening in Court.
  4. Keeping the kids completely in the dark and not telling them you are getting divorced.
  5. Skipping your kid’s events to avoid your ex, unless there is an active restraining order preventing it.
  6. Making the situation (the divorce) all about you.
  7. Making the kids feel guilty about time with the other parent;
  8. Justifying your bad behavior (especially behavior that was a major cause of the divorce) to your kids.
  9. Putting your kids in the middle.
  10. Making everyone, including your children, feel your unhappiness.

The article also provides recommendations from professionals on what divorcing parents’ should do instead. We would also add the following to the DO NOT DO THIS List:

Not Allowing your Child to Grieve

Let your child grieve

Children often feel completely alone during and after the divorce. Being innately in-tune with their parent’s hurt, they believe they aren’t allowed to feel sad, hurt, or grief when losing a parent or stepparent. It’s important to remember to continue to put their needs first. Remind them that they are allowed to be sad or hurt that Mommy moved out or that Stepmother isn’t around anymore. Help them find support or assistance through therapy and divorce support groups for kids. Remind them they are not alone, but do not minimize their feelings.

Making Your Child ask the Other Parent for Child Support, Healthcare or Extracurricular Costs

While the article touches on this in Tip 9, it is important to remember, that money conversations should remain between the parents. A child should not be made to gopher money back and forth. This causes a child to feel devalued and can lead to manipulation by child pitting both parents against each other to get the result the child wants. In the age of digital banking and Venmo, AndroidPay, ApplePay, etc., there is very little need to exchange paper checks or cash back and forth. Keep it between the parents.

Believing Everything your Child Says About the Other Parent

Children from a very young age learn to survive and manipulate to obtain desired outcomes. When parents are married, this manipulation is easily discovered and the parents successfully communicate about their children. However, when parents are separated this manipulation often goes unchecked leading to mental health issues. The child that excels at manipulating his or her parents usually suffers from low-self esteem and fears of abandonment. Typically this child is unable to compromise, accept failure, and cope with undesired outcomes. This causes problems in the child’s future career, friendships, and romantic or family relationships.

Not doing these actions will set you and your co-parent (your ex), on the path to raising well-adjusted children. While divorce is never “easy,” it can be “less hard.” Make it “less hard,” after all, it’s for the children.

If you are considering divorce or have questions regarding how bad behavior might affect custody and/or parenting time, please call us at (317) 769-0630 to set up a consultation to discuss your situation.

If you are not quite ready to meet with one of our experienced attorneys, please follow us on social media, including Facebook, Twitter, and LinkedIn.

Parental Relocation Law Amended

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When parents with child custody orders move, current Indiana law requires a detailed formal notice 90 days in advance.  That notice is required, even if you move from one apartment to another in the same complex. 

Starting July 1, 2019, that law will change, thanks to Senate Bill 292 that was enacted with the assistance of the Indiana State Bar Association’s Parental Relocation Task Force.  Bays Family Law attorney Donna J. Bays was part of the task force, that spent months gathering information and analyzing the impact of each aspect of the relocation law.  The amended law exempts some parents from the formal notice requirement and reduces the standard notice period to 30 days.

What you need to know

The new law applies to every party to a child custody, parenting time, child support, paternity, and grandparent visitation case, or when a paternity affidavit has been executed.

Informal Written Notice

You must provide written notice of the following to all other parties (usually the other parent):

  1. Your home address, and
  2. All of your telephone numbers, and
  3. All of your email addresses

Texts and email will satisfy this requirement. 

Exemptions from Further Requirements

No further notice is required if:

  1. The move will reduce the distance between homes, or
  2. Your child won’t have to change schools or increase the distance between homes by more than 20 miles, or
  3. The relocation is covered by a prior court order

Formal Court Notice

If you don’t qualify for one of those exemptions, you have to file a formal Relocation Notice with the Court and send a copy to every other party through certified mail.  The Court Notice must be filed 30 days before the move or 14 days after you learn of the move, whichever is sooner.

Contents of Court Notice

The formal Court Notice must contain:

  1. Your new address;
  2. All of your phone numbers, including mobile – even if they are not changing;
  3. Date of the move;
  4. Reasons for the move;
  5. A statement advising the other party whether you think that the court orders on parenting time or grandparent visitation should be modified;
  6. A statement informing the other party that s/he has 20 days to file a response;
  7. A statement informing the other party of the right to ask the court to prevent the relocation;
  8. A statement informing the other party of the right to file a motion seeking to modify child custody, parenting time, support, or grandparent visitation; and
  9. A statement informing the other party that all current orders will remain in effect until modified by the Court.

Safety Concerns & Domestic Violence

If the Court finds that sharing information would endanger a parent or a child, the court may issue an order excusing that parent from revealing information in the formal Court Notice or the informal written notice.  This exclusion would typically apply when there is a history of domestic violence, stalking, or threats of violence.

Response to Court Notice

The other party has 20 days to file a response with the Court.  The law gives 3 options for the content of the response:

  1. I don’t object, and we don’t need to modify the current court orders;
  2. I don’t object, but I want a hearing because we need to modify orders on child custody, parenting time, grandparent visitation, or child support; or
  3. I object to the child’s relocation and want a hearing and stop the relocation or modify custody, parenting time, grandparent visitation, or child support.

If a hearing is requested, the Response has to state whether the parties tried to resolve the issue through mediation or other alternative dispute methods.

Court Hearing on Relocation

Even when the formal Court Notice is not required, any party can ask the Court for a hearing to prevent a child’s relocation or modify child-related orders.  When a hearing is requested, the Court is required to hold a full evidentiary hearing on whether to allow the relocation or modify child orders.

If you have or have questions regarding relocation or modification of custody or parenting time/visitation, please call us at (317) 769-0630 to set up a consultation to discuss your situation.

If you are not quite ready to meet with one of our experienced attorneys, please follow us on social media, including Facebook, Twitter, and LinkedIn.

BFL Attorney Donna J. Bays Attends Relocation Bill’s Signing

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Gov. Holcomb was joined by ISBA Parental Relocation Task force members Donna J. Bays, Judge Lisa Berdine, Judge Julie Verheye, Sen. Randy Hood, Megan Wells, Jan Keefer, Andrew Soshnick, and ISBA Legislative Counsel Paje Felts.

On May 29, 2019, Bays Family Law’s own, Donna J. Bays, stood with other Indiana State Bar Association Parental Relocation Task Force members as Governor Eric Holcomb signed 2019 Senate Bill 292. Donna was appointed to the ISBA Parental Relocation Task Force in 2018. The task force met for more than a year working to develop proposed legislation simplifying Indiana’s relocation statute easing relocation restrictions often placed on divorced or separated parents.

Senate Bill 292 goes into effect on July 1, 2019 enacting several changes to Indiana’s relocation requirements.

Want to know more about Senate Bill 292’s requirements? We have a blog post – Parental Relocation Law Amended – that highlights and discusses the changes.

If you have or have questions regarding relocation or modification of custody or parenting time/visitation, please call us at (317) 769-0630 to set up a consultation to discuss your situation.

If you are not quite ready to meet with one of our experienced attorneys, please follow us on social media, including Facebook, Twitter, and LinkedIn.

Mythbusting

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10 Divorce Myths That Just Aren’t True in Indiana

You can find just about anything with a Google search.  But the fact you read it on the internet doesn’t make it true.  It can be hard to tell what’s true when you’re clicking through the internet.  Here are some myths we hear over and over again – that just aren’t true:

Myth 1 – If your spouse doesn’t want to end the marriage, the judge might not give you a divorce.

Under Indiana law, the court will grant a divorce if it finds that there has been an irretrievable breakdown of your marriage.  If you testify that: (a) Yes, the marriage is irretrievably broken and, (b) no, there’s nothing that can be done to save it, then you will get your divorce.  Your spouse may be able to slow the process down, but cannot stop it.

Myth 2 – Your divorce will be final in 60 days.

Indiana has a mandatory 60-day waiting period from the date when you first file the paperwork asking the court for a divorce.  Sixty-one days is absolute shortest period of time before a divorce can be final.  In central Indiana, you might be able to get divorced in a couple of months if you and your spouse agree on everything.  For most of couples, a divorce takes 4-9 months.  For high-conflict couples, it can take even longer.  (Sorry, but that’s the truth.)

Myth 3 – Courts favor Moms in custody fights.

The old Maternal Preference Rule has been prohibited for decades.  As a matter of law, parents start on equal footing, regardless of gender.  Do women get custody more often?  Yes.  But that’s a reflection of cultural choices made before the divorce.  Stay-at-home Dads are no longer an oddity, but stay-at-home Moms definitely outnumber them. We have not seen any judicial gender bias in central Indiana.  The courts in our area focus on what’s best for the children without regard to parental gender.  (And, yes, we have won custody cases for both Dads and Moms.) Gender may come into play when an infant is breast feeding.

Myth 4 – If your ex doesn’t pay child support, you can deny parenting time (visitation).

Wrong.  Child support is not an admission price you pay to see the kids.  Trying to treat support as a condition for parenting time can get you in a lot trouble.  Refusal to allow the non-paying parent access to the child can even land you in jail.  And it works both ways:  Denial of parenting time is not grounds to stop paying child support.  Refusing to pay child support can put you in jail, too.

Myth 5 – Teenagers can pick which parent they live with.

Nope.  Children do NOT get to pick who they live with.  Ever.  At least not until they turn 18.  Or get married.  Or enlist in active duty for the U.S. Armed Forces.  In custody cases, the Court is required to consider the wishes of the child, with greater weight given to the wishes of a child over the age of 14.  But the Judge can find that the child’s best interests override his/her wishes.  The child has a voice, but not a vote.

Myth 6 – You can give up child support in order to settle the case.

Nope. The number one reason we’ve seen for Court refusal to approve settlements – child support that is too low or not required at all.  Indiana has a Child Support Calculator that must be applied unless deviation is in the child’s best interests.  In the eyes of the law, it is your child who has the right to financial support, not you.  So, a parent cannot agree to give up the child’s right. 

Myth 7 – You’ll get more property if you testify about your spouse’s affair, sexual preference, gaming obsession, or . . .

Indiana is considered a “no-fault” state. Evidence of bad behavior is severely restricted. Talking about the affair on the witness stand can make you seem petty. Most courts don’t want to hear about an affair, unless it actually caused harm to your children or the martial estate.

Myth 8 – If property is titled to me (in my name, bought by me), the Court can’t give it to my spouse.

When someone dies, probate courts honor legal title when deciding who gets what. Divorce courts do not. In divorce court, all property owned by either party is up for grabs in the property division. It doesn’t matter if it’s titled jointly or individually. The divorce court can change title in order to achieve an equitable division. The only way to protect or exclude property is with a valid premarital or post-nuptial agreement.

Myth 9 – The Court always divides the property 50/50

Indiana law has a presumption that an equal division is just and reasonable.  But that presumption can be rebutted.  Factors that can justify deviation from 50/50 include premarital property, gifts, inheritances, and earning abilities of the parties.

Myth 10 – Hiring a lawyer will turn my divorce a battle.

If you hire the right lawyer, it should make your divorce smoother and easier.  Getting divorced can put you on an emotional roller coast where it’s hard to make wise decisions.  Your attorney serves as your voice of calm reason.  When you feel too sad, mad, or frustrated to work things out, your attorney can step in and help you make plans for the future, decide what’s worth fighting for, and where to compromise.  Lawyers settle the vast majority of their cases without going to trial.

If you are considering divorce or have questions regarding your divorce, please call us at (317) 769-0630 to set up a consultation to discuss your situation.

If you are not quite ready to meet with one of our experienced attorneys, please follow us on social media, including Facebook, Twitter, or LinkedIn.

Can I Still File Joint Tax Returns While the Divorce is Pending?

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Should You?

In order to file a joint tax return, you have to be married at the end of the tax year. The IRS looks at your marital status as of 11:59 p.m. on December 31. Filing a divorce case doesn’t change that; only a final decree of dissolution makes you unmarried in the eyes of the law. So, yes, you can file joint returns if the case is still pending at the end of the tax year.

Should you file a Joint Return while getting Divorced?

If you decide to file jointly, you need to decide how to share any refund or tax liability. If you split the refund, IRS form 8888 lets the IRS separate the refund into multiple bank accounts. That way, you won’t have to rely on one another for reimbursement.

Reasons to File Separately

For most couples, the total tax bill will be lower if you file a joint return. The main disadvantage of filing jointly is that both spouses are jointly and severally liable for taxes on the return, including any tax deficiencies, interest, and penalties. So, how to decide?

The most common reasons to consider separate filings include:

  • Filing separately lowers the overall lower tax burden for the family.
  • You suspect your spouse may be under-reporting income.
  • Filing separately will reduce income-based repayment amounts for student loans.
  • In recent years, the other person has failed to timely file tax returns.
  • The other person is already in some kind of tax trouble.
  • The other person is at high risk to get audited.
  • The other person is self-employed or runs a very small business, and you think some of the details of the business finances reported on the return might be questionable.

If You Don’t File Jointly, What Filing Status Do You Use?

You must file either “married filing separately” or “head of household,” depending on your circumstances. Head of Household is usually advantageous. To be eligible to file as Head of Household, all of the following must be true:

  • You did not live together at all during second half of the year.
  • A qualifying child or dependent lived with you for more than half the year.
  • You paid more than half the cost of household expenses for more than half the year.

Who Can Claim the Children?

Who can claim the children?

If you file separately, you have to decide who gets to claim the exemption for each child. Most parents share these, unless one spouse earns too much to take advantage of them. If you can’t agree, the parent who had the most overnights with the child usually gets the exemption, but claiming all the kids over the other parent’s objection may not make you look good to the judge. If you both try to claim the same child, you are asking for an audit, and your returns may be rejected.

If you are considering divorce or have questions regarding how your divorce could affect your tax filing options, please call us at (317) 769-0630 to set up a consultation to discuss your situation.

If you are not quite ready to meet with one of our experienced attorneys, please follow us on social media, including Facebook, Twitter, or LinkedIn.

Should I tell the IRS that my spouse is a tax cheat?

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You’re getting divorced.  You suspect that your spouse committed tax fraud.  Maybe you know – – or think you know – that:

Should I tell the IRS my spouse cheated on his/her taxes?
  1. Cash payments to a small business didn’t get counted.
  2. Personal living expenditures were deducted as business expenses.
  3. Income from side work that didn’t make it to the tax return.
  4. Foreign bank accounts that didn’t get reported.

What do you do? 

Consult with an experienced divorce lawyer.  Do not – we repeat – DO NOT call the IRS tip line until your attorney has heard all of the facts and evaluated all of the risks that such a call can create for you, as well as your spouse.

The first question we ask when this comes up:  How do you know?  Is this merely suspicion?  Did somebody tell you?  Or do you have personal knowledge of the facts?  There’s a big difference between thinking that the cash s/he is always waiving around wasn’t reported and knowing that your plastic surgery was deducted as an employee health benefit because you signed the partnership return.

Which leads to Question No. 2:  Did you file a joint return?

If you signed off on a joint return and knew of the deception, you could be charged with conspiracy to commit tax fraud.  That is a serious crime.

Even if you’re not on the hook, it takes careful analysis to determine whether it’s in your financial best interests to air this issue. 

You may be tempted to make a report so you can get an IRS whistleblower award.  But understand:

  • There’s no award unless the IRS actually collects additional tax, based on your tip.
  • You may have heard that you can get at 30% of the tax at issue.  That’s the max; it can also be 15%.  And that’s 30% of the money that’s actually collected (paid).
  • It usually takes about 6 years to get any payment for a whistleblower award.

And if your ex is caught and convicted of tax fraud, that usually means:

  1. There’s a lot less income for child support.
  2. There may be less money to divide in the marital estate because all those taxes and penalties have to be paid.
  3. Your children will have to live with the knowledge that their parent is a criminal.
  4. Your children may be teased or bullied at school because their parent is a in prison.

Even if you don’t tell the IRS, think hard before putting proof of tax fraud in evidence.  There are reported cases where tax evasion came out in a divorce trial, and the judge reported it to the IRS.

With complex issues like tax fraud, your best bet is to seek the advice and counsel of an experienced professional.  The pre-eminent attorneys at Bays Family Law have successfully handled these issues many times and are here to help you make the right decision.

If you are considering divorce or have questions regarding how tax fraud could affect your divorce, please call us at (317) 769-0630 to set up a consultation to discuss your situation.

If you are not quite ready to meet with one of our experienced attorneys, please follow us on social media, including Facebook, Twitter, or LinkedIn.

Getting through Valentine’s Day After a Divorce

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Even with the help of Valentine’s candy, there’s no way to sugarcoat it: Divorce sucks.

On February 14th, no matter where you go, you’re bombarded with hearts and flowers, and happy couples linking arms. It’s plastered all over the TV and social media.

How to deal with it? Donna remember’s a Valentine’s Day sermon at church where the minister tried to help by encouraging the congregation to use Valentine’s Day to celebrate agape love and give our love away to the world. Agape love is important, but frankly, that didn’t help her deal with V-Day. It felt like bovine excrement.

Hopefully the following tips will help you survive – and maybe even thrive – on Valentine’s Day this year:

  1. No First Dates. You may be tempted to surf the dating apps to fill Valentine’s night. Resist that urge. Internet dating is full of no-shows and last-minute cancellations. That can make you feel even more rejected. Even if your date shows up, you’re likely to feel awkward and uncomfortable, especially in a room full of couples in love. Don’t set yourself up for failure.
  2. Join a Meetup Group. There are lots of meetup opportunities for fun activities on V-Day. If you enjoy board games, go to a board game meetup. If you’re a dog lover, join a dog walk meetup. Check out Meetup.com, Facebook Events, IndyHub, or Eventbrite.
  3. Make Some Resolutions. Think of Valentine’s Day like New Year’s – for your love life. It’s a chance to start over on things that didn’t go so well last year. Write out a set of relationship resolutions. Resolve to develop a fresh outlook on love and life. Out with the old and in with the new!
  4. Stay in the Present. Avoid thoughts about your ex or the relationship. Reminiscing about the happy times you had together amplifies your sense of loss. Ruminating about what went wrong can get you stuck in a place of anger and resentment. Throughout the day, remind yourself to focus on this moment and getting the most out of it.
  5. Be Smart About Social Media. While connecting with friends is important, take it easy on Instagram and Facebook on V-Day and for a couple of days afterward. That might seem tough, but you don’t need to be confronted with sappy Valentine’s posts with happy couple pics. And remind yourself that nobody’s real life is as good as their posts. That stuff has been sanitized to make them look good. Trust us on this – we’re divorce lawyers, and every day we hear about how unhappy people really were – long before they make it to our office.
  6. Do That Thing You Always Loved but Gave Up for the Relationship. You love horses, but your ex couldn’t stand the smell of a barn? Go for a ride. You love video games, and your ex thought they were childish? Buy the game you’ve been coveting or head out to a gaming center. Get back in touch with the activities that make you happy.
  7. Get a Pedicure. Treat yourself to a pedicure. You deserve it. And yes, this applies to guys. Men, if you’ve never had a pedicure, you won’t believe how good the foot massage feels.And, since sitting around doing nothing can get boring, bring a good book. You can enjoy the heavenly feel of a foot rub while getting lost in the story. Relax your body AND stimulate your brain, all at the same time!
  8. Reality TV as Therapy. In years past, whenever my life felt really bad, I would watch episodes of the Jerry Springer Show – nothing in my life was that bad, so the comparison felt really good. Shows that can help like that include: “Iyanla Fix My Life,” “Dr. Phil,” and “Marriage Boot Camp.” Watch a few of those and you’re bound to realize there are things much worse than your life, even if you spend V-Day alone.
  9. Laughter is the best medicine. Make yourself laugh. If you find yourself home alone on Valentine’s night, watch a comedy or stand-up special that you have never seen before. YouTube, Netflix, and Amazon Prime all have comedy specials catering to every type of humor.
  10. Move Your Body. In times of emotional crisis, there’s a drop in dopamine, so your brain transfers that pain to the body. That’s why breakups feel so crummy. Exercise can counteract that. When you throw yourself into a hard workout, your body releases endorphins, which boost happiness and lower stress levels. So, hit the treadmill. It’ll do wonders for your self-esteem. If spin class is not your idea of fun, try hot yoga. It promotes deep breathing and can calm your mind, body, and soul.
  11. Gratitude. Instead of focusing on what you don’t have, pay attention to what you do. Make a list of the top 5 things you are grateful for. When everything seems to be going wrong, focus on gratitude can put things in perspective.

“I’m grateful for my family, my dog, a job that feeds my soul, clean running water, and trees.” – Donna

“I’m grateful for my renewed health, my dog, my family, my friends, and coffee.” – Jennifer

Finally, if none of this helps and you just cannot cope, please reach out to a crisis hotline or go to the nearest ER. If you’re feeling lonely, confused, or scared, these resources can help. You don’t have to be suicidal. The National Suicide Prevention Lifeline at 1-800-273-8255 is staffed 24/7. They have an online chat service at https://suicidepreventionlifeline.org/chat/.

If you are going through a divorce or considering divorce, please call us at (317) 769-0630 to set up a consultation to discuss your situation and your legal options.

If you are not quite ready to meet with one of our experienced attorneys, please follow us on social media, including Facebook, Twitter, and LinkedIn.

Can I Keep the House? Should I?

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Deciding whether to keep the house is intensely personal. It is, after all, the house you built your family in together, that you likely saved for and spent hours decorating. Deciding to keep the house is an emotional decision that can have huge financial consequences. When making this important decision you need to consider both the emotional and financial factors to make the decision that is best for you and your changing family.

THE KIDS

A lot of parents want to keep the house for the sake of the kids. The adage is that children need stability and divorce can be chaotic. So, staying in the house looks like a good solution. But children are amazingly resilient and often adapt to change faster than adults, given the right context. In fact, many children transition more easily when everything changes at the same time, rather than piecemeal. The general rule with making changes to a child’s lifestyle or environment is to present the change as a positive thing – kids take their cues from their parents. If the parents act like moving to a new home is devastating, the children will respond similarly.

VALUE

During a divorce the value of the marital home can be a huge bone of contention. Often, the party who wants the house thinks it is worth a lot less than the person who doesn’t. So, how do you determine value without selling the home?

  • You can get market analyses from Realtors in your area. This will get you a general estimate of competitive listing price. There’s no fee for this, but understand that Realtors work on commission. They may over-value the home to get the listing or under-value it for a faster sale.
  • You can pay a licensed real estate appraiser to value the property. The problem is that appraisals are really just estimates based on past sales for “comparative” homes. Your home could ultimately sell for much more – or much less.

Before 2008, you could count on real estate to appreciate in the future. Real estate was viewed as a good part of any financial portfolio. That’s no longer the case. Will your particular property be a good financial investment that will grow in value? Nobody knows. The real estate market can be fickle. Thus, when considering whether to “buy out” your spouse’s interest in the marital home, you will have to accept the risk that you may overpay for that privilege.

BUDGET

Does the cost of your mortgage, real estate taxes, and insurance exceed ⅓ of your income? If so, you could end up “house poor” – able to pay for the house, but not the little extras that make life pleasant. With rising interest rates, it is safe to assume your monthly payment will go up if you have to refinance the mortgage.

So . . . even if you are charmed by the monthly payment, understand that it’s only one part of the cost of home ownership. If you take the house, you will be stuck with all repair costs. There is a big difference between the costs for a new home vs. one that is likely to need major fixes. How old is the roof? Furnace? Air Conditioner? Refrigerator? Will you have the means to pay for replacements?  How about lawn care?  Pool services?  Plumbing repairs? 

If you have condo fees or homeowner’s association dues that are not part of your mortgage payment, budget for them. And consider the risk of special assessments.

Finally, think hard before relying on child support to make house payments. Are you certain that the other parent will actually pay on time? Support can be modified after the divorce. Anything from job loss to an increase in the custodial parent’s income can be grounds to reduce support.  Support also goes away when the youngest child is emancipated, which may be well before the home is paid off.

HASSLES

There are pros and cons to staying vs. moving.  If you stay, you don’t have to move! No need to shop for apartments.  No need to pack.  No movers to deal with.

If you want to keep the house, consider the non-monetary costs of home ownership. Your spouse won’t be around to share household duties.  You will have to find time to vacuum, cut the grass, shovel snow, clean the whole place, and change the furnace filters. Even if the kids do some of these chores, you will have to supervise the work – which can be more time consuming than doing it yourself.

Your marital home may not be suited to your new lifestyle.  Is it the right size for the new you?  Do the features match your circumstances?

EMOTIONS

You may have a strong emotional attachment to your house. Your engagement photos were taken on the back patio. Each child’s birthday height is marked on the kitchen doorframe.  You remember when your toddler stepped in paint and left that tiny footprint. Or maybe you just want to make sure that your ex’s new lover can’t move in. Seeing a therapist may help you work through complex decisions while grieving the loss of both your home and your relationship.

Divorce won’t take away your happy memories.  You can take photographs of memorable historical remnants like the baby’s footprint. Give yourself time to grieve the end of your marriage, but remember that keeping the house is a financial decision and emotional baggage will not pay your mortgage. As you look for emotional balance, we recommend the following exercise if continued possession is otherwise not in your long-term best interests:

  1. Make a list of each reason why you like the home.
  2. For each item, ask: How could I get that somewhere else?
  3. Investigate the cost/savings that would take.

Some examples:

  • Love the plantation shutters and built-in bookcases?
    • Perhaps another home will have those features or you can have them installed.
  • Are peace and quiet most important, or do you want to live somewhere with lots of kids and neighborhood potlucks?
    • There are probably plenty of homes that match your preference as long as you understand your priorities.
  • Did you build built the deck or remodel the kitchen with your own hands?
    • Perhaps an affordable home that needs some tender loving care would let you build similar pride of ownership at a lower cost.
  • Are your children going to miss having all their nearby friends?
    • Those friends will be a videochat away and adapting to a new social environment is an important skill for children.

OTHER THINGS TO CONSIDER

Time.  How long do you want to live there?  If you plan to keep the house forever, asking for it in the divorce makes more sense than if you plan to move in a couple of years.

Trade-Offs.  Most divorces split the marital assets 50/50. What do you have to give up in other assets to keep the house?

Cost of Alternative Housing.  How much will replacement housing cost?  What can you afford under post-divorce?

Income Tax on Home Sales.  Will there be a profit when your house sells?  If the profit on your house is between $250,000 and $500,000, the tax will probably be higher after your divorce, so selling now might make more sense.

Re-Financing.  Some folks think that a Quitclaim Deed gets you out of the mortgage.  It does not.  The deed you sign transfers ownership of the property.  It has nothing to do with the mortgage debt. Most mortgage companies won’t take either spouse’s name off the mortgage when there’s a divorce. If you took out a joint mortgage, the only way to remove one name is to sell or refinance.  Talk to at least two mortgage brokers to find out whether you qualify to refinance and what your payments will be under current interest rates.

Tax Deductions.  If you keep the house, you will get future tax deductions related to the property. Whether that is actually any help will depend on your total financial circumstances. Check with your tax professional before relying on this.

 

If you are considering divorce or have questions regarding property division, please call us at (317) 769-0630 to set up a consultation to discuss your situation.

If you are not quite ready to meet with one of our experienced attorneys, please follow us on social media, including Facebook, Twitter, or LinkedIn.

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Bays Family Law
7633 E. Stonegate, Drive
Zionsville, IN 46077
Hours by appointment.

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