Failing to Include Assets and Value Them and Informal Loans from Parents and Third Parties
While emotion often overrides divorce proceedings, particularly where child custody is in dispute, it is key to identify if sufficient evidence of all assets of the marital estate are present. Marital assets also include debts. The Indiana Court of Appeals recent Barton v. Barton case makes this point.
First, loans versus gifts from parents are difficult to determine. It is the litigant’s burden of proof to establish in the evidence the funds from a parent or a third party are a loan instead of a gift. Typically, this is established by some “loan” document, and may even include a standard form found on the web (although such may have other legal problems), interest, and evidence of repayment or plans to repay. Without this, the parent who made this loan may have it treated as a gift.
Second, pensions and other retirement benefits—except as excluded by federal law—are a part of the marital estate. However, they have complex valuation methods that must be followed in order to error, potential need of appeal, and rehearing. Thus, it is very important to identify such assets early in the divorce proceeding to be prepared to have this valued and present adequate testimony for the trial court to have to make an accurate, just and reasonable division of the marital estate.1
In the context of an emotional divorce, little details like this can be missed. However, the future implications are significant to listen and help your counsel identify the marital estate and have it valued. This blog is written by attorneys at Dixon & Moseley, P.C. to provide general educational material to make you a more informed legal consumer and citizen. This is not intended as specific legal advice or solicitation for legal service. Dixon & Moseley, P.C. advocates practice throughout the State of Indiana.
