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DO I NEED A LAWYER? To paraphrase a popular saying, “People who represent themselves have fools for clients.” In the rare case, you might survive going it alone. But the danger is in not knowing what you don’t know. A woman who filed for divorce on her own told the Court she and her husband had no property to divide, as they had split up their stocks and bank accounts. What she did not know was that she was entitled to 50% of her husband’s work pension, even though he was not scheduled to receive payments for another 10 years. She lost approximately $143,000. Is this the type of mistake you want to make? Review the statements below. If any of them sound like something you’ve said, you need a lawyer.
We split everything 50/50 because that’s the law. FALSE. Indiana law does presume that the parties will share in the property and debts equally. However, you can argue against that presumption where, for example, one party brought more into the marriage, inherited money, or received gifts. There is never a guarantee, but courts have accepted these arguments, in particular where the non-requesting party has much greater income earning potential and also where the marriage was short. We don’t have any property or debts to be divided. FALSE. This is false in nearly every case. Whether an asset or debt is in your name only, your spouse’s name only, or both, the Court can require a 50% split. For example, if you have a credit card in your name only with a $4,000 balance and your spouse has a credit card in his or her name only for $2,000, the Court can order your spouse to pay $1,000 so you are sharing in the debt equally. The mortgage company can’t come after me because she agreed to pay the house payment in the settlement. FALSE. Even if your spouse agrees to make the house payments, that agreement is only between you and your spouse. If your mortgage lender had a contract with both of you, it may still collect against you if your spouse does not pay. What you have is a right to file a lawsuit against him or her for payment. But often if your spouse is not paying the mortgage, the money is not there to recover. The same is true for any joint debt, and your former spouse’s failure to make payments can wreck your credit. Also, if your spouse files bankruptcy after your divorce, you could be left holding the entire bag on all debts. You need a lawyer who will address this minefield. The car or house is only in my name, so I’ll get to keep it. FALSE. If a car or house is the main asset in the marriage, the Court can order you to: a) pay a lump sum to your ex-spouse for half (or more) of the value of the car or house (minus the loans due); b) pay a monthly amount; or c) sell the asset and distribute the income from the sale. My husband cheated on me. I am going to take him to the cleaners. FALSE. Indiana is a “no fault” state. This means that the court does not entertain evidence on “why” the divorce is occurring, unless it relates to child custody or visitation, which are two areas where parental judgment is at issue.
I signed a paternity affidavit at the hospital. My name is on the child’s birth certificate. I have the rights of a father. FALSE. Although the affidavit is evidence that can be substituted for a DNA test, if you have not been before a court to establish paternity, support, and visitation, you have no rights yet. The mother may ignore your calls and refuse to let you see your baby. She may even give up your child for adoption unless you take the proper steps. I’m not worried because I can always get him to pay child support later. FALSE. There is a statute of limitations for a paternity action. Even if you file in time to meet that statute, you may be costing your child thousands of dollars over his/her life by delaying. This is because a father will get a reduction in what he pays for your child if the Court enters a support order first for any other child, even if that child is born AFTER yours. In addition, the court CAN grant support back to the date of your child’s birth, but it MUST grant support back to date on which you file a paternity petition. In other words, the longer you wait, the greater likelihood that certain monies will be lost to your child forever. Finally, if paternity is established and the father dies without a will, any property he owns will go to his child under Indiana law. When the court enters an order for support, you can also get assistance paying medical bills and possibly college expenses. I’m not sure I’m the father, but I signed the affidavit because I figured I could change it later. FALSE. If you have any doubt, do not sign a paternity affidavit. Once you have signed, you only have a limited number of days to contest it.
He/she isn’t paying support, so he/she isn’t seeing the kids. FALSE. There is a remedy to collect support from a delinquent parent, but this isn’t it. It is illegal to withhold visitation because support is not current, and the other parent can file an action for injunctive relief. If that action succeeds, you can end up paying the other party’s legal fees. ON CUSTODY I’ll agree to give him custody now, but I’ll get it back later when I (insert change in life situation here). FALSE. If you have an agreement between
you and the other parent to give custody away temporarily, and the other
party changes his or her mind, you can lose custody permanently. This
is because the Court, under Indiana law, cannot change custody unless
you prove a continuing and substantial change that is to the child’s
detriment. This is a very demanding standard. Many a parent has given
away custody “temporarily” only to see the arrangement become
permanent. This is another reason why you should NEVER sign a legal document
without a lawyer. |