All Things Family Law

Discussion of all things related to family law from an Indiana divorce attorney.

This blog provides general family law and divorce law information. If you have a specific issue or case you need assistance with please contact me directly. 

Filtering by Category: property division

Retirement and Divorce - Are Paid Health Insurance Premiums An Asset?

Retirement assets are often an issue in the property division aspect of a divorce case. For the purposes of divorce, Indiana defines “property” as:

[A]ll the assets of either party or both parties, including:
(1) a present right to withdraw pension or retirement benefits;
(2) the right to receive pension or retirement benefits that are not forfeited upon termination of employment or that are vested (as defined in Section 411 of the Internal Revenue Code) but that are payable after the dissolution of marriage; and
(3) the right to receive disposable retired or retainer pay (as defined in 10 U.S.C. 1408(a)) acquired during the marriage that is or may be payable after the dissolution of marriage.
See Ind. Code § 31-9-2-98(b).

In a recent Court of Appeals case, the question was whether a benefit that caused Husband's post-retirement health insurance premiums to be paid is an asset of the marriage and subject to division by the court. The answer is, no, but the interesting part of the question is why the court found this way. It is important to know the benefit was paid directly to the insurance provider, not to the Husband. The COA explained that since the benefit was not payable to the Husband and as he could not elect to receive cash or some other benefit in lieu of the premium payments, the benefit was non-elective and not subject to division.

Had the Husband received the premium payment directly, as a payment for him to pay his health insurance premiums, then the court would likely have held otherwise.

However, a concurring opinion noted that the benefit could be properly considered as future income and be treated in same manner as evidence of future earning ability. In this regard, while the benefit could not be considered to be an asset of the marriage, it could be considered in the determination of how the assets should be split.

How To Enforce A Court Order - Contempt and Collections

So you have the divorce or paternity decree. The other party won't perform as ordered. Maybe you are not receiving the child at the designated time, or you have not received the property to which you are entitled. Now what? How do you get the other party to perform?

The answer depends on what you are trying to enforce. We will discuss the three most common: custody orders, support orders, or property orders.

1. Custody Order. If the other party will not give you the child during your designated parenting time, he is violating the custody order. This can also be called violating the parenting time or visitation order. How you get this enforced? Practically, you need to take reasonable steps to encourage the other party to perform as required. Tell them they need to improve. Do it in writing. If they still will not perform, you may need to seek court intervention. You will need to file a motion for rule to show cause (a/k/a a contempt motion). Once filed the Court will set a hearing for the other party to show cause as to why he should not be held in contempt for not performing. The Court can use its coercive powers to cause the other party to comply, including ordering attorney fees paid, jail time, or some other specific act. The Court could also award you make-up time. Should you just call the police to have them enforce the order? I usually do not recommend this. Law enforcement will come out not to play judge or jury, but rather to diffuse the domestic disturbance. It is possible the police will help you get the other party to perform, but at what cost. Will the child get to watch you call the police on your ex?

2. Support Order. What if the other party will not pay you support on time? Again, you can file a motion for contempt. You can ask the court to apply its coercive powers. You can ask for interest. You can ask that the other parties income be garnished. To recover the amount they failed to pay you will need to ask for an arrearage order. Arrearages can be paid a little bit at a time or all at once. If they have a retirement account maybe you can use the assets they have to pay your support arrearage, see previous posting here.

UPDATE 10/7/09: New Indiana Supreme Court Case regarding enforcing a support order held that the trial court contempt order requiring the father to pay less than the full amount of the Florida support obligation to avoid incarceration did not impermissibly modify the foreign judgment. Also, it held that the Federal Consumer Credit Protection Act, which limits the amount of wages that may be subject to garnishment, does not restrict the amount of support that may be awarded.

3. Property Order. If the other party is not giving you property you were granted in the divorce decree how do you get it? One option is to call law enforcement, but, as stated above I do not recommend this. It is generally a poor use of law enforcement resources and can unnecessarily escalate disputes. Two wrongs do not make a right. You can move the court to hold him in contempt, and ask for coercive remedies. The more difficult issue is generally where the other party is ordered to pay a (nonsupport) debt and they fail to do it, or maybe they are supposed to pay you a lump-sum property buyout and fail. How do you collect your money? You will need to file a motion for proceedings supplemental. This will put the collection of the judgment squarely before the court and allow you to get information about income and assets from the other party. At hearing, you can ask for property or income to be seized.

For all of the above actions you will likely need a private attorney. The enforcement of orders is an unintuitive process and can be frustrating.

Another option for collection of child support is to use the 4-D Court prosecutors in your county. They may be able to help you collect your child support. Hamilton County child support collection questions go here, and Marion County child support collection questions go here.

Collect Child Support, Maintenance, or Alimony with a QDRO

The collection of child support arrearages, as well as spousal alimony or maintenance arrearages, can occur by seizing and partitioning the paying party's retirement account. A Qualified Domestic Relations Order (QDRO) is a court order which has been filed with the court and determined by the Retirement Plan Administrator to be acceptable or “qualified” under certain federal ERISA rules. A QDRO recognizes the existence of an alternate payee (i.e., legally separated spouse, former spouse, domestic partner, child and/or other dependent) who has the right to receive benefits that are or will be payable to a member.

QDRO's are most commonly used in divorces to divide retirement assets. Essentially, the retirement account of one party is partitioned and a certain amount, or right to receive future payments, is set-off to the other party.

The use of QDRO's to collect other domestic relations judgments is often overlooked. Pursuant to federal law a retirement plan can be used to provide child support and alimony payments through the use of a QDRO.

In today's economy the use of QDRO's to collect child support or spousal maintenance/alimony payments is important. People are being laid off everyday and unemployment is high; however, individuals still may have some retirement assets or benefits from their former job. The retirement assets or benefits could be used to pay the debt owed.

Care must be used when using a QDRO because of the tax issues involved. The person receiving the assets via QDRO may have a taxable event when they liquidate the assets they receive. Imagine you receive retirement assets of $10,000 to satisfy a $10,000 child support debt, but after tax you only realize $7,000. There are ways to deal with this issue, including having the amount you receive 'grossed-up' to account for tax you have to pay, or have the child named as the alternate payee.

For more information regarding QDRO's see the Department of Labor FAQ's.

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