Carmer v. Carmer – Prenuptial Agreements, Personal Injury Annuities and Property Division

The business of dividing property, deciding child custody and support payments and parsing out details of a decades-old prenuptial agreement can be messy. When two people have built a life together, it can be difficult trying to untangle all the strings as fairly and painlessly as possible.

The case of Carmer v. Carmer, recently before the Indiana Court of Appeals, is one such example. This was a case in which a couple married for more than 20 years was separating after purchasing two homes together, having three children and in the midst of preparing to adopt two more. There was a premarital agreement on the table, but there was dispute about how it should be interpreted. There was also contention as to whether husband’s monthly annuities – received as compensation stemming from a personal injury lawsuit – should be factored into the child support schedule.

Just as every marriage is different, so too is every divorce and every divorce agreement. It’s imperative throughout the process to have an experienced divorce attorney advocating on your behalf and for the best interests of your children.

In the Carmer case, according to court records, the couple was married in 1994. Six years prior to the marriage, husband was severely injured in an auto accident, during which he suffered a traumatic brain injury. He now walks with a limp and can’t use one of his arms. He receives $6,500 a month in annuities, plus periodic lump sum payments, and works as a greeter at a large chain store earning about $450 a week.

Wife was not employed during marriage, but stayed home to raise their children, the oldest of which is emancipated. The two were also raising two foster children and they had planned to adopt them, but the husband stated he no longer wanted to adopt after filing for divorce. The children were removed from the home, which wife was solely responsible for maintaining after husband moved out, due to unsanitary conditions and pet waste. The wife participated in protective services programs and is still trying to adopt.

Based on the prenuptial agreement, wife was to retain her separate property, half of all joint property and $70,000 lump sum payment if the marriage lasted longer than 14 years (which it did). Parties owned two homes and several vehicles, but they also had a fair amount of debt. Wife, who managed the family’s finances, admitted they lived beyond their means.

Trial court decided husband’s child support payments should be $150 a month, based on his income as a greeter. Court did not count the money he received in annuities, citing the Structured Settlement Protection Act and IRS code. The court further determined that while wife was to receive $70,000, that amount could be reduced by the amount she took from the husband’s annuity to pay for legal representation during the adoption process after the children were removed from her care due to neglect. This was deemed a “dissipation of marital assets.” Wife was also deemed responsible for the dissipation of marital assets caused by loss of property value to the marital home due to failure to clean the pet waste.

The court affirmed in part with regard to the dissipation of marital assets and the fact that wife was responsible to cover the cost of her attorney’s fees relative to the adoption. However, appeals court ruled trial court erred in failing to include husband’s monthly annuity in the child support payments. The idea is that children are supposed to live as closely as possible to the lifestyle they would have had if the family had been left intact. Those annuity payments were used to support the family, and thus, the court ruled, they could be used to continue support of the children.

These kinds of disputes are not unique to this case, and results can vary depending on circumstances. By hiring an experienced family law attorney, you ensure your rights and interests are protected.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Carmer v. Carmer, Oct. 30, 2015, Indiana Court of Appeals

More Blog Entries:

Nelson v. Nelson – Challenge of Child Custody Order, Oct. 2, 2015, Gary Divorce Lawyer Blog