COA Affirms Trial Court Decision to Enforce Cohabitation Contract

Family Law Case Review

Case: Tina L. Hemingway v. John P. Scott
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Boyfriend conveyed his residence into joint title with Girlfriend, pursuant to a cohabitation agreement that further provided Girlfriend would quitclaim her interest back to Boyfriend in the event she ever “cheated” on him. The contract was held to be enforceable when Girlfriend subsequently cheated.

NOTED: In dicta, the Court of Appeals suggested that, as a matter of law, cohabitation contracts are on par with premarital agreements in terms of their legal recognition and enforceability.

FACTS AND PROCEDURAL HISTORY:
Boyfriend and Girlfriend began an on-and-off relationship in 2004. In 2012, the parties executed a contract, penned by Girlfriend, pursuant to which Boyfriend agreed to put his residence into joint title with Girlfriend. The contract also included a breach provision requiring Girlfriend to quitclaim the property back to Boyfriend in the event she “cheated.” The same day the contract was executed, Boyfriend executed a deed conveying the property into joint title, which was subsequently recorded.

Two months later, while the parties were living together, Girlfriend became pregnant, indisputably by another man. Boyfriend gave Girlfriend notice of her breach, and requested a conveyance of the real estate back to Boyfriend. Litigation ensued.

The trial court found in Boyfriend’s favor, based upon enforcement of the contract, and ordered Girlfriend to execute a quitclaim deed in Boyfriend’s favor. Girlfriend appealed.

The Court of Appeals affirmed the trial court’s decision. The Court noted Indiana’s deep history of supporting the right of competent adults to enter into contracts. The Court rejected Girlfriend’s argument that this contract violated public policy by requiring her forbearance in sexual activity.

To view the text of this opinion in its entirety, click here: Tina L. Hemingway v. John P. Scott

 

_________________________________________________________________________________

James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in News0 Comments

Representing the Soldier, Jan. 27: Special Low Tuition for Everyone!

ICLEF is proud to provide a special reduced tuition for EVERYONE, in honor of those who serve in our armed forces.

TOPICS:
Panel #1 lead by Major Daniel B. Bagley
• The Soldier’s and Sailor’s Civil Relief Act
• Landlord / Tenant Issues
• Consumer Credit Issues

Panel #2 lead by Major John C. Drier
Ethical Matters of the Attorney-Client Relationship:
• Pre-Mobilization Checklist
• Child Support Coordination
• Wills & Estate Planning; Powers of Attorney
• Military Pay
• Family Care Plans

Panel #3 lead by Lt. Colonel Michael A. Fish
• The Uniformed Services Employment & Reemployment Rights Act (USERRA)
• Death and Survivor Benefits

Veterans Court
– Lt. Colonel (retired) Harold R. Johnston

Government Contract Law & the Attorney’s Ethical Considerations
– Colonel Daniel Kozlowski
__________________________________

FACULTY:
J. David Roellgen – Chair
Kolb Roellgen & Kirchoff LLP, Vincennes

Daniel B. Bagley
Attorney Advisor, Indiana National Guard, Joint Forces Headquarters, Indianapolis

John C. Drier
Law Offices of John C. Drier, Plainfield

Michael A. Fish
Attorney at Law, Valparaiso

Harold R. Johnston
Indianapolis Veterans Court, Indianapolis

Daniel Kozlowski
Staff Judge Advocate, Indiana National Guard, Joint Forces Headquarters, Indianapolis

___________________________________

Representing the Soldier: Legal Issues Beyond the Call of Duty
3 CLE / 1 E – Friday, January 27,  1:00 P.M. – 4:15 P.M.

LIVE IN-PERSON SEMINAR
– ICLEF Conference Facility, Indianapolis, IN

LIVE INDIVIDUAL WEBCAST
– From your home or office computer

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in News0 Comments

Little Known Provision of New Law Provides Tax Relief and Benefits for Small Employers

By Richard Mann, Richard A. Mann, P.C., Indianapolis

Congress passed and the President has signed into law the 21St Century Cures act. While most of what you will read in the media is about how it attacks opiate addictions which is a great goal. It also reauthorized Health Reimbursement Arrangements (HRA). This was a plan where an employer could reimburse employees for medical expenses including the employees cost of health insurance. To qualify, you must incur the expense and the employer must have a plan. Basically, it allows small employers (who do not fall under the Affordable Care Act (ACA) mandate to cover employees i.e. less than 50 employees) to create a plan to reimburse the employee when the employee obtains their own health insurance. If an employer supplies the insurance, then the plan does not qualify and the employer cannot deduct from the employee’s check to fund the plan.

One might ask why have the plan if you cannot afford to pay for your employee’s health insurance then how can you afford this?

First, you do not have to pay the entire costs. You can pay a portion which allows the employee to purchase health insurance for themselves. Such provisions were in the law a few years ago, but it was repealed by the ACA commonly known as Obamacare. I provided such a plan for my employees.

Second, both you and your employee will like that the plan allows you to pay it tax free to your employees meaning you do not pay the additional employment taxes and your employee receive it tax free. There are restrictions that can affect the taxability on the employees end that can be eliminated by your plan.

For additional information you can refer to the law this Forbes Article or refer to the language of in Section 18001.

I had such a plan and my employees were very disappointed when it was abolished. The law is effective January 1, 2017, so you should contact your CPA as soon as possible to explore the benefits. It is a great method to incentivize your employees to have health insurance and make it more affordable without increasing your employment taxes or their taxes.

Prepared by Richard A. Mann of Richard A. Mann, P.C. Attorney at Law.

______________________________________________________________________

Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

Posted in News0 Comments

Ultimatums

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

“Take it or leave it,” he says. “This is a deal-breaker.”  But it’s early on, and you’re not ready to make that decision. How should you react?

Consider these four steps to evaluate the ultimatum and formulate your strategic response.

1.    Evaluate its legitimacy
Is it real or a bluff? Consider:

  • Counterpart intelligence. Did you learn in talking with those who have previously negotiated with your counterpart and searching online that they tend to bluff? Or do they have a reputation for meaning it when they say it?
  • Leverage. What will your counterpart do if they don’t do the deal with you? What’s their alternative, or Plan B? If they have a good Plan B, it increases the likelihood the ultimatum is real. If not, it’s more likely a bluff. Parties also often share their Plan B if it’s good and hold their cards close to their vest if it’s bad. Consider your Plan B, too. The easier your walk away, the more you may not even want to play this “game.”
  • Their interests. An ultimatum is a position and describes what they want. Find out their interests – why they want it. What is the motivation behind the ultimatum? And does that interest align with it being a deal-breaker compared with their other interests? Ultimatums involving crucial interests tend to be more credible.
  • Timing and offer-concession patterns.  Ultimatums delivered early in lengthy negotiations tend to be less true. Ultimatums near real, inflexible deadlines tend to be more true.
  • Writing. Written ultimatums are a higher level of commitment vs verbal ones.

Of course, these are tendencies, not certainties. But they will give you clues as to the nature of the ultimatum.

So what should you do if you think the ultimatum is true – or if you believe it’s a bluff – or if your assessment is somewhere in between?

2.    Ignore it
Harvard Business School Professor Deepak Malhotra, author of Negotiating the Impossible, recommends in a recent Harvard Negotiation Newsletter that parties “completely ignore [the ultimatum]. I don’t ask the person to repeat what he said or clarify what he meant. Instead, I pretend he never said it and move on to other issues.”

This move has merit, especially if you believe it’s a bluff and/or an offhand comment.

First, as Malhotra notes, ignoring it makes it easier for your counterpart to back off later without “losing face.” After all, your response neither legitimized it nor gave it credibility nor led them to dig in ego-wise and escalate their commitment.

All these would make it harder for your counterpart to conveniently “forget” it later, when it may be in their interests to concede on it.

Second, if it is real they will repeat it anyway.

3.    Reframe it as a suggestion or offer
If you can’t ignore it, Malhotra recommends reframing it as a suggestion before moving forward. Perhaps respond “I understand this would be very hard for you to do at this time” (“very hard” is different than “impossible” and “at this time” suggests it may change later).

Or simply treat it as a suggestion or regular offer by saying “I appreciate how important this is to you. On the other hand, we’ve made a lot of progress so far – so let’s just put that aside for now as an unresolved issue.”

4.    Address it substantively
Of course, you can always address it directly. And this may be best, especially if it appears that your counterpart is testing you, it’s a significant issue, and you think it’s a bluff. If you do this, though, be prepared to go with your Plan B.

Latz’s Lesson:  Ultimatums may be real or not – so assess and then respond (or just ignore).

______________________________________________________________________

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Negotiation/Mediation Blog, News0 Comments