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PLA2800
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Law
Date
Jan 9, 2024
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docx
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Uploaded by MinisterTapir3422
Trial Brief
A.
CASE STYLE
IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT
IN AND FOR MARION COUNTY, INDIANA
IN RE: THE MARRIAGE OF
CASE NO.: 12-1234-DR-001234
TIM
DIVISION: Family
Husband,
And
SARAH,
Wife.
______________________________/
PETITIONER/WIFES’ TRIAL BRIEF
B.
INTRODUCTORY STATEMENT
The case being presented is regarding the dissolution of marriage between Sarah, and Tim. This document will give an overview of all present legal issues including but not limited to child custody, alimony, child support, and fair distribution of property and assets. C.
QUESTION(S) PRESENTED: ISSUES(S)
ISSUE 1: EQUITABLE DISTRIBUTION
A.
APPLICABLE LAW
1.
Burns Ind. Code Ann. § 31-15-7-4
states the court shall divide the property of the parties, whether: (1)
owned by either spouse before the marriage; (2)
acquired by either spouse in his or her own right:
(A)
after the marriage; and (B)
before final separation of the parties; or (3)
acquired by their joint efforts.
B.
QUESTION PRESENTED
1. How should the court divide assets between the parties?
C.
KEY FACTS
1.
Sarah and Tim have complete ownership of their home, and the only knowledgeable debt is on a credit card in the amount of $10,000 that was acquired by both parties to file this lawsuit. 2.
Sarah has been a stay-at-home mom for the past 20 years allowing Tim to continue his education to become a physician’s assistant. Although Sarah did not provide financial support to their assets, she did provide emotional and physical support to her husband including sacrificing her own education opportunities, as well as her professional status allowing her husband to build his career.
ISSUE 2: CHILD CUSTODY, PARENTAL RESPONSIBILITY, AND TIMESHARING
A.
APPLICABLE LAW
1.
Burns Ind. Code Ann. § 31-14-13-2
states the court shall determine custody in accordance with the best interests of the child. In determining the child’s best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors.
B.
QUESTION PRESENTED
1.
Should the court grant custody to Plaintiff or Defendant based on the best interests of the child?
C. KEY FACTS
1. Sarah and Tim have two minor children; Jasmine who is 11 years old, and Stewart who is 9 years old. Both children are involved in extracurricular activities. Jasmine is on the swim team, and Stewart plays sports throughout the year. Jasmine does well in school and needs minimal assistance from her parents with take home projects. Stewart is struggling in some areas academically, requiring more assistance from his parents.
2. Both parents play active roles in accommodating the needs of the children. ISSUE 3: CHILD SUPPORT
A. APPLICABLE LAW
1. Burns Ind. Code Ann. § 31-18.5-1-2
(28) states that; A “Support order” means
a judgment, decree, order, or directive, whether:
(A)
temporary;
(B)
final; or
(C)
subject to modification; issued in a state or foreign country for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, retroactive support, or reimbursement for financial assistance provided to an individual oblige in place of child support. The term may include related costs and fees, interest, income withholding, automatic adjustment, reasonable attorney’s fees, and other relief.
B. QUESTION PRESENTED
1. How should the court allocate child support between Sarah and Tim?
C. KEY FACTS
1. Sarah has dedicated her life to her children, being a stay-at-home mom supporting them in their everyday needs apart from financial support. The children have present financial needs from necessities, to school events. Throughout the entire lifetime of the children Sarah has been unable to work due to attending to the physical, emotional, and medical needs that they encounter.
ISSUE 4: ALIMONY
A. APPLICABLE LAW
1. Burns Ind. Code Ann. § 31-18.5-1-2
(25)
“Spousal support order” means a support order for a spouse or former spouse of the obligor.
2. Burns Ind. Code Ann. § 31-18.5-1-2
(28)
“Support order” means a judgment, decree, order, or directive, whether: (A)
temporary; (B)
final; or (C)
subject to modification; issued in a state or foreign country for the benefit of a child, a spouse, or a former spouse, which provides for
monetary support, health care, arrearages, retroactive support, or reimbursement for financial assistance provided to an individual oblige in place of child support. The term may include related costs and fees, interest, income withholding, automatic adjustment, reasonable attorney’s fees, and other relief.
B. QUESTION PRESENTED
1. Should this court grant alimony?
C. KEY FACTS
1. Before the children were born, Sarah worked as a baker’s assistant making $24,000 a year to support the household while Tim was attending college. Tim got certified at age 29, and the couple became pregnant with their first child Jasmine at age 30. 2. Sarah has been out of the workforce for 11 years due to her priority of supporting her household in other ways that do not include financially. The decision for Sarah to be a stay-at-
home mom was determined by both parties because at the time it was the most logical thing to do for their family dynamic. D.
STATEMENT OF FACTS
1. Sarah and Tim started dating in highschool, and took the step to get married when they were 21 years old. 2. After being married a few years, Tim and Sarah were encountering many financial struggles and knew something had to be done. In a team effort, Sarah held a job as a bakers assistant to support her husband through college and keep the household afloat. Tims degree took 6 years to complete. 3. By the age of 30 the hard working couple began to start a family; Their first child Jasmine was
born, and within minutes of her being born the couple knew their lives and priorities now revolved around their daughter. 4. Sarah worked throughout her entire pregnancy, and didn’t take maternity leave until she knew that the time was getting close. The plan was to find childcare for their daughter, so that the couple could continue receiving two streams of income. Sarah was unaware of the cost of childcare, and after calculating all costs the most beneficial route was for her to be a stay at home
mom. The couple agreed that their financials would need to be handled and monitored better, but decided that this was the best decision along with the fact that nobody would care for Jasmine better than Sarah could. Two years later the couple gave Jasmine a little brother. His name is stewart. 6. Sarah has always been a responsible mother, making sure her children have everything they need. She made sure to enroll them in any programs that would help their development, and makes sure to attend all events to show her endless support to see her kids happy and thriving.
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Tim also plays an active role in the childrens life, but does not make it to all of the events and meetings due to his job. 7. Sarah did what most mothers do everyday; she gave up any dream she might have had to continue her education or to start a successful career or business to care for her family. Sarah has been out of the workforce for 11 years now, and with her age it is quite difficult for her to return and be able to perform as well as someone who has worked their whole life. 9. The couple made sure to make plans, and stick to them. Sarah and Tim did not want to be in debt forever, and one step they took to work towards that goal was to pay double mortgage. Tims
salary allowed for it, and it was a better decision for the long run. The couple has very minimal debt aquired between the two except for a new debt that surfaced during the decision of divorce and contracting counsil. 10. Sarah, and Tim are on the same page that their marriage is not what it once was, and have agreed that the best decision for the family as a whole is to end the marriage. However, divorce deals with some very emotional aspects of their lives, and at this point they are unable to come to
an agreement on time with the children and an overall plan on distributions of assets. Sarah would like for the court to take into consideration her sacrafice as a women, who put her whole life on hold first for Tim, then for the children. It would be unfair for financial status to be the only dealbreaker when coming to a decision. E. ARGUMENT
The argument section of the Trial Brief is the most important section. This is where you analyze
the law that supports your client’s position and describe why and how the law supports the position of your client. When presenting the cases and statutes to make your argument, make sure the favorable cases and statutes stand out and discuss how they apply to your client’s case. You also should include the unfavorable cases and statutes showing why they are different and how they should not apply to your client’s case. Do not just summarize your cases and statutes. Analyze and apply them to your client’s case so the judge will see how the cases should be used to rule in your client’s favor. If you use the I
ssue, R
ule, A
nalysis/Application, and C
onclusion (IRAC) approach, you will be sure you are analyzing the issue. For example:
a.
Issue – identify the issue(s) raised by the facts of the client’s case
b.
Rule – identify the law(s) that controls the issue(s)
c.
Analysis – how does the rule of law apply to the issue(s)
d.
Conclusion – a summary of the legal analysis
Case Law (if needed)
Application of the law to the issue being addressed
Discussion of the opposing party’s position
Format
1.
Equitable Distribution a.
Property and assests must be divided 50/50 between husband and wife. 1. IN Code § 31-15-7-5 (2022)
Sec. 5. Clearly states that The court shall presume that an equal division of the marital property between the parties is just and reasonable. 2. The only reasonable way to divide property and assets in this case is 50/50. This statue states that the division must be equal unless certain circumstances would make a 50/50 division unjust. All property and assets in question during this case are a result of a long marriage and everything was obtained in a team effort. Although Sarah was unable to contribute financially due to the role she played in the household, her part was just as important. Sarah was in charge of the children, their safety, well-being, and health. 3. To honor code, and make this an Equitable Distribution the court must order that all property and assets be divided equally between the husband and wife. Sarah has sacraficed her entire life to put her family first, and it would be unfair to only look at her financial contribution when considering this division. 2. CHILD CUSTODY, PARENTAL RESPONSIBILITY, AND TIMESHARING
a. Full time custody of the children must be awarded to Sarah
1. IN Code § 31-17-2-8 (2022)
Sec. 8. Confirms that The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors.
2. One of the most important things when deciding who gets awarded the full time custody of the children in divorce cases, is making sure they are with the parent who is going to be able to care for them the best. Custody must not be granted in favor of finances, but of the physical, emotional, and psychological well being of the child. Jasmine and Stewart have been with their mother, Sarah everyday since they were born.
Sarah made sure they went to their medical appointments, she coordinated events, and appointments as needed to be present for both of the children. It is clear that Tim was not there because he could not attend due to his work schedule, but that just makes another clear point as on why the children should keep their current schedule and routine. Tim will get his time with his children as his schedule allows, so that he is aloud to spend quality time with his children. 3. IN Code § 31-17-2-8 (2022)
is very specific on the guidelines the court shall adhere to when making the final decision on custody. This decision is very important and affects the lives of two minors who have no fault in this failed marriage. There is clear evidence that the children have been cared for in a responsible manner while they have been in their mothers care, and there is no reason to change the dynamic if there is no concerns. At this moment, Sarah is not working and will still have the time that she has always had to dedicate to her childrens needs. 3. CHILD SUPPORT
A. Child support must be paid to Sarah as the custodial parent.
1. IN Code § 31-16-6-1 (2022)
Sec. 1. (a) Subject to subsection (f), in an action for dissolution of marriage under IC 31-15-2, legal separation under IC 31-15-3, child support under IC 31-16-2, or establishment of paternity under IC 31-14, the court may order either parent or both parents to pay any amount reasonable for support of a child, without regard to marital misconduct, after considering all relevant factors. 2. As the court determines child support, we must keep in mind that the main goal is to make sure the children are financially taken care of. As mentioned prior, the children are at no fault that the marriage failed; therefore should not be held responsible by unwanted suffering for basic needs. We are aware that Sarah has been the full time caregiver for the children, and has always depended on Tims income to care for the childrens needs. Once calculations are determined, it will be to the courts best knowledge to obligate Tim to continue supporting his children financially.
3. To honor code IN Code § 31-16-6-1 (2022)
all factors must be considered. All parties are aware that child support will be calculated, and that it is a possibility that both parties will need to make child support payments. Concluding; the custodial parent
who is granted full time must receive financial support from the other parent to maintain the same life style for the children or better.
4.ALIMONY
A. Sarah is entitled to Alimony payments.
1.
IN Code § 31-15-7-2 (2022)
the court may find that maintenance is necessary for the spouse in an amount and for a period of time that the court considers appropriate.(3) After considering: (A) the educational level of each spouse at the time of marriage and at the time the action is commenced.
2. Sarah was working as a bakers assistant from the time she graduated highschool, until Tim graduated from college. She was obligated to hold a job to support his dreams of getting a degree, and to financially support the household. Sarah sacraficed her own future to put her husbands dreams before hers. The court must grant Sarah Alimony due to her social, and educational level at the time of this dispute. As an adult re-entering the workforce with such a gap in her employment history along with the skills she would need to succeed the chance that she will obtain a decent paying job are very minimal. Employers are very hesitant to hire anybody without some kind of college in their educational history.
3. IN Code § 31-15-7-2 (2022)
demonstrates that one of the factors possible for qualification of Alimony is; (B) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both; As a result a court may find
that rehabilitative maintenance for the spouse seeking maintenance is necessary in an amount and for a period of time that the court considers appropriate, but not to exceed three (3) years from the date of the final decree. Sarah meets all of the requirements to receive spousal support.
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F.
CONCLUSION
The conclusion section of your Trial Brief is a request for what action you want the judge to take.
This section should be very brief. Summarize the highlights of your argument. You do not have to include any citations in this section. At the very end, reiterate what you are asking the court to do. This section could be as short as one sentence, but no more than a half a page.
G.
SIGNATURE AND DATE
The end of your brief is similar to what you would see at the end of a letter. For example:
Respectfully submitted,
Dated: ____________________
____________________________________
Attorney So and So
Attorneys for (Husband or Wife)
Name of Husband or Wife
Attorney’s Street Address
Attorney’s City, State and Zip
Attorney’s Bar No.:
H.
CERTIFICATE OF SERVICE
Anytime you file anything with the court, you must verify that all parties have received copies. The Certificate of Service is placed at the very end of a pleading and states that a copy has been served on all parties. You must also include how it was served, such as by mail, efiling portal, email, or by hand delivery. For example:
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing document was served via (U.S. Mail, hand delivery, through the efiling portal, or email) to the attorney for the (Wife or Husband), attorney’s
name, attorney’s address, attorney’s email, this ____ day of Month, Year.
I.
EXHIBITS
You may want to include exhibits for the court to review, such as deposition transcripts, answers to interrogatories, affidavits, and other documents. Fully describe each exhibit within your Trial
Brief and then labeled at the end of the brief. Never insert exhibits in the middle of your Trial Brief.