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Court of Appeals of Indiana decides how far courts can go in a provisional order

On Behalf of | May 10, 2022 | Property division

The Court of Appeals of Indiana issued a ruling on April 25, 2022, holding absent an agreement between the parties trial court judges cannot order the sale of real estate in a provisional order in a dissolution case. In Rambo v. Rambo, the husband and wife disagreed over whether to sell the family home during the divorce proceedings as part of the provisional order. The trial court granted the wife’s request and issued a provisional order directing that the couple auction the home and a few other items within 90 days. The husband appealed the order and the Court of Appeals of Indiana reversed.

The role of the provisional order

When a couple files for separation or dissolution in Indiana, they may need to establish some ground rules for how to handle matters such as custody and support. In order to accomplish this goal, the court can issue a provisional order meant to cover these issues until the dissolution is finalized and the judge issues a more permanent order. Indiana law states that the provisional order may cover:

  • Temporary child support or spousal maintenance
  • Temporary custody or parenting time plans
  • Possession of property
  • A protective order on the restraint of the sale, transfer or disposal of property and changes to insurance

In this case, the husband objected that selling the house does not qualify as possession of the property. The wife argued that selling the property is a type of possession because the trial court determined that neither of them would possess the property.

Limitations on a provisional order

A provisional order is temporary, pending the final dissolution decree. The provisional order then terminates at that time. The appellate court pointed out that the sale of a house is not temporary and cannot be changed later. It also disagreed with the wife’s argument that the sale is the same as possession under Indiana law. As the appellate court notes, the legislature gives the trial court the power to order the sale of real estate as part of the final decree. If lawmakers had meant to give that same power in a provisional order, they likely would have done so.

Does this mean divorcing couples can’t sell their real estate?

The court states in a footnote that this case addresses a contested provisional order where the two sides want different things. Nothing in this decision prevents a couple from entering into an agreement in their provisional order to sell their real estate.