Divorce, Property Division, Dividing Debts, and the old Credit Rating

Divorce always creates an economic problem. That was true before the economy started slumping and will be true after gets better. You need to be aware of the problems divorce can cause for your finances.

New York Divorce Blog raises a lot of interesting points in How to Prevent Divorce From Hurting Your Credit. I suggest giving it a read.

In the post CREDIT CARD DEBT, Judith's Divorce Blog divides cashless people into two broad categories:

There are two kinds of cashless people in our society:


* Those who can use credit cards properly and don’t need cash

* Those who can’t handle plastic and never have any cash either.

The latter will find themselves looking at a bankruptcy, so learn to use credit cards properly.

Houston Texas Divorce & Family Law Attorney Blog writes about a remedy I have not heard of in Credit Freeze - One Method for Protecting Your Credit Before and During Divorce:

One option is to apply for a credit freeze. A credit freeze prevents anyone from taking your social security number or other personal information and opening an account in your name. Fees to initiate a credit freeze are anywhere from $5-$10 and must be initiated with each of the three major credit bureaus (CSC, Experian, and TransUnion). If you need to “thaw” your credit to apply for a new card, car loan, home loan, refinance, etc., then you must request for a specific creditor to be able to access your credit file. This, too, may require a nominal fee.

The article goes on to mention that a credit freeze is not for everyone.

The California Divorce and Family Law Blog published Lessen impact of divorce on credit last month. A bit lengthy but worth reading. I am not sure that many will be able to follow this bit of advice:

Finally, start planning for all this at least six months to a year before you file, or as early as possible before the divorce gets ugly. Once any problems begin, you and your embittered other half will have a hard time thinking logically. If this seems like a lot of work at the front end of your separation, remember that it will save you up to 10 years of credit-related headaches in the aftermath.

Following that bit of advice will mean - I think - that the choice to file for divorce must be more rational than not.

Divorce, Property Division and Five Tips on Retirement Assets

Remember that retirement benefits acquired during marriage come into the marital pot for division. Fox Business has an article giving some tips for dealing with retirement benefits, Five Tips to Protect Your Retirement Assets in a Divorce. Some high points:

"When it comes to splitting assets during a divorce, the house and retirement funds are usually the biggest. As the housing market tumbles, retirement assets are taking center stage."

***

The type of fund doesn't matter: Whether it's a pension, 401(k) or profit-sharing agreement, it will most likely be split up in your divorce settlement.

The best way to split up qualified accounts like 401(k)s and ESOPs is to use a Qualified Domestic Relations Order [QDRO] in your settlement. A QDRO establishes what each party is entitled to designates the amount of tax each party pays on the account.
Choosing not to use a QDRO is risky and can leave you paying taxes on money distributed to your ex.

I have an earlier post on QDRO's here.

Fox Business also touts prenuptial agreements:

The best way to preserve your assets is to have clearly defined agreements relating to those assets, Beaulier said. A prenuptial agreement that fully discloses all the assets and liabilities of each party before the union and an agreement for how the assets will be handled if a divorce occurs is crucial

Because retirement benefits are considered marital assets, you have to determine the present value of each plan.

“Retaining records of what each person has when they enter into marriage can save thousands of dollars in a divorce,” Beaulier said.

For more information on Indiana prenuptial agreements, take a look at my Indiana Prenuptial FAQ. The article does not mention post-nuptial agreements. For those, take a look at the articles here.

Update 4/15/08: New Indiana Court of Appeals decision - When is Spouse Entitled to the QDRO.

Prenuptial Agreements for an Amicable Divorce

Those reading me for a while should know that I have an interest in what is called collaborative divorce and that I have a belief that a contentious divorce for the sake of contentiousness is not a good idea. The London Times' The path to an amicable divorce fits into my thinking but may also show some limitations on my thinking. The writer sees prenuptial agreements as the means to an amicable divorce.

I am not so about the specifics of this particular paragraph even thought I think its sentiments are sound:

"To this end the language of divorce settlements would have to be avoided, and emotive words like abandonment, adultery, alimony and affidavit would be replaced by gentler terms such as respect, consideration, collaboration and absolute objectivity in reaching the best possible outcome for all parties. Instead of referring to the “divorced” couple, the family would become a “binuclear” one. Lest these seem a little wishy-washy, they would be backed up by a hard and fast agreement, drawn up, witnessed and, if necessary, signed in blood before the happy couple walks up to the altar."

Not that some terms have any meaning in Indiana (such as alimony, adultery and abandonment), but still it is giving me something to think about for when I have a few less irons in the fire.

False Abuse Claims and Custody

I have seen fewer allegations of child abuse claims over the past few years, but False Abuse Claims and Interference With Visitation Leads to Loss of Custody from New York Divorce Report still hits hard. I cannot think of anything uglier to raise in a child custody case than a false abuse claim. I do not think that Indiana courts will treat a false claim any differently than did the New York courts.

False abuse claims cheapen the cases where abuse did occur. If for no other reason, the courts should react strongly to false abuse claims.

False abuse claims also brings to mind parental alienation syndrome. For more on that see my earlier post, Contentious divorces - Parental Alienation Syndrome.

Indiana Child Support After Age 21 - New Appellate Case

Child support continues after age twenty-one unless child is incapacitated, and incapacitation was one of the issues in Liddy v. Liddy (PDF format). The Indiana Court of Appeals decided on February 20 that a twenty-one year old child diagnosed with schizoaffective disorder was incapacitated and upheld a child support order - even though the child had a small income and did not live at home.

Also, the panel of Indiana's Court of Appeals clarified that the burden for proving emancipation falls on the party opposing the emancipation.

Indiana Child in College and Educational Expenses- what is a parent to do?

Educational expenses and child support makes a subject broad enough for many posts. We start today with the situation of a child who is approaching twenty-one, and is in college.

Remember child support ends at age 21 - unless there is an order for post-secondary education expenses. (For where child support ends before age twenty-one see ).

If an order for post-secondary education exists before the child turns twenty-one, then the ordinary child support order ends after age twenty-one and the non-custodial parent pays only their share of educational expenses.

What to do if there is no order for educational expenses in place and the child will soon be 21? File a petition to modify support to get an order for educational expenses.

If you need to file a petition to modify support, feel free to contact my office.

Lesbian and Gay Issues

From Updates in Michigan Family Law's Parenting time | parent with same-sex partner, I found this reference to BIBLIOGRAPHY OF CUSTODY AND VISITATION CASES INVOLVING DIVORCE FROM A DIFFERENT-SEX SPOUSE.

It is in PDF format and 19 pages long. You will find Indiana cases on page 4, 7, and 11 (Marlow v. Marlow also appears at page 15).

I have always been happy to report that Indiana lacks any knee jerk reaction to gay/lesbian parents. Indiana law focuses on the best interests of the child regardless of the parent's sexual orientation.

Guardians Ad Litem and Child Custody: A Report from the Trenches

Recently, I requested in a custody case that the court appoint a guardian ad litem (GAL). Opposing counsel objected and court upheld the opposing side. Opposing counsel argument against a GAL consisted of the following:

2. That on January 28th1, 2008 Petitioner FATHER filed a request for the Court to appoint a Guardian Ad Litem without any specific reasons for the appointment other than that custody is at issue.

3. That the parties' minor child is only 1 year and 5 months of age, and a Guardian Ad Litem is not necessary in the above cause of action.

What is a GAL? Minnesota Family and Divorce Blog has a very good description of a GAL:

Guardians ad litem are appointed to represent the interests of the child. A guardian ad litem is not literally the child's attorney, and may or may not be a practicing attorney. The guardian ad litem becomes familiar with the child and the child's circumstances so as to be able to inform the court of what is in the child's best interests. The guardian does not have the authority to make the custody decision, but the guardian's comments and observations are given substantial weight. The guardian may be involved in the case over the course of weeks or months (and less commonly, years).

The guardian ad litem statute reads as follows:

IC 31-17-6-1
Appointment

Sec. 1. A court in a proceeding under IC 31-17-2, IC 31-17-4, this chapter, or IC 31-17-7 may appoint a guardian ad litem, a court appointed special advocate, or both, for a child at any time.

I do not see any grounds required by the statute. Opposing counsel's motion seems to me as requiring some extraordinary grounds for appointing a GAL.

What can be done? Probably not much. While Case Law Development: Errors in Appointing GAL Subject to Harmless Error Analysis from Family Law Prof deals with a California case, I see no reason for a different result from the Indiana appellate courts. Appointing a GAL lies well within the trial court's discretion and I do not see the appellate judges will impinge upon that discretion.

Which does not mean I cannot speculate about a trial court's refusing to appoint a GAL and propose why a GAL should be appointed in every contested custody case.

I know severla years ago that Madison County's juvenile court had a shortage of Court Appointed Special Advocates (CASA's) . I suspect we have the same shortage in personnel and maybe also a shortage in funding for GAL's. Even though Indiana has a statute establishing A GAL fund:

IC 31-17-6-9
User fee; funds
Sec. 9. (a) The court may order either or both parents of a child for whom a guardian ad litem or court appointed special advocate is appointed under this chapter to pay a user fee for the services provided under this chapter....

As the trial court did not impose the cost on my client, cost may not have been a factor. I had that suspicion somewhat confirmed during a conversation with the one (yes, one) GAL handling the CHINS (Child In Need of Services - children taken from their homes by the State of Indiana) case for Madison County. He has a full enough plate as it is.

However, we both agreed that GAL's serve the child custody process by giving the court a perspective on the issues more ostensibly objective than what might be expected from the parents. I find an advantage exists when an apparently more objective source supports my client's apparently subjective position about the child's best interests for custody.

Enforcing Your Parenting Time and Visitation

Not getting the visitation you are supposed to? The responsibility for enforcing your visitation lies with the non-custodial parent. Too many times I hear people surprised that the court has done nothing to make sure that the parent gets their visitation, but that is not the court's job. The parent not getting their parenting time must file a contempt against the custodial parent and have a hearing before the court does anything.

I suggest reading Insist Upon Your Right to Visit Your Child. Great article that I find spot on about what the non-custodial parent needs to do about getting their parenting time.

For the other side of the argument, read When Visitation Rights Are Denied from Oklahoma Family Law Blog.

I still remember one of my earliest visitation cases as one of the most, if not the most, acrimonious cases ever. Everything from how long mother had to wait for the father to specifying that step-mother could pick up the child. Both parents had suspended incarceration orders (he for support and she for visitation) but even that tool was not enough to convince mother to mellow out. How did it all end? Mother died. I think that says how bitter was the case.

A Scottish Divorce

Divorce Survivor has a post on the procedures in Scotland with Joint Minute of Agreement and Simplified Divorce Procedure and Ordinary Divorce Procedure. I think I like Indiana's procedures just fine but there is something so interesting to see how others do divorces.

Litigation out of control

Texas Collaborative Law Blog published Why Some Litigation Gets Out of Control. I cannot disagree with this list and suggest it be read and thought on:

1. There is an emphasis on attacking each other. Lawyers, and often their clients, have a natural tendency to attack the other side to try to "win" the case. Such an approach is destructive to personal and family relationships. Damage from an ugly divorce can be difficult or impossible to correct.

2. Some people have more money than sense. While some people reduce their fighting when they start to run out of money or when they realize there is little value left to be gained by fighting, others never slow down until their lawyer withdraws for non-payment of attorney's fees. A case can get out of control when the parties lose their sense of proportion, when the cost of litigation approaches the value to be gained. Sometimes, people just get stubborn and fight as "a matter of principle". That's almost always a bad decision.

3. The parties experience frustration due to an inability to control the outcome. In almost every litigated case, there are negotiations. Sometimes they result in settlements and sometimes they don't. When a case actually goes to trial, even for limited issues, and especially where major issues are to be decided by a judge or jury, it can be a very frustrating experience for the parties because they have so little personal decision-making power. Judges often will severely disappoint one or both parties who may not understand how a judge could find facts so different from how the party "knows" them to be.

4. There is a common strategy to win a war of attrition, or wear out the other party. It doesn't take too much creativity to just keep pressuring the other side, but it sometimes leads to a side giving up. It is very unpleasant to be the recipient of the continuous "hammering". In the end, there may be a settlement, but there would have been tremendous damage to family relationships and that often leads to continuing conflict for years to come.

5. Some attorneys don't attempt to control their clients or moderate their behavior. Sometimes, that is because the attorney believes his or her role is to just stand for, or just do the bidding for, the client without trying to control, direct or moderate the client's actions. The attorney does not offer to help the client by suggesting alternatives to a very aggressive and demanding approach. Without an attorney willing to manage the client, major trouble can develop.

6. Sometimes, the parties get frustrated by legal limitations, such as having to use guidelines and comply with statutes. If the parties are negotiating, especially in a Collaborative context, it is easy to work around restrictive statutes and rules. On the other hand, litigation usually follows various statutes that limit the options of the parties and the judge.

7. There's no professional neutral behavioral help. Most of the time, at least in the North Texas area, Collaborative cases include a neutral mental health professional who is a valuable asset in keeping the heat down in a case. Both parties feel safer, better listened to and more able to participate when Collaboration is tried. In litigation cases, crazy, angry, depressed or anxious people generally don't get help, and that makes it hard on everyone.

A Follow up of Sorts to "Prenuptial Agreements: They are Getting Popular?"

I notice that The Mississippi Family Law Blog writes in about the same Huffington Post article I wrote about in "Prenuptial Agreements: They are Getting Popular?". I have a bit of envy for the Mississippi headline: Are Prenuptial Agreements going overboard?.

While one of the best preventions to divorce is ensuring you and your soon-to-be spouse have similar expectations of married life--meaning you have to talk about things such as religion, child-rearing, money, etc.--as well as being able to say "I'm, sorry" when you mess up, these "lifestyle clauses" appear more like the forming of a business than a marriage.

Prenuptial Agreements: DO NOT Hide Assets

Reading The Georgia Family Law Blog, I saw the following post and thought what a great title:Can't Play "Hide the Ball" in a Prenuptial Agreement - Blige v Blige. I think it highly unlikely an Indiana court would not act as did the Georgia court.


See Prenup Agreements: What to Do Before 'I Do' for a well written, general overview of prenuptial agreement.

So, what if your future spouse is involved in something like an illegal tax-avoidance scheme? Lawyers say prenup agreements only hold water with the judge when both parties signed them in good faith and with adequate information.

Unless you're willing to put it into writing that you've smuggled most of your funds into an account in the Cayman Islands, anything you sign could become void in court.

My earlier post, Divorce: Hiding Assets and Property, also bears on this subject.

Attorney Fee FAQ from Indiana Family Law Blog

The Indiana Family Law Blog has a very good post about attorney fees in Another set of FAQs on divorce. The post addresses the concerns of the party who may find themselves paying the other party's attorney fees.

I also suggest reading two of my posts: You think you cannot afford an attorney for your family law case? (the points made by Indiana Family Law Blog apply to all types of family law cases) and Attorney fees, again - Custody Cases Ordering Fees (which lays out in a bit more detail the law on attorney fees and which applies to all types of family law cases).

Family Law: Be Wary of Advice

I learned early on in my practice that clients listen to family, friends, co-workers, and even hair dressers - some times to the point of disbelieving me. Well, more back then than now.

Dads Divorce has a great post close to this subject and a great headline: Parents Making Divorce Decisions: Don’t Take Advice from Family and Friends. Man or woman, preparing to file divorce or in the middle of a case, people need to read this. A few points:

Your family and friends all mean well. They want to support and help you through any crisis. But be aware that along with their support they bring with them the baggage of opinions and judgments that inevitably color their advice. If you allow yourself to be influenced by the well-meant suggestions of these individuals, you may find yourself falling into a deep quagmire of confusion or even depression.

***

A professional divorce attorney, mediator, therapist or member of the clergy with experience in these matters can be a sounding board for you while offering a more impartial perspective on your present situation. It makes sense to talk to such a professional for advice, feedback and as a gauge to see if the direction you are moving in is the wisest for everyone in your family.

Trained professionals know how to remain dispassionate while providing encouragement and support. They know how to listen and ask questions that clarify your challenges and the options available to you. Once you come to a decision and feel it is the most optimum and congruent direction for you and your children, take action and move ahead. Don’t ask for agreement from your friends and family. Ask instead for their support.

No two cases share the same specific characteristics but only have broad characteristics in common. What might have been true for Tom, Dick or Tracy will not necessarily be true for you.

Ask questions of your lawyer. Listen to the answers. Read this blog's archives. Do not rely on war stories from friends, family or co-workers.

A Compliment from Across the Water

Thanks to bloody relations for the compliment in Our Friends American.

Family law and electronic discovery - News

I previously wrote that family lawyers and our clients need to keep an eye on electronic discovery. Georgia Family Law Blog's Nation's Top Divorce Lawyers Note Dramatic Rise in Electronic Evidence shows my concern was justified:

"A resounding 88% of the nation's top divorce attorneys say they have seen an increase in the number of cases using electronic data as evidence during the past five years, according to a recent survey of the American Academy of Matrimonial Lawyers (AAML). E-mail takes the lead as the most commonly used form of technological evidence, with 82% citing it as the main source. Interestingly, the survey also reveals that wives are more likely to make use of electronic evidence than husbands."

Know what is on your computer. Better yet, do not put anything on a hard drive that you would not want to see on the front page of the local newspaper.

Tips for Dealing with the Other Parent

I liked Parenting Tips for Divorced Parents from South Carolina Family Law Blog so well that I copied the entire list. I would add these apply to paternity cases, too. The list is:

• Try to make your dealings with your child's other parent as pleasant as you can -- even if he or she doesn't.
• If your ex knows how to get under your skin and uses this knowledge unfairly, resolve to keep your cool anyway.
  
• Bring a friend with you when you have to see your ex in person, as the mere presence of another person often calms the mood.
• Don't hang on to old resentments, especially when your children are present.
  
• Take time to calm down and remind yourself that the remaining connection to your ex is solely about the welfare of your children.
• Bite your tongue when you are tempted to speak ill of your ex in front of the kids.
• Talk to your ex about how to handle discipline, school projects, health-care matters, extracurricular activities and other situations you both need to have input on.

The Fort Wayne Journal Gazette on the Season for Divorce

I wrote before about the seasonal increase in divorces here. Today's Fort Wayne Journal-Gazette published Holidays give way to divorce season. I would call it a rather good article but I must admit a bit of bias:

"The busy filing season isn’t unique to the United States, says Sam Hasler, a Madison County family-law counselor who writes a blog discussing family-law issues.

"

Great Family Law Website and a bit more on Wikis

Thanks to Family Lore for pointing out the web site for The Rosen Law Firm. I think lawyers need to take a close look at this website's design and its content. It gives me some ideas for when I upgrade the website. Lawyers should take heed of this kind of website because I think the public will prefer this amount of information in this format.

The site has value for non-lawyers, too. While geared towards North Carolina, listen to the video from Mr. Rosen. Several points apply to Indiana divorces, too: 1) speaking with a lawyer, 2) the advantages to settlement over going to court, and 3) that divorce itself is but a small part of the dissolution of marriage process (he says this is only true for North Carolina but I take that to be a bit of overstatement).

Family Lore was not the only source trumpeting the Rosen Law Firm. Fortune Small Business published Boosting teamwork with wikis which dealt with Mr. Rosen's efforts to move from Louts Notes to a wiki. I have written about wikis here and here and here. I am working on a wiki myself for another area of law. Anyone thinking these tools are only for the computer geeks amongst us need to think again.

Study Shows Fathers Differ from Mothers

I caught up with Study: Divorce Affects Father-Child Relations on Dads Divorce and I am perplexed.

A team of Penn State researchers has discovered that in families with divorced parents, the emotional distance is the greatest between teenagers and their fathers, with repercussions affecting the children into their college years.

I had one reaction of what data supports the study while also thinking that this sounds like reality. I suggest reading the full post and ask how much of the behavior described comes from fitting into a role put upon us by society and how much of it is our own preference. Then decide how to change, if you want to change. I am still not satisfied if the study explains why instead of describing what is.

New Divorce Law Blog

I recently discovered The Oregon Divorce Blog. I ought not call this blog new - its archives show it has been around since April of 2007. I am a bit chagrined as I thought I had seen most of the divorce and family law blogs. This goes to show that more are out there and we need to keep our eyes open.

While concentrating on Oregon law, this blog has some lists that I think have a more general application. I already wrote about one.

I find Divorce Tech: Online parenting class interesting for several reasons:

1. I cannot remember how long ago it was since I had a divorce where one party was outside of Indiana. Right now I have several post-divorce cases where one party resides out of state, and I think this has to say a lot about Indiana.
   
2. I do not think we have anything comparable to the program mentioned in the article. My last divorce where the parent lived out of state came out of Delaware County which does not have a mandatory counseling program but I think we could probably get the requirement waived in counties having a mandatory requirement. Which does defeat the purpose for the requirement.
3. I guess my internal computer geek comes out with these kind of stories.
   

Child Custody and Military Deployment

I see no way to digest Massachusetts Divorce & Family Law Blog's Military Deployment Often Means Loss of Custody to the Other Parent Back Home, so I just say go read it. Having heard similar reports over the past year, I got to say this is a trend even if it is not one I have seen here locally. When I think about the numbers deployed and the length of deployment, we will see these cases in Indiana.

Determining Property Values in Indiana Divorces

I wrote about the law on dividing property here. How do we go from the law's abstractness to the facts of your case?

First, everyone needs to know what is the marital property. At this point, I usually caution the client that we do not want to know just how many forks, towels, and plates there are in the house. A point exists where detail becomes excessive and obscures the value of the property. For a similar but also different system, take a look at Texas Family Law Blog's Professional Organizers Can Help In Texas Divorce Cases. I suggest if you have a video camera or access to one, then use that for the inventory.

Once we know what is the marital property we need to get a value for the property. I suggest three ways for getting the value of the property:

1. Hire an appraisers. These cost money. Having real estate, pensions, or certain kinds of personal property may justify the use of an appraiser. However, if you do not want to keep the property, then my number 2 might be a better course.
   
2. Selling the property for a market value. This works best if there is a recognized market for selling the property which means this is better for selling real estates and some personal property but really bad for pensions and other sorts of personal property.
   
3. The parties testify about what they know about the property's value. Please forget this if the other party has an appraiser.
   

Custody - Thanks to Britney Spears and Domestic Diversions

What does Britney Spears have to do with family law? I realize reading Domestic Diversions' Britney Spears teaching America . . . Divorce and Custody 101? that number 1 is part of the problem I have with a particular case: "Courts, not Divorcing Parents, Ultimately Decide Custody." I cannot get the client to understand that while he thinks he is right, opinion does not sway a judge without also having facts.

I have my vanities but I do know the limits of being a lawyer. The client asked a question about why the mother was presumed to have custody. When told the Indiana General Assembly gave her a presumption of custody, he did not like that. I told him he needed to take that up with the General Assembly. He did not like that and acted like he still thought that the court would/should do something different than what was ordered by the General Assembly. With that mindset I should not have been surprised that he thought the court should give him preliminary custody just because he showed up for the hearing.

Everyone has their role to play. Lawyer get to argue about the facts created by their clients and then the judges get to apply the law to the facts. We get only the cases that our clients create for themselves.

Going to Court - Testifying

I generally tell my witnesses do not volunteer, do not blurt, but Virginia Family Law Blog has 5 things to consider before you talk to the judge that I think covers the same ground quite nicely.

I would add a few points:

1. Judges like order because the innate sense that a hearing is something other than a brawl, judges have more cases on their calendar and disorder leads to those other cases getting backed up.
   
2. Making comments from counsel table while the other party testifies does not impress the judge with anything other than your rudeness and discredits you.
   
3. I agree with not making any fashion statements. Piercings and tattoos may look good at the club the night before, but not in court. Which brings me my fourth point.
4. At a hearing, we are all on trial. The judge notices behavior and reactions even while you just sit next to your attorney. That someone lies on the stand surprises only the non-lawyers. There are ways of dealing with this that work much better than denouncing them while they testify (see #2).
   

A bit of an update: Rhode Island Divorce Lawyer Blog has a similar and somewhat overlapping list in its post Rhode Island Divorce Tips for Court Appearances!.

Advice on Doing Your Own Divorce

Why handling your own divorce is a bad idea comes from The London Times, has an English perspective but not so entirely mired in England that it has no application over here.

I see only the first proposition as being too English. The second applies here insofar as you got to know the case law as well as the divorce statutes. As written, the seventh does not really apply here - except for (maybe) dividing property and/or child custody. Skipping the reference to ancillary relief, number 9 does apply here because it is very difficult, if not unethical, for an attorney to negotiate with a pro se divorce party.

All the others apply here but I got to admit to I do love two in particular:

5. Cross-examination is an art, not a science. Watching Perry Mason will not turn the man or woman on the London Underground into a fully-fledged trial lawyer. There is only so much advocacy that can be learned from books. The rest is experience and flair, which can only be honed into something serviceable after several years in the business. Effective cross-examination is an art that very few are able to master to a high standard. Anything less than that standard is likely to fail to produce success. At worst, it could be repetitive and annoying.

Pro se parties use cross examination for arguing with the other party and not for asking questions. Judges do not like that. Yes, cross examination is hard work. I spent a week last March in the trial advocacy college. I had to unlearn some bad habits - and I do this stuff for a living. Laypeople think that barking at the other side will suffice as cross examination. Nooooooo. Last week, I quite neatly set up the opposing party and got her to admit to being a liar about my client, got the client more visitation than allowed under the guidelines and the client could not understand why I was not more brutal towards here.

Please read the whole article but pay particular attention to the eighth point: "It’s a false economy."

Thanks to Family Lore for the lead to this article.

Speaking of the McCartney divorce and representing one's self, do read Heather Mills minus the divorce lawyer. The setting might change but I think it describes what a pro se party will feel in court:

For those unfamiliar with the facilities at the Royal Courts of Justice, let me describe the atmosphere in the sombre courtroom. . Until a final deal is signed and approved by the Court, a fully fought contest could yet take place. Even an agreement reached “in principle” does not guarantee a done deal - and could still break down.

The courtroom is imposing. The High Court judge, Mr Justice Bennett, will sit on a raised dais, without robes or wig. Ranks of lawyers will be seated opposite him. The formidable Queen’s Counsel Nicholas Mostyn, who pulls no punches - he once fearlessly cross-examined an entire opposing team of lawyers, including one by video link while she holidayed in Japan - will sit on the front row. I do not expect him to spare Heather Mills. Behind them will be the barristers and solicitors.

Put a chill down my spine.

A View From the Bar

Bloody Relations calls it a rant. If so, it is the least childish rant I have ever read.

It may be English but I can say I have felt the same way during the past twenty years.

For those who think less than kind thoughts of their lawyer, read Flexibility is a principle too.

Top 10 list: Top 10 things to NOT do during your divorce.

The Oregon Divorce Blog wrote the original Top 10 list: Top 10 things to NOT do during your divorce., and I have now seen it at South Carolina Family Law Blog (where I saw it first) and the Missouri Divorce & Family Law Blog.

Read this. I say most of them apply to any legal matter and almost all family law matter. I would add not listening to your attorney and not asking them questions as big mistakes. Still, a list of ten catches the eye and ear..

Happy Valentine's Day

Read Valentine's Day Tips to Stay Happily Married from The South Carolina Family Law Blog.

Child Support: What are Substantial and Continuous Changes

I wrote about how often a person can modify child support in Indiana in How often can you request a child support modification?. I think the twenty percent (20%) change between the previously ordered child support amount and the current amount calculated is pretty much self-explanatory. What makes a substantial and continuous change is less apparent.

Why a substantial and continuous change so hard to pin down is that most of these changes depend on the case. When someone loses a job, they should get into court for a modification hearing. I would not give the same advice if one merely shifted from job to another without any great increase or decrease in income. With the online child support calculator, ordinary people have the ability to calculate their child support. I think most of us used a rule of thumb that a $100.00-$200.00 change in the gross weekly income did not justify the costs of modifying child support. I would certainly say there has been a substantial and continuous change when one party's income doubles from something like $20,000.00 to $40,000.00. Between these two examples, I suggest you contact a lawyer and talk over the details.

Family Financial Planning

The South Carolina Family Law Blog started a series about family financial planning with Your Family's Financial Plan: Are You Prepared in Case of a Family Catastrophe? (Part One). That was on February 1, 2008. I suggest this to anyone. I can say that because it brought up some points I will need to talk about with my wife!

Be Wary of Tax Fraud

Asset Search Blog reports on when the Internal Revenue Service might just pop up in a divorce/family law case. Often enough, I have a client who wants to report the other party's hanky-panky with taxes. One situation mentioned in Divorce, Child Support & Reporting Tax Fraud is something new for me:

When the divorcing husband admitted in his affidavit that he had not paid taxes, the judge in Hashimoto v. De La Rosa, 2004 slip op. 51081(Sup. Ct. N.Y. County, June 23, 2004) reported him to the I.R.S. In Beth M. v. Joseph M., 2006 slip op. 51490 (Sup. Ct. Nassau County, July 25, 2006), the judge similarly reported a husband who testified during divorce / child support proceedings that he had not filed tax returns for the years 1997 through 2001 and other times. The admissions made by these two divorcing spouses could possibly have led to tax fraud charges pursuant to 26 U.S.C. § 7201.

Nothing would prevent an Indiana judge from doing the same thing as these New York judges.

The article has also information on how to report to the IRS and on innocent spouse status.

Prenup Humor

Not too often do we get a chance at humor here and it may be a risky venture that will not be repeated.

The Programmer's Prenup - CIO.com - Business Technology Leadership: "The Programmer's Prenup
Are wedding bells in your future? If you or your betrothed happens to be a programmer, it pays to know that special marriage conditions apply. Our handy programmer's prenup helps spell out the details."

Paternity: A Glossary of Terms

See the very long list at Glossary of DNA Paternity Testing Terms. This list has terms that go beyond its title and that might be of interest to everyone. The testing terms might interest attorneys more than laypeople.

Child support cut-off in Indiana

Indiana generally cuts off child support when either the child is emancipated or when the child reaches 21 years of age.

If the child goes to school after high school, then the ending date can go past 21.

Mediation and Family Law Blog

I think those wanting information/insights into mediation and family law ought to take a look at FamilyCraft: The Private Practice of Family & Divorce Mediation's Divorce, Mediation and Fairness: A Potential Client's Inquiry.

Rather long, but better to get the whole deal. Here is the conclusion:

In short, managed with experience and skill, the mediation process promotes, not detracts from, the likelihood of married partners finding fairness and satisfaction in the difficult task of divorce.

New Divorce Blog From Scotland

Not written by a lawyer (or solictor), Divorce Survivor is very new but may have interest.

Protecting Seniors Living Together

If you are retired and living with someone or thinking of living with someone, then read Cohabiting Seniors: Protect Your Rights.

The article makes several suggestions for actions to take, and I can help you with the following:

1. Sign a cohabitation agreement.
   
2. Provide access to health care decision making - living wills and health care powers of attorney.
3. Sign a durable power of attorney.
4. Update your will.
   
   

Marriage, Cohabitation, Divorce - Oh, the choices

No light reading contained in Blue over you Why red states have higher divorce rates. Covering Georgia, Connecticut, religion, education, divorce, Sweden and living together, does make for an easy summary of the ideas kicking around in this article. No need to remind anyone that Indiana is a red state?

Every Case Is Unique

Florida Divorce Blog writes something so very true but so difficult for consumption in Missing TN Boys’ Custody May Be Shared By Father Accused of Murdering Mother’s Teenaged Boyfriend and Drunken Mother Who Gravitates Toward Boys:

Every divorce is unique. And some are more complicated than others.

And some cases put judges in the unenviable position of having to make very difficult decisions.

Post-Divorce Resource for Women

I pass this along without being able to say much about Firstwivesworld. The site describes itself as:

"firstwivesworld is a community for, and by, divorced women. You are never alone in a place complete with new friends experts, services, news and entertainment. No matter where you are in the process of divorce, we've simplified your search for information and support by creating sections for each stage of divorce - Contemplating, Navigating and Moving Beyond."

Prenuptial Agreements: They are Getting Popular?

Call me a conservative but I am not sure I agree with So You Want Sex Every Tuesday, Thursday and Saturday? Put It In A...Prenup:

News that prenuptial agreements are soaring in popularity is no surprise. But it's no longer just assets and alimony. And it's no longer only about what happens if and when the marriage fails. Prenups are now leaving the bank and entering the bedroom, covering the most mundane aspects of day-to-day marital life -- not after, but during the marriage! When my girlfriend shared with me one of her so-called "lifestyle clauses," I almost fell over. Not that I'm against defining expectations and communicating a detailed understanding of what life together would entail, but isn't who takes out the garbage a bit too trivial to document? I had never heard of such a thing and thought, truly, this can't be true....

The writer provides a series of clauses in the remainder of the post. I want to suggest a very imporant one. Lawyers call it a severability clause. A severability clause prevents the whole contract from falling apart when a particular clause is struck from a contract like a prenuptial agreement. I am not sure that the clauses suggested in the original post would survive an attack in an Indiana court.

The Indiana General Assembly and Family Law

Indiana Judicial Center: Legislative Updates links up with pending legislation of interest to the judiciary. Following the Family & Juvenile Law, I see nothing about the Senate Bill on grandparent's visitation (see my post here on that subject).

I also found this under miscellaneous and which I think ought to have importance to family law matters:

SB 155

Study on domestic violence programs

1/10/08 Do Pass

1/15/08 Engrossed

1/17/08 Passed 46-0

C. Brown

Divorce: Hiding Assets and Property

Not your typical hidden asset stories but very interesting ones. Bearer Shares & An Asset Search and An Asset Search, Tax Fraud &; Divorce both come from The Asset Search Blog. I suggest reading both of them.

The closest I have come to this kind of case turned out to be more of the wife hoping for hidden assets. For those who think of hiding their assets, these articles ought to show you that everything leaves a trail. The question needing asked is what is the cost of finding them. That person needing to understand that these things cost money is the person from whom the assets are hidden. Investing in a private investigator with experience in tracing assets can bring some happy returns.

General Family Law: One Attorney for Two, Not

I thought about writing on this topic, but I think Minnesota Divorce and Family Law Blog nails the subject with its post When One Attorney is Involved in a Divorce.

In Minnesota and most other states, one attorney cannot represent both parties in a family court proceeding. (Do not be misled by the movie Juno!) Yet it is common for divorces to happen with only one attorney involved. When one attorney is involved, that attorney represents one of the parties; the other party waives counsel.

Indiana's Rule of Professional Conduct Rule 1.7 limits one attorney from representing two clients when:

(1)the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

I see this situation often enough even now: former spouse comes into the office and says that they had one attorney for the divorce (usually that but sometimes other matters) and now he finds out whatever was done just is not very good for this former spouse but is for the other and that former spouse finds themselves without legal counsel. Quite often the former spouse says that the attorney never told former spouse that the former spouse was not the lawyer's client. I discount this but I suppose it is possible for a variety of reasons. However, the reason for having only one lawyer never varies: they wanted to save money. Whatever savings they had get lost when a subsequent attorney comes into the case to clean up the case.

If nothing else remember these two ideas:

1. In family law cases, one attorney per client.
2. You get what you pay for.
   

Grandparent's Visitation - The Indiana Lawyer Article

I wrote about this in Indiana General Assembly Proposing Change to Grandparent's Visitation. The last issue of The Indiana Lawyer newspaper published Parent vs. Grandparent Bill broadens grandparent visitation law.

While the whole article has very good points, I do want to point out these paragraphs:

Those practicing in this area of law point out that lawmakers are looking to fix something that doesn’t need fixing, and they question the need for this legislation.

“The bill expands the possible universe of grandparent visitation cases,” said Sam Hasler, a family law attorney in Anderson. “Right now I would say that the General Assembly is changing something not needing change and going to create a whole lot more litigation than we have now on grandparent’s visitation.”

Sen. John Waterman, R-Shelburn, has proposed the legislation that’s assigned to the Senate Judiciary Committee. Similar legislation has been pitched in past years but has died without approval. Sen. Waterman didn’t return telephone calls to comment for this story.

Update 4/15/08: New Grandparent's Visitation Case

Indiana Divorce FAQ

I am not trying for detail in this set of Frequently Asked Questions. If I could put the details into one post, then there would be no need for this blog! No, I am trying improve upon what I did before here and here. I also am trying to use the common FAQ format.


How long do I have to live in Indiana before I can file for divorce?

Six months in the state and three months in the county.


What are the grounds for divorce?

We call Indiana a no-fault divorce state. All that needs done is say that there has been an irretrievable breakdown of the marriage.


What does "irretrievable breakdown of the marriage" mean?

I say think of Humpty-Dumpty - there is no way to put the marriage back together. For a more formal definition, take a look at my post Defining Some Legal Terms for the Divorce Case.


What does it mean to be a Petitioner and a Respondent?

Read my post Defining Some Legal Terms for the Divorce Case for a formal definition of Petitioner and Respondent. The Petitioner chooses the filing of Petition for Dissolution of Marriage, whether the divorce becomes final, and (generally) the court that will hear the Petition for Dissolution of Marriage. A Respondent merely follows the lead of the Petitioner.


What is the difference between a contested divorce and an uncontested divorce?

The contest in a contested divorce is not about whether the court will or will not dissolve the marriage. Unless the Petitioner says the marriage is not irretrievably broken, the court will dissolve the marriage. The issues open for a contest are dividing property and debt, child custody, and with the right facts - visitation (parenting time).

For an uncontested divorce, the parties agree to division of their property and (if they have children) custody and parenting time and child support. For a bit more detail see my FAQ: The Uncontested Divorce.


How do I start a dissolution of marriage?

First, your attorney prepares a Petition for Dissolution of Marriage for you to sign. Second, that Petition, a Summons, and the money for the court costs are taken to the lcoal courthouse for filing. Those are the first steps. I have more detail in Divorce: Starting the process.


How long does it take to get divorced in Indiana?

It cannot take less than 60 days but it can take more depending on issues contested and the availability of the judge to hear the case.. I have a bit more detail here.


What is the provisional hearing?

The provisional hearing deals with the temporary matters that need to be taken care of before the Final Hearing: getting the property necessary to live; temporary child support and custody and parenting time; and temporary maintenance. I have more details here.


I do not want to take all of my spouses property.

You cannot do that. Indiana law presumes a 50-50 split of the property. I suggest reading FAQ: Property Division for the exceptions.


Does Indiana Have Alimony?

No, Indiana does not have alimony but it does have maintenance. I have an alimony FAQ here.


What is maintenance?

Its purpose is to give financial support to a spouse. Indiana allows a court to impose two types of maintenance. Temporary maintenance runs from the provisional hearing till the Final Hearing. Maintenance after the Final Hearing requires special circumstances. I have FAQ: Maintenance to explain this in more detail.


Do I Need a Lawyer to File a Divorce?

No, you do not. If you think you can prepare the documents properly, get them filed and represent yourself, then you could handle the divorce on your own. I strongly urge anyone whose case involves children and/or real estate that they get an attorney. What you save will be quickly eaten up if you or your spouse foul up the proceedings. If you persist in representing yourself, please read the articles (and there a few of them) I have written about pro se parties here.


What Will I Pay in Child Support?

I have no way of telling without seeing numbers. Indiana has no set amount of child support for a particular number of children. I suggest you read my FAQ: Child Support for the details on setting child support. Indiana has an online child support calculator here and you can find the Indiana Child Support Guidelines (our rules on how to set child support) here.


What Will Be My Visitation?

Indiana law now calls visitation, parenting time. No longer do we have county guidelines but we do have state rules that actually cover more than visitation. These Guidelines breakdown by age of the child and type of visitation. You will need to read them and they can be found online here.



Will I Have to Pay My Spouse's Fees?

Indiana law allows for attorney fees. The trial court can order attorney fees for the entire divorce case. Parties’ incomes determine how the court orders attorney fees except for contempt. (Contempt is about enforcing the court’s orders and it will depend on winning the case rather than the income of the parties.) If one party has a great deal less of an income, the other party needs to expect to pay attorney fees.


What Will Happen at The Final Hearing?

Answering that about your particular case requires knowing about your particular case. I can say the marriage will end, property and debts will be divided, and orders on custody and child support and parenting time, if there are children. You might also want to read my FAQ: The Final Hearing - Do We Really Have to Go Court?



What do I do if I want to keep up on the news about Indiana divorce law or get more information?

The easiest thing for keeping up to date is use the e-mail subscription service to get e-mail updates of this blog. You go to the top of the right hand column and you will see where to sign up for e-mail updates. You can also see my other articles on prenuptial agreements by clicking the link below that reads "Divorce general". Or go down the right hand side until you get to the Archives by Subject and read more detailed and specific articles by subject.

We Now Accept Credit Cards

To make payment more convenient for my clients, I started accepting Mastercard and Visa credit cards on January 28, 2008.

Mother Fails In Using Paternity Affidavit Against "Father"

Unlike the usual case attacking paternity affidavits, In the Matter of the Paternity of H.H., Richard Lucito v. Ericka M. Hughes (PDF format) has a woman and man both knowing that man was not father and the trial court setting aside the paternity affidavit after the man petitioned to establish custody, support, and parenting time of the child.

The Indiana Court of Appeals reversed the trial court. The Court of Appeals held that Ind. Code § 16-37-2-2.1(i) applies only when the mother fraudulently conceals the child's paternity from the alleged father. Neither the statutory language nor public policy supported setting aside a paternity order that was three years old.

Lucito is the only father H.H. has ever known. He was there when she was born, has provided for her financially and emotionally since her birth, and has continued to visit and support her after his separation from Hughes. He is her legal parent and has assumed all responsibilities attendant thereto. Changing his legal status at this late date is not in the best interests of H.H., Lucito, or our State.

Bottom line? Be very, very careful when signing off on a paternity affidavit, but I have tried to make that point before here and here.

Child Support: New Court of Appeals Case - arrears, interest

Yesterday, The Indiana Court of Appeals issued its opinion in The Matter of McGuire (PDF format) The Court of Appeals decided that parents sending a child to live with a third party does not end the non-custodial parent's child support obligation (distinguishing Whited v. Whited, 859 N.E.2d 657 (Ind. 2007) (PDF format). The Court of Appeals held the father needed to pay daughter for the child support accruing while she lived with the third party (mother brought daughter into the case as a third party.)

What the Court of Appeals wrote about the calculating of child support arrears ought to be a bit troubling:

...We have carefully reviewed the four page document submitted from the Indiana Support Enforcement Tracking System and find it could support different conclusions regarding the amount of child support Father had paid toward his obligation to Mother. Accordingly, we cannot find clearly erroneous the court’s finding Father paid $2,048.00 toward his obligation to Mother.

(Opinion at 7; footnote omitted). Been there and seen that. The Court of Appeals addressed recalculating the arrears and amount father was to pay on the arrears before addressing prejudgment interest.

Other than the arrearage due, I think the prejudgment interest the most important issue. The statute controlling the issue is Ind. Code § 31-16-12-2. The statute says it must be requested by the person entitled to the child support payments. The trial court found that mother had waited to long to enforce her child support order, and denied interest. The Court of Appeals relied again on the Whited case summed up the problems with mother's case in this paragraph:

Mother waited nearly ten years from Daughter’s emancipation to file an action regarding Father’s arrearage. It appears Father had not paid child support for a number of years prior to Daughter’s emancipation. Accordingly, we cannot find the court abused its discretion by concluding prejudgment interest was inappropriate based on the number of years Mother acquiesced in Father’s failure to pay....

(Opinion at 9; citation omitted).

The Court of Appeals upheld the trial court's denying the mother an award of attorney fees. From the following, I assume the problem was a failure of evidence:

...The court did not consider the factors discussed in Sutton, such as the relative incomes of the parties; however, as we find no evidence in the record regarding the income or earning ability of Mother or Daughter, we need not remand for the court to reconsider whether to impose attorney fees on Father. Accordingly, we find no abuse of discretion in the court’s denial of Mother’s request for attorney fees.

Another reminder that time is the enemy - those who wait too long will not find the law charitable towards their delay.

Child Custody in South Dakota and Some Thoughts on Indiana

Florida Divorce Blog picks up an article about South Dakota custody law. See SD Re-Evaluates Child Custody Laws:

"Under current South Dakota law, temporary custody of children is apparently awarded to the parent who has been the primary caregiver for the thirty days prior to filing. Unfortunately, a snapshot of such a short slice of life may not accurately reflect which parent has been the primary caregiver over the longer haul."

I want to write just another example of how family law differs between the states, but I have to also say that I do not see how 30 days can say anythng about the best interests of a child. The proposal for extending this to one year strikes me as a good indicator. If the parties separate for a year without the non-custodial then wanting custody, I would want the non-custodial parent ot have a very good reason. Like being stationed in Iraq or in a coma or too broke to afford much more than the rent.

Preparing for Divorce - Protecting Property

I suggest reading Preparing for Divorce in Mississippi: Step 5 - Document, Photograph, and Safeguard Personal Property from The Mississippi Family Law Blog. Good ideas, good advice, and something not hard to do with today's digital cameras and camera phones.

The first step is to inventory and photograph all your household possessions including furniture, art, jewelry, and valuable items. Why is this so important? First, you need to have a complete inventory of your assets for property division. Second, once you have informed your spouse of your intentions, things might start to disappear. But, if you have photographs, your position is strengthened