Happy New Year

Celebrate wisely and may we all hope the coming year is kinder than its predecessor !

Family Law Statistics - What There is and What There is Not

This follows up Indiana Trial Court Statistics in a way. Massachusetts Divorce Lawyer Blog published the post Divorce Statistics in Massachusetts.

The probate and family courts of Massachusetts recently released data of different types of filings from 2005 to 2009.

Several interesting numbers:

Divorce filings in 2005 – 47,130
Divorce filings in 2009 – 53,097

Paternity filings in 2005 – 36,583
Paternity filings in 2009 – 49,754

So it is not just Indiana that lacks any detailed data on what goes on in paternity or divorce cases: how many are dismissed, how many involve children, custody dispositions, the number of modifications, the issues being modified, and so on.

We - that is lawyers and judges - are trained to think of the case before us and not how that case, that client fits within the overall system. The more I write here and the conversations I get into because of this blog, the more I think we should.

Suggestion for Divorcing or Divorced Parents on Twitter

A while back I checked out We Follow and did a search for Tweeters using the word "divorce".  This link should take you to the same results.  (If that does not work, then go here and do the same search as I did).

What I noticed is a lot of support group types.  Do give check them out if you feel the need.

I recognize this as touching on the area where my lawyer skills do meet a need of my clients and so I offer them without making any particular recommendation.

Want to Take the Fight Out of Divorces? Ontario Is.

Recently, I have been writing about Indiana's family law system in general (see Should Indiana Have a Statute Promoting Collaborative Divorce? and Follow up on If You Could Change the Delivery of Legal Services.) and Taking 'combat' out of divorce system from the Toronto Star caught my eye.

Ontario has good ideas - or so I think.

As of that date, every person applying for custody of or access to a child must complete a sworn statement outlining "the facts and circumstances that relate to the child's best interests."

The often thorny matter of money will also be tackled as financial information relating to child support will have to be disclosed annually.

And a parent whose name was left off their child's birth certificate will have the legal right to apply to have their surname added to their child's surname if the court grants a declaration of parentage.

And a parent whose name was left off their child's birth certificate will have the legal right to apply to have their surname added to their child's surname if the court grants a declaration of parentage.

***

To that end, Bentley wants the system to provide more information to families up front about the legal steps they need to take and, more importantly, the impact on children when a relationship breaks down.

He wants the system to better be able to identify straightforward cases that can be resolved quickly and easily to free up resources for more complicated disputes.

As well, Bentley plans to make it easier for families to get legal advice and encourage them to pursue "less adversarial" means of resolving matters, such as mediation.

When Is A Division of Pension Dischargeable in Bankruptcy?

Short answer: it is not even part of the bankrtuptcy.

I bring this up because I just used Google Scholar's ability to search appellate opinions.  I decided to see if it included Indiana opinions and so I used my full name.  It does include both Indiana appellate decisions and decisions from our Indiana bankruptcy courts. 

The search turned up an opinion from Judge Bayt from the United States Bankruptcy Court (Indianapolis Division) in a case of mine dealing on whether husband could discharge a division of his pension from his divorce:  In re Britten.  Judge Bayt did a wonderful job of collecting the case law on pensions and QDRO's and I do not think there are any major changes since then.

Quite a learning experience on two levels.  The first was about the law and the second was about research.  The second one was much more humorous - call it a case of both lawyers looking at the trees and not the forest.

I no longer practice consumer bankrutpcy law but I am quite happy to represent creditors - including divorced spouses - in bankruptcy court.prop

Property Division - Comparing Indiana and Texas

I have another reason to prefer Indiana's divorce laws. Reading Dallas Divorce Law Blog's Will it be held against me if I get another woman pregnant before my divorce is final?, I got struck by how commonsensical we are.

Texas is a no fault divorce state which essentially means that neither party necessarily has to prove the other did something "wrong" causing the divorce. However, fault grounds often arise in divorce proceedings and the court will consider them in dividing the community property. The division of property under the Texas Family Code has to be "just and right" - not necessarily a 50/50 split. A man and wife are still considered married until the court enters a final decree of divorce, therefore getting another woman pregnant before your divorce is final is considered adultery. So, what is the effect?

Back in law school, my Contracts professor had a class of words and phrases he called "weasel words". I read "just and right" as being weasel words. With Indiana's 50/50 presumption, there is little discretion other than in totaling up the numbers. I see a far wider-ranging discretion than Indiana allows.

For an example of an Indiana case, take a look at my New Indiana Case: Swadner v. Swadner Part V (Property Division).

You may also find How does Indiana value the marital pot? interesting.

Catching Unasked Questions 2: Relocation, custody, legal separation

Social Security Information from the WSJ

Ex-Spouses and Social Security Benefits -

To review, here are the general requirements for collecting retirement benefits based on an ex-spouse's earnings: Your marriage had to have lasted at least 10 years; you can't be remarried; you have to be at least 62; and your ex-spouse has to be entitled to Social Security retirement or disability benefits. If you haven't yet reached your full retirement age, you would receive a percentage of the benefit you would be entitled to get at that date.

Thinking on Local Rules - Their Limited Use and Value

Having written on local rules used in Allen County, Delaware County, Grant County, Henry County, Shelby County, and Fayette County, it is my own county's - Madison - that hit me upside the head this past month.

Let me quote the particular rule that lead to this post:

LR48-TR33-24 LIMITATION ON INTERROGATORIES

Interrogatories shall be limited to a total of fifty (50), including subparts, and be used solely for the purpose of discovery and shall NOT be used as a substitute for the taking of a deposition. For good cause shown, additional interrogatories may be permitted.

(And for the non-lawyers, you might notice that this rule is not to be found under the family law rules but under the Trial Rules.)

Secretary counts the Interrogatories from opposing counsel and they quite exceed the number allowed under the Local Rule. Motion to Strike filed on December 11 is denied on December 14.

Is it worth appealing this Order? Not in this case. Does the judge's Order defeat the purpose of the Local Rule? You bet.

Throwing a Divorce Party

Let us just say that my Midwest conservatism leaves me a bit ambivalent about this post. I keep thinking I have mentioned this trend before but cannot find the post (if there was one). I can see the sense of a divorce party (and I suspect there have been many more long before the British made it popular but probably lacking the bonfire). Why it is here? Because this touches on a divorce issue that is emotional and that lawyers just do not handle well. So here goes:

How to throw a divorce party……like those Brits

4. Create a bonfire. There are bound to be one or two items you want to burn like the dress or his necktie from the big day, or pictures of the honeymoon, or whatever.

***

6. Don’t forget to show appreciation to all the people who stood by you during the tough time.

***

8. Make sure it is cathartic, don’t hold in or back. The point of it is to mark the end of the “nightmare.

And maybe get a cake, Hilarious Divorce Cakes. I do notice that these seem pitched to females.

Along similar lines - They Took Half. Which bills itself as the first registry for the newly single. Thanks to Judith Middleton and her THEY TOOK HALF for leading me to this.

Merry Christmas!

Merry Christmas!

This is all for today.  Let us give thanks, take the cheer we can, and worry about the law and other problems tomorrow.

Online Resources For Parents

My Indiana readers from Madison County may be familiar with our Children in the Middle Seminar while those in Ripley, Brown, Monroe, Hamilton, and Marion Counties should know of the Children Cope with Divorce program. Florida Divorce * Child Custody * Domestic Violence Law Lawyer reports that Missouri (and Florida) have similar programs online:

University Develops Online Co-Parenting Course for Separated Parents That Graduates Report Really Helps!

Now, researchers at the University of Missouri’s Human Development and Family Studies program have developed an online program, called Focus on Kids Online, to comply with Missouri’s legal requirement. (Florida’s four hour class is also available online.)

And a bit more here from Science Daily Digital solutions developed to support divorced families

HDFS researchers developed Focus on Kids Online, a training course that helps parents going through divorce build stronger, more supportive relationships with their children. The Web-based program is designed to offer parents an alternative to in-person trainings. After completion of the course, parents reported improved relationships and better awareness of separation-related problems and how to solve them, according to new HDFS research by David Schramm, assistant professor, and Graham McCaulley, HDFS doctoral student.

The face-to-face version of Focus on Kids satisfies the Missouri law that requires parents who are divorcing to attend an educational program. It is conducted in cooperation with Missouri's circuit courts and available in 50 counties. Ganong says the online program is growing and will be made available to other states in the future. (Science Daily)

Hoosiers might notice that Missouri's program was created by state statute. I wonder if this HDFS keeps any statistics on its effectiveness.

Indiana Family Law Resources

I am not sure how many readers take a look at the sidebar because some seem to miss a collection of links I have under the heading of Indiana Family Law Resources.

When I created this list, my thought was to create a mini-portal for the most important sources for Indiana family. That does not work very well if no one notices that the information is here.

Nor is it really much use to those using RSS feeds or who have an e-mail subscription.

Every parent should bookmark the first three links.

• Indiana's Parenting Time Guidelines
• Indiana Child Support Guidelines
• Indiana's Online Child Support Calculator
• Indiana Trial Courts and Clerks
• Indiana's Family Law and Juvenile Law Code
• Indiana Rules of Trial Procedure
• Indiana Rules of Appellate Procedure

If you are looking for a specific trial court, then go to Indiana Trial Court and Clerks. This page is maintained by our Indiana Supreme Court. Find the county and this will take you a page showing contact information for each court in a county, the judge's name, a map to the courthouse, and a link to the county's local rules.

Indiana's Family Law and Juvenile Code takes you to Title 31 of the Indiana Code. Here you will find the statutes on marriage, annulment, divorce, parenting time, custody, paternity. child support, and more.

The Indiana Rules of Trial Procedure contains all the rules needed in handling a case procedurally (as opposed to the substance found i the Guidelines and statutes). Not all apply to family law - such as anything dealing with jury trials - but these need knowing for trying a case and they apply in all counties.

Indiana Rules of Evidence are those rules about what is relevant evidence and how we get that evidence before a court. Don't follow these and you do not get your case made.

Indiana Rules of Appellate Procedure are the rules on how to create and handle an appeal in Indiana's Court of Appeals and Supreme Court.

Well, I hope this helps. Bookmark the specific sites or come back here - these will be here.

New Blog for Child Custody, Joint Custody and Shared Custody

I ran across this blog by way of LinkedIn's American Divorce Lawyers group. Its title captures its subject: Child Custody, Joint Custody and Shared Custody.

Quite a wealth of material here, to the point of almost seeming a bit overwhelming. It is much more geared towards parents than lawyers. I think parents should bookmark this one.

Parenting Time - Think the Indiana Parenting Time Guidelines For Christmas are Confusing?

Do not feel lonely.

Give a look at Confused by Indiana Parenting Time Guidelines (by the way, the answer from LD got it right) and Familiar with Indiana parenting time Guidelines? .. Christmas break?.

Tamie Jo Morog of Kirtley, Taylor, Sims, Chadd & Minnette, P.C. F wrote It's holiday parenting time from The Paper of Montgomery County and she digests the holiday rule like this:

If there are issues, consult the Indiana Parenting Time Guidelines (IPTGs). Regarding Christmas vacation, the IPTGs state that each parent gets "One-half of the period which will begin at 8 p.m. on the evening the child is released from school and continues to Dec. 30 at 7 p.m. If the parents cannot agree on the division of this period, the custodial parent shall have the first half in even-numbered years." This year is an odd numbered year. Therefore, the non-custodial parent gets the first half of this period. The custodial parent then gets the second half. The New Year's holiday begins on Dec. 30 at 7 p.m. and continues until 7 p.m. of the evening before school resumes. In years ending with an even number, such as 2010, the non-custodial parent gets to exercise this parenting time. Therefore this New Year's holiday is the non-custodial parent's holiday.

She also gives some good advice that is well worth passing along:

Remember, however, that the IPTGs are only recommendations. The best way to exercise holiday parenting time with children is to give due consideration to all family traditions - even the other parent's family traditions. Children's lives are enriched if they can celebrate their families' traditions. They should not have to experience their parents bickering or have the pressure of mom and dad fighting, or arguing about where the children are going to be at any certain time or who they are going to be with.

Please remember, put the children first. They will never be this age again, but they will remember how their parents treated each other for the rest of their lives.

Ryan Cassman presents another problem in his Holiday Parenting Time - What Time Does Christmas Eve Start?. Thankfully, I have not had this problem but Mr. Cassman presents a tidy solution:

Holiday parenting time disputes bring out the best or worst in parents, and if your divorce attorney is getting the call, it is likely the worst. So, if you do the math, by the hour the midpoint between December 18th at 8.pm. and December 30th at 7 p.m. is 7:30 p.m. on December 24th.

Attorney fees: What is My Custody Case Going to Cost and How Do I Pay for It?

I get calls asking what will such and such case cost? Last week it was someone asking what was my fee for a joint custody case and regular custody case. Disregarding that legally there is not much difference between the two, the caller assumed that there was a generic price that covered all cases.

I do not have a prix fixe fee schedule. I like how Mississippi Family Law Mediation and Counseling Blog handles this issue in Before you hire an attorney --- What you need to know:

* What kind of fee can you expect to pay?

This is a very difficult question for the attorney to answer because during the early stages of a divorce case the attorney does not know how much time he will spend on the case.

You can find out the hourly charge for services and what kinds of litigation expenses you can expect to incur. Items such as fees for private investigators, appraisers, accountants and a variety of other specialists might be needed.

Fees depend on the facts of the custody case - whether as part of a divorce or as a modification. Generic fees mean that no variation exists between cases. Which then means that you are just the same as everyone else.

What you are getting with a custody case is custom work. Think tailor made and not off the rack, and you should see why the facts matter. About all I can do is give a range of fees and an explanation of why there is a range. I do have a list showing the range work that can go into a custody case and the associated fees posted here.

About paying for a custody case, I suggest reading Maryland Divorce Legal Crier's How To Pay for A Divorce Attorney. These things apply to a custody case, too. I would add to the list making installment payments but would not sub

Living together & Indiana law - Get a Cohabitation Agreement!

I have been writing on Indiana's cohabitant law since I began this blog. My first post on the subject was Living Together in Indiana - And then breaking up. This post comes from what looked like another unsuccessful query: living together Indiana law.

If what the searcher looked for was statutes on living together in Indiana, none exist. I have tried to make this point here and here and here (and quite a few more), with almost no attention being paid.

What Indiana has is common law - that is case law, what is made by the appellate courts - on what to do if things go bad and the partners go to court. Finally An Indiana Cohabitation Case with a Written Agreement contains an example of this type of law.

No cohabitation agreement and you need to go to court. Do you have the money for this? Far less expensive to get a cohabitation agreement than gamble in court.

For those still not convinced, let me send you to Black Married Momma, a non-lawyer's blog and her post - The Casualty of Common Law Marriage:

Most people, we know, don’t go through the investigation, research or expense of entering into these legal contracts. Often too trusting of their faux spouse’s promises and intentions, they begin living together and molding a make-believe union that, all too late, they realize is not protected or recognized by the state or courts when the shit hits the fan.

Many high-profile cases over the years have shown that baby mommas, in particular, have none of the entitlements or protections of real wives. We can consider the multiple mothers of murdered former NFL quarterback Steve McNair’s children. We can look at the fiancé of recently deceased NFLer Chris Henry; she had three children with him without being married – who knows if they had a cohabitation agreement, confirmed paternity of those children or if he included her as a beneficiary via life insurance or will? Women in particular need to know where they stand in relationships, especially ones as precariously fashioned through mere cohabitation.

They are most likely to suffer incredibly in the event of relationship fall-out. If they’ve been too accommodating, they may be left with mountains of debt. If they have relied on a non-husband to provide for them, they may be displaced with no income to shore up. If they’ve helped pay expenses that their names weren’t tied to, they may have absolutely nothing to show for it.

Go read the rest of it and think a bit about not needing a cohabitation agreement.

Let me repeat what I try to say in every cohabitation post: if you are living together or planning to live together, get yourself to a lawyer and get a cohabitation agreement.

Parenting plans & Parenting Time

I started following DIY Divorce in Florida on Twitter and noticed this post from her blog:

Florida Parenting Plans - The Basics & Beyond. This got me thinking about how we do things in Indiana. As I read the following, most of this seems to be covered by the Indiana Parenting Time Guidelines. These points seem covered by our Guidelines:

Jurisdiction

Your Children’s Rights

General Principles of Shared Parenting

Parent-Parent Communication

Transportation & Travel

See SCOPE OF APPLICATION, EXCHANGE OF INFORMATION and A CHILD’S BASIC NEEDS.

So we just say that the Guidelines apply and leave it at that. But then some points about we do not, that gave me something to think about:

Decision-making

* Education
* Medical
* Child Care Provider
* Religion
* Activities

***

Changes to the Plan

Parent-Child Communication Plan

Timesharing Plan - 7 different samples and a blank template you can customize

* Holidays, School Breaks, Vacations and Special Occasions
* Summer Schedule

We do not do this. The Guidelines cover the holiday (HOLIDAY PARENTING TIME SCHEDULE) and and Summer schedules but I infer a difference between us and this type of voluntary plan.

I find the "Changes to the Plan" intriguing as we rely on the visitation modification statute for modifying parenting time - see IC 31-17-4-2. That statute uses the best interests of the child standard.

Mentioning "best interests" brings me to A parenting plan may not be modified solely on "best interests" from The New Hampshire Family Law Blog. That post notes and quotes at length from a New Hampshire opinion wherein a parenting plan cannot be modified on showing of the best interests of the child alone unless the parties agree or meet the New Hampshire statute's requirements:

...However, for routine and holiday schedule changes or other issues that do not call for a change in residential responsibility, there needs to be a mechanism to allow for modification based on best interests so that the court may tweak a parenting plan as the current needs of the child dictate.

Maybe the detailed breadth and depth of our Guidelines are not such a bad thing.

Then maybe we lose something, too. By not writing their own parenting plans, Hoosiers lose being part of the process. Another part of the New Hampshire opinion quoted in A parenting plan may not be modified solely on "best interests" caught my and turned my mind onto this particular path:

The parenting plan form itself encourages parents to view the plan as a work in progress as the children grow and their needs change from infant to teen, but the statute itself does not allow for the changes except in the case that the parents agree or major issues develop as set forth in 461-A:11.

I do not know Indiana parents even notice not being part of the process but just see The Parenting Time Guidelines as something they must accept. Not many realize that the courts are bound by the Guidelines but not the parties. Maybe most parents have no real objection to the Guidelines. Neither the Bar nor the bench have anyway of knowing.

If you think you want to create your parenting plan I suggest giving the Florida Parenting Plans - The Basics & Beyond a good look.

Also go back and read my "Parenting Time: Idea on Scheduling Times for Visitation" on the specific issue of communication.

Charting Your Way Through Your Divorce Case

Thanks to Melissa Brown's Relieving The Divorce Client’s Angst, I got the idea of charting a simple divorce case.  A long hour or two with Corel's Presentations application and I came up with a 5 page PDf file.  I do not know how my chart compares with Ms. Brown's because I could not get her file to open. This is my Indiana divorce chart here:
Charting an Indiana Divorce

You might also want to take a look at my Indiana Divorce Manual.  It is online here.  It is a bit longer than the chart.

Relocation - Comparing Indiana, Florida and Illinois

And while I have been critical of Indiana's relocation statute for what I consider bad policy, I think we may be a bit better off than Illinois.

(750 ILCS 5/609) (from Ch. 40, par. 609)
Sec. 609. Leave to Remove Children.)
(a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.
(b) Before a minor child is temporarily removed from Illinois, the parent responsible for the removal shall inform the other parent, or the other parent's attorney, of the address and telephone number where the child may be reached during the period of temporary removal, and the date on which the child shall return to Illinois.
The State of Illinois retains jurisdiction when the minor child is absent from the State pursuant to this subsection.
(c) The court may not use the availability of electronic communication as a factor in support of a removal of a child by the custodial parent from Illinois.
(Source: P.A. 96‑331, eff. 1‑1‑10.)

Indiana's statute involves burden shifting:

IC 31-17-2.2-5
Motion to prevent relocation; burden of proof
Sec. 5. (a) Not later than sixty (60) days after receipt of the notice from the relocating individual under IC 31-14-13-10 or this chapter, a nonrelocating parent may file a motion seeking a temporary or permanent order to prevent the relocation of a child.
(b) On the request of either party, the court shall hold a full evidentiary hearing to grant or deny a relocation motion under subsection (a).
(c) The relocating individual has the burden of proof that the proposed relocation is made in good faith and for a legitimate reason.
(d) If the relocating individual meets the burden of proof under subsection (c), the burden shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child.
(e) If the nonrelocating parent fails to file a motion under subsection (a), the relocating individual who has custody of the child may relocate to the new residence.

I would also point out that Illinois does by statute what Indiana accomplishes in our Parenting Time Guidelines.

5. Emergency Notification. For emergency notification purposes, whenever a child travels out of the area with either parent, one of the following shall be provided to the other parent: An itinerary of travel dates, destinations, and places where the child or the traveling parent can be reached, or the name and telephone number of an available third person who knows where the child or parent may be located.

And there is this story from Florida: Parental Relocation: What a Florida Parent Hoping to Relocate Their Children Needs to Know in Advance.

Yes, the Indiana relocation statue does look a bit better when compared to elsewhere. That does not mean it is still the best we could have.

Shared Parenting - Ohio Style and Indiana Style

Here is another long gestating post. Robert Mues wrote a very long post on custody issues under The Legal Distinctions Between “Sole Custody” Versus “Shared Parenting”. He details the responsibilities of a parent with sole custody (read this folks, he does a very good job). He also sums up shared parenting time:

In a “shared parenting” situation, the parents should discuss and make mutual decisions regarding the foregoing issues as well as other important decisions which are in the best interest of the children.

Ideally, “shared parenting” certainly works best with parents who respect one another, communicate well, and who both wish to operate under a “shared parenting” arrangement. But not all Ohio Courts take such a narrow view. Some will order “shared parenting” believing it is still in the best interests of the kids even if the parents’ communications are fractured and one party opposes it! It is important to know the Judge’s philosophy on this issue.

In my last custody case, the judge splits the time between the mother and father for seven days on and seven days off. Quite a shocker but it may also confound some who think there is an anti-father bias. Afterward, the grounds were not clear: father lives about 15- 20 miles from the children, they have a step-brother who has the same schedule from their father's prior marriage, evidence showed the parties were not cooperating at all well, but this was what father wanted. Now the children are picked up between 6:30 pm and 7:00 pm from mother's residence and brought back in the morning in time to catch the school bus at 6:30 am. This is the first time that I have had a judge order this kind of custody arrangement. We had a different judge at the provisional hearing and he was quite clear about the untenability of a 50-50 split of custody.

I see Ohio's shared parenting the same as Indiana's joint custody. I have commented before (here and here and here) that I do not think joint custody works where the parties cannot cooperate. Mr. Mues' formula of "parents who respect one another, communicate well, and who both wish to operate under a “shared parenting” arrangement" has a far less evocative echo in Indiana Code 31-17-2-15(2)

whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare;

I can see a situation where the parties fight over the china but not about the children. Where the children are the subject of the fight, I do not see how joint custody is possible under either Mr. Mues' formula or IC 31-17-2-15(2). Anyone being able to explain this other than merely saying "I am the parent", please add a comment below. This reminds me of the discussion in some of the material I collected in More on Paternity Fraud between a daddy and a father.

Explaining Collaborative Divorce

My Should Indiana Have a Statute Promoting Collaborative Divorce? attracted some attention (ok, two people commented when the link was posted to Facebook). Trying to explain collaborative divorce in the little space on Facebook was probably not a good idea. Instead, let me refer everyone to articles from Laurie Israel and Steve Worrall. They do a much better job than I ever would.

Collaborative Practice: A Marriage to the Divorce

The transformative nature of the process is created by several features of Collaborative Practice. One of these is dealing with each other with truthfulness. This leads to a transparency in the Collaborative process that transforms what might have ended up in nastiness into something else - a final, magnanimous, clear-eyed parting of one relationship (spouses) and beginning of another (ex-spouses, co-parents)

Another feature that engenders a transformative result is the agreement not to litigate while in the Collaborative process. This is the so-called "Commitment Agreement", a legally-binding pledge to work out the terms of divorce within the Collaborative Practice team, without resorting to litigation. Yes — the parties (or either of them) can choose to "opt out" and litigate their case (with other attorneys) at any time. But generally they don't, and the case stays within the Collaborative process. As a result, the parties are provided with a sense of safety while they work out the practical and emotional issues relevant in their new circumstance of no longer being spouses. This is what Collaborative practitioners refer to as the "safe container" of Collaborative Practice. It is a net of safety that really works to let the parties work on their divorce with clarity and ease.

Within the container of the Collaborative process, the parties are able to discuss their divorce and the possible terms with freedom and truthfulness and in their own time. They are able and encouraged to express their own needs and fears. The Collaborative Practice team is there to assist them with knowledge about the technical aspects of divorce and to help in finding solutions. The team also assists in keeping the process from emotionally getting off-track.

Georgia Family Law Blog: Collaborative Law FAQ's

Collaborative family law is a new approach to dealing with separation and divorce issues that doesn't involve the courts. If you adopt this process you and your respective lawyers formally agree (i.e. sign a written agreement) to work together to find a mutually acceptable and fair solution to your financial and child related issues - without involving the courts.

Whenever I write about collaborative divorce, I always say this: there will be no change until the general public knows there is an alternative to an adversarial divorce. I still that is true.

Family Law Discovery: Depositions - Part 2

Having let a lot of time pass since I wrote Family Law Discovery: Depositions, I thought it time to finish off on depositions.  For a refresher on the discovery process go here.

Depositions remain generally rare and have been absolutely non-existent for family law cases.  I did one deposition about 1996 that was videotaped and I am not as convinced as Trial Practice Tips Weblog that videotaping a deposition is a trend.  That said, give a look at its post, Videotaped Depositions Become More Common: A Developing Trend?. If I had to, I think video would be the way to go.


Custody Coach's Deposition During Custody Battle also makes it sound as if depositions were very common.

It must be a factor of geography and economics.

More About Texting and Social Media, and Facebook Subpoenas

Dallas Divorce Law Blog uses Tiger Woods a springboard in A Divorce Lawyer's Take on Tiger's Texting Troubles

While it may not make the late night talk shows or celebrity gossip sites, texting frequently leads to big trouble for people who are not Tiger Woods. A text message with a paramour can reveal an extramarital affair to the unsuspecting spouse who accidently comes across it, or confirm the suspicions of a suspecting spouse who looks through their cheating spouse’s phone. After a divorce is filed, text messages provide powerful and often embarrassing evidence of infidelity by the cheating spouse during the marriage.

Yes, that means you. My clients bringing me text messages from spouses, former spouses, or former significant others keeps increasing each month. One client has a video on his phone of the mother behaving very badly while delivering the child to her for visitation. (Lucky for him he did this, as she called the police and the video probably saved him a trip to jail).

For more reading, go over to JD Supra and read Texting: The New Way to Get Caught Cheating.

Lawyerist has an interesting post in Update: Subpoena Facebook Information. Do not get too excited about this. For those with public pages, it does not keep an opposing party from downloading your whole page and using that for evidence.

Explaining first right of refusal for children in Indiana

Someone queried with "explain first right of refusal for children in Indiana" to get here,  I do not know why the query did not lead them to two posts I have here on the Indiana Parenting Time Guidelines' right of first refusal. Those articles are:

• Parenting time - Right of First Refusal 
• Following Up on ""Parenting time - Right of First Refusal"

The bottom line is this:  if non-custodial parent is available to watch the children while the custodial parent has to work, then the non-custodial parent has a right of first refusal to watch the children.  

How to petition for custody in Indiana

Some time back someone used the query "how to petition for custody indiana"  to find themselves to this blog. 

Assuming that the person was seeking to modify a previous Order on custody, then IC 31-17-2-3 controls.  That statute reads as follows:

Commencement of proceeding

Sec. 3. A child custody proceeding is commenced in the court by:

(1) a parent by filing a petition under IC 31-15-2-4, IC 31-15-3-4, or IC 31-16-2-3; or

(2) a person other than a parent by filing a petition seeking a determination of custody of the child.

As added by P.L.1-1997, SEC.9.IC 31-17-2-3

Which probably will leave two questions:  1) what court and 2) what is a petition?

The court will be the court that controls the case - where the person got the divorce or determined paternity. 

A petition is a piece of paper.  Everything in a court starts with a piece of paper.  Nothing in the Indiana Code prescribes the content of a custody petition but you can find a sample version here.

After preparing the petition, it must be filed with the court with a summons so that it can be delivered to the other parent.  After that comes setting a hearing and proving the case.

At some point, it may be a bit clearer what a lawyer brings to the table when trying to file a custody petition.  I do not think that anyone should try this without a lawyer.  If you find it all too much but are still worried about attorney fees, give my Announcing a New Service: Unbundling Legal Services a read,

Hiring A Family Law Attorney and The Art of War 2

Finishing what I started yesterday with Hiring A Family Law Attorney and The Art of War 1.

I want to point out what others have written quite well about on this subject. New Jersey Divorce & Family Law's In Family Law Representation, You Get What You Pay For… lead me to family law - family attorneys from LawyersandSettlements.com:

The bottom line is the fairness that so often escapes a family law case that is mishandled, at least by one of the sides, due to a lack of proper representation. Of course you want to be fair, and you like to think that the fairness factor will guide the process. But that is not always the case, especially when there is anger involved.

Experts suggest that if your relationship looks as though it is coming apart and you're considering divorce, the best couple of hundred bucks you'll ever spend is by sitting down with a reputable family law firm for a consultation. In an hour, their family attorneys can give you a pretty good idea of what you might be in for, what the dynamic, the payout and the cost, the likely custody arrangement, and in a nutshell what kind of life you're going to have at the end of it all. It may not be pretty, and after hearing the hard facts you might think twice about dissolving your relationship, and try to patch it up instead.

However if you feel you have to proceed, or you have an inkling that your spouse is—and it isn't possible to work it out amicably, then for heaven's sake get yourself a lawyer, and get a good one.

California Divorce and Family Law's has Picking the right divorce lawyer can help make the split less painful ten items to look for in a divorce lawyer, and what I would call an overarching theme:

Having the right attorney can alleviate some of the emotional sting and reduce some of the stress which are integral parts of the divorce process. Conversely, having the wrong kind of legal representation, can make an already painful experience significantly worse for you and for your loved ones.

Mississippi Family Law Mediation and Counseling Blog's Before you hire an attorney --- What you need to know has a similar list. About getting the most out of your lawyer, give my Following up on How to Hire the Right Divorce Attorney a read.

It is my goal that I handle every case in as professional manner as possible. I think that means counseling and fighting are not mutually incompatible in representing my client's best interests. I think Family Lawyer – Choosing a Competent Family Lawyer! from Northeastern Law expands on this point very well:

Since cases of child custody are very sensitive, you must be vigilant to choose an experienced and competent child custody lawyer. A good lawyer who can handle the issue carefully and also be able to negotiate skillfully should be your priority. If your case is straight, you can get look for a family lawyer who would charge a low fee but if your case is complicated and requires intricate planning and strong presentation make sure you choose a well-known and experienced lawyer

Know your goals, communicate those goals to your lawyer, and understand why not all goals are achievable. (Getting the other side's head on a pike may be a goal but not an achievable one.) Then decide if there is a good fit between you and the lawyer's strategy.

Child Support: Overpaying

Coming to you from Arkansas by way of Florida Divorce * Child Custody * Domestic Violence Law Lawyer is Husband Notices Overpayments Garnished From Wages After a Couple of Years and Then Tries to Get Credit for Overpayments, But Court Rules They’re Voluntary Payments Due to Husband’s Prolonged Negligence. Guess what Hoosiers - same story here gets the same result.

Arkansas trial court enters temporary order establishing child support and alimony obligations.

Husband pays via wage garnishment.

Final judgment actually reduces total support obligation by over $600 per month.

Husband does not take steps to have new garnishment order entered and served on his employer. (This would be Husband’s responsibility.)

Husband’s wages continue to be garnished at the higher level of the temporary support order.

Husband apparently does not notice that he is overpaying for a couple of years.

Once Husband notices a couple of years later, Husband seeks to receive credit against future payments equal to the amount of his past overpayments.

Trial court rules against Husband, concluding that it was Husband’s responsibility to pay attention to how much he is paying relative to how much he is required to pay and ruling that the overpayments are voluntary.

It would certainly seem that Husband was able to make the higher temporary support payments without undue hardship motivating him to carefully review the garnishment records.

Moral of Case: wake up and get with it.

Hiring A Family Law Attorney and The Art of War 1

DIVORCE LAW INDIANA published a post, Hiring a divorce lawyer: Rambo v. Mother Theresa,that I generally agree with but also with which I have some serious quibbles about. In particular, I have a problem with this paragraph and particularly one word in this paragraph:

In a study of attorneys, social psychologist Kennth Kressel found that divorce attorneys seem to fall primarily within two broad groups. He labled them the "advocates" and the "counselors". Some call these two approaches as the "Rambo" and the "Mother Theresa" approaches to divorce law.

The word troubling me is "primarily". My contracts professor had a category for these sort of words: weasel words. Since most of the original article depends on this dichotomy between litigator and counselor, I think this needs discussing as if "primarily" were not in that paragraph.

I think the lawyer must be adaptable to the type of case and client they have in front of them. In some cases litigating willy-nilly makes mountains out of molehills. I think everyone will agree that is wasteful. If you think you are better served by such a lawyer, then ask how this benefits you because there will be times (many times) during the course of a contested case that you will also need a counselor.

I think my New Albany colleagues recognize this point also:

Your personality and your situation will dicate the type of divorce attorney you feel comfortable hiring. Remember that about 50 percent in a recent study were unhappy with their attorneys. Basically the best divorce attorney is one who has a good deal of experience in contested divorces and who has knowledge of the court rules. You should avoid an attorney who never goes to court or one who wants to litigate everything without encouraging good-faith negotiations.

I came to the viewpoint I have from reading Sun Tzu's Art of War. I have written along these lines before with Divorce, Strategy and Sun Tzu. I also wrote on this in Thoughts on Strategy, Preventive Law, Rambo Lawyers and Sun Tzu that can be found on my Indiana Civl & Business Law Blog.

Others invoked The Art of War when discussing litigation. Deception and Settlement: The Application of Sun Tzu's Ancient Strategies of War to the Law which makes this point:

Sun Tzu advises against this purposeless destruction. Each of the steps taken in a lawsuit should have a goal of encouraging settlement, albeit on your terms. This goal should be at the forefront whenever discovery is taken, motions are filed, and meetings with the opposition are held. This may not assure that fees and costs will be limited. Rather, it means that when money must be spent, it should be to encourage resolution of the matter. If it does not, then one should consider choosing a more effective course.

Although not written from the standpoint of a family law case, I think the principles are easily transferred from a lawsuit to a family law case. With the point being that strategy needs to meet the needs of the case and of the client for a successful case. I read The importance of an attorney in child custody litigation from Divorce Indiana Bog and Maryland Divorce Legal Crier's Every Dog that Barks as implying this same point.

Family law does not lend itself well to total war. Sun Tzu did not favor total war - it ruined both sides of the conflict. I wonder if most people when thinking of litigation as war do not think of the conflict as total war. If so, I suggest following the link to total war and then look at your bank account and then consider what life will be like after the case is over. Here is an image to think of when thinking about total war. In cases with children, the effects of a total war stragety will go on for a very, very long time.

There needs a time for counseling and a time for fighting. I think counsel needs the capacity to do both.

I will finish this topic off tomorrow. Please come back for the finish.

What About Electronic/Online Parenting Time in Indiana

I have written before on this (Parenting Time - Alternate Means) but I ran across Electronic Communication as Parental Visitation? from Family Law Prof and thought it worth writing on again. Seems Illinois has passed a law with the following provision:

Illinois General Assembly - Illinois Compiled Statutes

(2) "Electronic communication" means time that a parent spends with his or her child during which the child is not in the parent's actual physical custody, but which is facilitated by the use of communication tools such as the telephone, electronic mail, instant messaging, video conferencing or other wired or wireless technologies via the Internet, or another medium of communication.

Although that the Indiana Parenting Guidelines predate the explosion of Internet communications other than e-mail, I do not think there is anything in the following that does not include the same things as Illinois' statute. I do not think we need a statute (but might be something to think about

A. COMMUNICATIONS

1.Between Parents. Parents shall at all times keep each other advised of their home and work addresses and telephone numbers. Notice of any change in this information shall be given to the other parent in writing. All communications concerning a child shall be conducted between the parents. Any communication shall occur at reasonable times and places unless circumstances require otherwise. A child shall not be used to exchange documents or financial information between parents.

2. With A Child Generally. A child and a parent shall be entitled to private communications without interference from the other parent. A child shall never be used by one parent to spy or report on the other. Each parent shall encourage the child to respect and love the other parent. Parents shall at all times avoid speaking negatively about each other in or near the presence of the child, and they shall firmly discourage such conduct by relatives or friends.

3. With A Child By Telephone. Both parents shall have reasonable phone access to their child at all times. Telephone communication with the child by either parent to the residence where the child is located shall be conducted at reasonable hours, shall be of reasonable duration, and at reasonable intervals, without interference from the other parent.

If a parent uses an answering machine, voice mail or a pager, messages left for a child shall be promptly communicated to the child and the call returned.

I should also add that the Guidelines set out the minimum - there is no reason that the parties cannot agree to include other communication media as part of parenting time.

Fayette County: CHILD SUPPORT GUIDELINES

 While hewing very close to the Indiana Child Support Guidelines, Fayette County has some interesting wrinkles in how its judges handle child support issues in its Local Rule 21-FL00-FL-5 ( CHILD SUPPORT GUIDELINES).

What I find most intriguing comes in this, the first paragraph of the Local Rule:

In all proceedings involving child support, including any petition to emancipate where there is more than one child, each party shall file with any settlement, or submit to the Court at the time a petition is filed, one or more Indiana Child Support Guidelines worksheets with supporting documentation.  A response Child Support Worksheet with supporting documents shall be provided to the other party or to opposing counsel as the case may be, at least forty-eight (48) hours prior to the provisional hearing, unless reasonable circumstances prevent doing so and then such Child Support Worksheet shall be provided to the other party or opposing counsel at the earliest opportunity. Child Support Worksheets shall be promptly supplemented if changes occur prior to trial. Child Support Worksheets intended to be introduced at trial or final hearing shall be exchanged by the parties or counsel at least seven (7) days prior to trial.

If I understand the first sentence correctly, a Child Support Worksheet is required to be attached to a petition when filed.  How is the moving party to know for certain the other party's income when filing?  If the petition being filed is a Petition for Dissolution of Marriage, that information should be readily available.  If the petition is one for modifying support or custody, having accurate income information seems problematic.  Which explains the sentence allowing prompt supplementing before trial.  Assuming the worst but not the utterly worst scenario, Petitioner's counsel will have prepared two versions of the Child Support Worksheet.

With the rush that I have seen in the run up to a provisional hearing, I am not surprised at the escape clause for the 48 exchange prior to a provisional hearing.

All that said, I am wondering at the benefit of having a Child Support Worksheet attached to the petition at time of filing.  It does make sure that the Worksheet is prepared at the earliest possible date.  It may be worth using elsewhere.

Not much in this paragraph that is not in the Child Support Guideline 3 regarding deviations except its brevity:

If an agreement concerning support provides any deviation from the Guidelines, the parties shall present to the Court a written explanation, with supporting documentation, justifying the deviation. The proposed Order shall specifically state that the Court is deviating from the Child Support Guidelines and set forth the reasons for such deviation.

The concluding paragraph has nothing to do with the Child Support Guidelines and all with income withholding orders.  I know this is a trend in many courts - often enough without the benefit of a Local Rule. 

In all proceedings involving child support, an Income Withholding Order shall be submitted with any Settlement Agreement or Final Decree pursuant to Indiana Code 31-16-15-1 or the parties shall:  Submit a written agreement providing for an alternative child support arrangement; or provide within the proposed Decree that “the Court determines that good cause exists not to require immediate income withholding” and stating the specific reasons therefore.

Something for Dad's to Think About - Family Life or Work?

Generally I do not note press releases on here but I am making an exception for New Research Claims Fathers Choose Family Life Over Work. Maybe American fathers should be asking why we do not have these kind of proposals here:

PR Log (Press Release) – Dec 02, 2009 – This comes at a time where concerns have been expressed about an alleged worsening of the work-life balance in the UK. Indeed, the Equality and Human Rights Commission (EHRC) suggests that the majority of working dads are not happy with their current work-life balance, with as many as two in three fathers stating that they need to spend more time caring for their children. The report also found that more than six out of ten fathers work more than 40 hours a week.

Earlier this year, the organisation introduced proposals for a 10-year-plan, in a bid to further encourage equal rights when it comes to maternity and paternity leave. One such proposal included an additional four months of parental leave, after the mother’s initial six months leave, which either parent could take, with at least eight weeks at 90 per-cent pay.

Thinking About the Financial Issues of a Divorce

Thanks to New Jersey Family Issues for its Divorce is around the corner — how do you protect your financial interests while your marriage dissolves and pointing me to The New York Times' Financial Decisions to Make as You Divorce.

So this week, I assembled that list, with help from readers and members of the Institute for Divorce Financial Analysts. The institute certifies financial planners and other professionals who specialize in helping people whose marriages have ended.

You may be willing to pay any price to remove yourself from a toxic marriage with the least amount of haggling. Many more of you, however, are probably seeking an equitable split, but have no idea what to budget for or evaluate.

So this list is a place to start. Please post additions to it in the comments with the related post on the Bucks blog.

Give the whole article a good read, please.

Missouri Divorce & Family Law Blog also published a post on financial issues -  The Financial Aspects of Divorce: Why It usually IS "All About The Money":

...There are so many financial aspects of divorce that have to be balanced that if parties aren’t careful, they can end up in a big money mess. Here are a few of the big ones:

1.       2 households instead of one: Before a couple or family divorces, they live in one residence with one set of bills and expenses, paid by however much money the couple/parents bring in. Upon divorce, the same level of income still exists, but now there are two mortgages/rent, two sets of utilities, two sets of grocery bills, two car payments, relocation expenses, first and last month’s rent, and so on. Basically, double or so the expenses on the same income.  It is not hard to see how difficult this is in and of itself.

2.       Debts. These days, many families are just a paycheck or two away from real trouble with credit cards and other unsecured debts, and if there are significant debts involved in the divorce, a real challenge exists. Sure the court can divide the debts and assign liability to each spouse, but it doesn’t do much good if the net marital estate is significantly reduced or eliminated by the debt. A divorce is a separation of financial livelihoods, and when possible, it is a good idea to use assets in the marital estate to reduce or eliminate debt before dividing assets. The less debt after the divorce the better for both parties, even if on paper one spouse is supposed to be responsible for it. It is a future fight or bankruptcy filing waiting to happen.

3.       Child Support: Quite simply, nobody is happy with it. If you have to pay it, it is going to be perceived to be too much, and if you are receiving it, it is perceived to not be enough.  In Missouri child support is largely a mathematical calculation based on incomes and other expenses, and to some degree it is what it is.   But regardless, it another factor affecting the same level of income pre-divorce, and it will never make a party “whole” or maintain a pre-divorce standard of living.

4.       Maintenance: Although there is no mathematical formula the same holds true as does for child support, it is probably both too much and not enough,  and it is still going to have to come out of the same pot of money.  Unless the parties are very well off financially to begin with, to expect the same standard of living pre-divorce is usually unrealistic. Although appropriate in some cases of long marriage, large disparities in income, or other factors, maintenance in Missouri is awarded in a small percentage of cases.

5.       Health Insurance: Regardless of your politics on the issue, health insurance is expensive and upon divorce usually a former spouse cannot remain on the other spouse’s health insurance. So, unless both parties can get affordable health insurance, if such a thing exists, then this can be a big financial factor that likely may only have a handful of undesirable solutions.

6.       Attorney fees and case costs: On top of all of this, the divorce is a direct expense in terms of attorney fees and costs associated with the case. If the case is contested, then the total cost on the family is the sum of both spouses total investment in the case. Attorney fees are not usually awarded, which is all the more reason to try to approach the case in an informed and rational way, and try to keep costs and conflict down. The higher the conflict, the higher the cost every single time.

Missouri Divorce & Family Law Blog gives some good advice at the end, people "be smart and rational about how to separate financially and view their situation in a realistic way."

I am intrigued about Divorce Shield's message - even if  I do not feel comfortable recommending the site to clients.  That may be a quirk of my personality - I do not have the same reaction to Dollars of Divorce (on Twitter here).  Another site to look at for information is:  Faggio Financial.

Using an accountant and your lawyer ought to get the same result, but I leave that decision to you.  The thing is do something!

Thinking of Filing Bankruptcy After a Divorce? Read This!

Thanks to a tweet from Jay Fleischman on Sunday I ran across You Mean My X-Wife Will Find Out About My Bankruptcy?. I decided it might benefit my readers. Go read the whole post, but the points that jumped out to me are:

If there’s an alimony or child support obligation, the former spouse will get notice of the bankruptcy—even if the support obligations are current. And if there are debts which the debtor has been ordered to pay for which the former spouse is jointly liable, the former spouse must also get notice as a co-debtor.

I always tell my clients to plan on the former spouse getting a copy of their bankruptcy schedules and reading every words on those schedules. This isn’t because I think my clients are liars; it’s because even an innocent, inadvertent omission will look very bad if the former spouse reports the omission to the trustee.

***

Even more so than with “normal” cases, I would suggest that those of you who are divorced should make absolutely certain that all your income, expenses, assets, and liabilities—along with all other information—are completely accurate. Go slow, and be thorough. Don’t leave anything out.

See, there are family law attorneys who will go into the bankruptcy court to keep non-dischargeable debts from being discharged. (Give my What happens when your former spouse files bankruptcy on a marital debt? a read on that subject). Best practice is not to play games with the bankruptcy court.