Sam Hasler's Indiana Divorce & Family Law Blog

For Those Using Free Forms From The Internet

2010-03-21T16:36:00.003-05:00

Be careful of what you get. I have said this before but not quite as well as Wiggin & Nourie, P.A. does with its Is LegalZoom Legal?

"I think that people generally have a tendency to underestimate the work that goes into the preparation of an estate plan, it requires a great deal more than simply printing off forms. LegalZoom and other such services reinforce the opinion that estate planning may easily be accomplished by generating simple forms, but if you are considering the use of such services, you should look closely at the service provider's disclaimer. You will likely see, as in the case of LegalZoom, that the service provider is not serving as your attorney, does not review the documents you prepare for legal sufficiency and does not guarantee that the documents are correct. Preparing estate planning documents without the benefit of a legal opinion may result in unintended consequences that may be costly to correct in the future. In my experience, the vast majority of clients engage in estate planning to gain a sense of reassurance that their family will be cared for after their death in the manner that the client thinks is most appropriate, to pay for documents to be prepared without receiving the benefit of legal advice may undermine the entire purpose of the planning in the first place."

While the topic of their post is estate planning, everything there applies to family law and every other area of the law.

Prenuptial Agreements Are Good For Family Businesses

2010-03-20T07:03:00.000-05:00

If you have a family business then read the following from The Williston Herald, Family roles play a part in farm operation, succession A family death brings questions about new roles:

"To help deal with in-laws, Hanson is now a firm believer in prenuptial marriage agreements.

'It's just good business management,' he said, while admitting there are two points of view on the matter.

The first point is from the view of the in-law, who wants to know why she/he should have to sign such a document in the first place, especially if that person helps work the operation.

To address this point, Hanson said to ask the in-law to think of what the family has done to build the business.

'The only way this farm will ever be successful is if this farm stays as a unit. If this farm is divided, sold, split off, no one wins,' Hanson said.

If a prenuptial agreement is done fairly, no one ever gets upset. In talking about the reasons behind the prenuptial agreement and its overall purpose, the new family member should understand and feel he/she has been treated fairly, he said.

Hanson is also a firm believer in prenuptial agreements for anyone entering a second marriage.

'If you think children have trouble settling an estate, wait until you have stepchildren,' he said."

If you need a lawyer for a prenuptial agreement, please give me a call.

Why Estate Planning?

2010-03-19T07:03:00.000-05:00

Give Allinotte Law Office's Do you want to deal with this now or let your family deal with it later? a read. I think the article points out a few things not usually thought of when thinking of estate planning. Both the things needing planned (such as a funeral trust) and why which I think the article sums up quite well here:

The family will be shaken by the death of a loved one. In the immediate after math, and possibly even before death, there would be decisions that would have to be made.

If you are wanting to talk about estate planning, please give my office a call.

Are You Ready To Co-Parent?

2010-03-18T07:03:00.000-05:00

I have had a run of shared parenting issues lately. So when reading Make Smart Choices for Post-Divorce Co-Parenting Success I had those issues in mind. I am going to suggest that the following paragraphs add content and texture to the idea of shared parenting as much as splitting time. So I ask this: if you want shared parenting time, do you think you and the other parent are up to this kind of behavior?

Create routine co-parent check-ins:

The more co-parents communicate with one another about the children, the less likely for small issues to grow into major problems. Select days/times for phone, email or in-person visits. Discuss in advance visitation transfer agreements. List who’s responsible for what each day, week or month. Food, homework, curfews, health issues, allowances, school transportation, sport activities, play dates, holiday plans and more should be clearly agreed upon, when possible – or scheduled for further discussion. Once you have a clear parenting plan structured – follow it to the best of your ability. But allow for last-minute changes and special “favors” to facilitate cooperation.

Encourage your child’s co-parent relationship:

Regardless of your personal feelings about your ex, your children need a healthy connection with their other parent. Keep snide comments to yourself and don’t discuss your parenting frustrations with your children. Encourage your kids to maintain a caring, respectful relationship with their other parent. Remind them about Mom or Dad’s birthday and holiday gifts. Make time in the weekly schedule for phone calls, cards, email and letters to keep the children’s connection alive when your co-parent is at a distance. Your children will thank you when they grow up.

Be compassionate with your in-laws:

Remember that a Grandparent’s love doesn’t stop after divorce. If your children had a healthy bond with your former spouse’s extended family, don’t punish them by severing that connection. Children thrive on family attachments, holiday get-togethers and traditions they’ve come to love. Grandparents, aunts, uncles and cousins can be a great source of comfort to children during stressful times and a sense of continuity with the past. Dissolving those relationships is hurtful to both your children and the other family. Think long and hard before making such an emotionally damaging decision.

Above all, be flexible. When you allow calls from your co-parent when the kids are in your home, they will be more receptive to your calls when the tables are turned. Remember, you are still a parenting team working on behalf of your children. That commonality should enable you to overlook the thorns in your co-parenting relationship and focus on the flowering buds that are the children you are raising.

If your answer is yes, then think seriously about joint and/or shared custody.

If not and you are the one wanting shared parenting, then ask yourself why are you seeking shared parenting?

What is Mediation - And When Can It Help

2010-03-17T07:03:00.001-05:00

With some counties pushing mediation as prerequisite to ever seeing a courtroom, I getting asked more questions about mediation and articles like What is Mediation do a good job of explaining the process. I suggest following the link and reading the whole as well as my excerpts

Divorce mediation is about you and your soon to be ex-spouse deciding your own divorce and what is best for the both of you and most importantly, your children. In mediation, you and your spouse meet with a neutral third party, the mediator, and with their help, you work through the issues you need to resolve so the two of you can end your marriage as amicably and cost effective as possible.
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In mediation, the couple, with the help of the mediator, works out agreements on the above issues. Sometimes agreements come easy, sometimes they take time and a lot of work. When agreements are hard to reach, that is when the mediator intervenes. It is the mediators job to keep the lines of communication open, brainstorm ideas, reality test the couple, teach empathy and assist the couple in their decision making process. Mediators help keep the couple focused on the issues at hand, trying not to get them off track. When divorcing couples get off track and away from the above issues during mediation, arguing, name-calling and bad prior memories are brought up.

I do have a long-standing philosophical problem with mediation. Cases exist where no amount of persuasion will lead to a change of positions. In those cases the need exists for a person to say that this or that will be done by the parties. Those people we call judges. Therein also lies the basic difference between mediation and litigation.

I do have a criticism to make - which may describe more the difference between Indiana and Illinois rather than any error by the writer - of this paragraph:

In 2008, the average mediated case cost $3000 and was settled in 90 days. In turn, the average litigated case in the courts cost $15,000 and took 18 months to settle. Keep in mind, the litigated cases led to more spite and frustration between the divorcing couples, usually leading to a lose/lose situation for both. Not many people walk away from a litigated divorce feeling satisfied. On the other hand, couples who went through mediation felt satisfied with the agreements they had reached and both walked away feeling that they had gotten what they had wanted. Who would you rather have decide what happens with your children and assets after a divorce, you during mediation or attorneys and judges during a divorce in the courts? Who knows more about you, attorneys, judges or you? Why have people who know nothing about you tell you how you are going to live the rest of your life.

My criticisms are:

I know Indiana has does not have any statistics on the costs of litigation versus mediation but I cannot think that the average in Illinois greatly higher than Indiana - or what I am billing!
Do read this paragraph with the assumption that a lawyer can be done away with if you do mediation. Unless the parties prepare the necessary petitions and waivers, there is still the need for a lawyer.

Another Post On How To Avoid Litigation

2010-03-16T07:03:00.000-05:00

Pay attention to 10 things your children will thank you for from Woolley and Co. Solicitors:

1. Keeping arguments away from them and avoid criticism of the other parent.
2. Being able to talk to the other parent about their needs (even though it may be hard sometimes)
3. Allowing them to miss the other parent and make contact when they want to, even encouraging contact when you think they might want it.
4. Recognise they have feelings which might be confusing and contradictory.
5. Ask them what they think and listen to what they say (but do not make them responsible for decisions)
6. Value them as developing people with their own friends and networks
7. Remember they can cope with different rules so long as they know what to expect in each household.
8. Be consistent about arrangements made and not letting them down
9. Be flexible to their changing needs.
10. KNOWING THEY LOVE YOU BOTH AND WANT TO BE ABLE TO EXPRESS THEIR LOVE

I am going to suggest that the parent who cannot do these 10 things ought not be thinking of joint or shared custody.

Writing the Property Settlement - Make Sure You Cover Everything

2010-03-15T07:03:00.000-05:00

Ah, forgetting to ask all the questions worries me. The problem of the unasked question has a tendency of coming back to haunt - if not to bite. For those of you thinking of doing your own divorce (or legal separation) agreements, I give you this paragraph from WOLSHIRE v. WOLSHIRE, 905 NE 2d 1051 (Ind Court of Appeals 2009) and suggest that you think long on it:

We reach the same conclusion with regard to the trial court's division of Husband's future military retirement benefits. Generally, a spouse's military retirement benefits are a marital asset subject to division. See, e.g., Griffin v. Griffin, 872 N.E.2d 653 (Ind.Ct.App.2007). Here, however, the parties entered an agreement that made no mention of Husband's benefits. When asked about this omission during the final hearing, Wife stated, "It simply did not come up as we were putting together this agreement. It was an oversight." (Tr. p. 20). As noted above, a trial court reviewing a settlement agreement "should concern itself only with fraud, duress, and other imperfections of consent, or with manifest inequities, particularly those deriving from great disparities in bargaining power." Pond, 700 N.E.2d at 1136. A mere oversight does not rise to this level. We instruct the trial court, on remand, to remove the provision concerning Husband's military retirement benefits from the decree of dissolution.

Indiana Legal Separation Becoming a Divorce Case With a Post-Nuptial Agreement

2010-03-14T07:54:00.001-05:00

And a good example why to hire a lawyer. Such is Beaman v. Beaman, 844 NE 2d 525 (Ind: Court of Appeals 2006).

First, the case demonstrates - to me - why few legal separation case are filed or go on for very long. Notice how easily the parties slipped from a separation case a dissolution case (and see what I wrote here).

Now about why this case explains why hiring a lawyer is a Good Idea:

At the outset, we address the tangled procedural irregularities in this case. As recited above, Eric filed the petition for dissolution in this case, Ramona filed a cross-petition two weeks later, the trial court summarily entered a dissolution decree just ten days after that without a hearing, and Eric effectively filed a motion to reconsider one week later. We conclude the trial court acted too hastily in entering the dissolution decree. Indiana Code Section 31-15-2-13 permits a trial court to enter a summary dissolution decree without a hearing "[a]t least sixty (60) days after a petition is filed in an action for dissolution of marriage" if both parties have filed a written and signed waiver of final hearing, and filed either a written settlement agreement or a statement that there are no contested issues in the case.[1]

Granted, the parties in this case had filed a purported written "waiver of final hearing" when they jointly petitioned for legal separation. However, there was no dissolution action pending at that time and, therefore, there was no dissolution hearing to be waived. Eric's subsequent petition for dissolution, which was not joined by Ramona, did not contain a written waiver of a final hearing. It does not appear that the pre-dissolution proceeding "waiver of final hearing" should necessarily have been deemed a waiver of a dissolution final hearing, especially where Eric's dissolution petition made no mention of that waiver and did not request summary dissolution.

Procedurally, the parties make a complete mess of the case - which means they increased their stress and probably did not have the outcome that they thought was coming to them.

As part of their legal separation, there was a property settlement agreement. Dealing with the property settlement agreement became the big question.

Turning to the merits, our first guidepost in this case is Pond v. Pond, 700 N.E.2d 1130 (Ind.1998). There, the Indiana Supreme Court discussed the difference between "reconciliation agreements" and "dissolution settlements." Id. 530 at 1132. The former are agreements (referred to as prenuptial, premarital, or antenuptial agreements) entered into in contemplation of marriage or its continuance and that generally must be enforced as written in the event of dissolution. Id. The latter are agreements entered into as a consequence of dissolution proceedings (post-nuptial agreements); they are governed by the Indiana Dissolution of Marriage Act ("the Act"), and their acceptance or rejection is within the trial court's discretion.[2] Id.

The Court of Appeals treated the agreement created as part of the legal separation case as a post-nuptial divorce agreement.

Our review of Pond and the record in this case leads us to the clear conclusion that the agreement between Eric and Ramona that they signed on November 24, 2004, was a post-nuptial, not antenuptial, agreement. Although no dissolution action was pending at the time, the agreement was filed contemporaneously with a request for legal separation. Additionally, although the agreement provides that the parties would not necessarily commence dissolution proceedings, there is nothing in the record to suggest that the parties entered into this agreement for purposes of maintaining their marriage. To the contrary, the agreement itself reflects that the parties had already divided up much of their personal property, including their vehicles, prior to their separation. There is nothing in the record to suggest that the parties actually attempted any reconciliation following the signing of this agreement; instead, Eric, in fact, did file a petition for dissolution just three months later. The facts here are very similar to Pond, and we reach the same conclusion: the parties' agreement is governed by the Act. As such, the trial court had the discretion, under Indiana Code Section 31-15-2-17, to accept or reject the agreement. See Pond, 700 N.E.2d at 1132.

I suggest that any legal separation agreement be written with the probability that it will become a post-nuptial agreement in a divorce.

Thinking About Custody Issues

2010-03-13T07:03:00.001-05:00

Recently I had a long telephone call with another lawyer who is on the side of me in two different custody cases. We were discussing why my clients were opposed to a shared parenting agreement. After finally clearing out that it was not my views driving the cases but my clients, I think we agreed to two things: 1) we execute our client's goals so long as they do not put us into unethical territory, and 2) there is no good definition of joint and/or shared parenting. Otherwise, we may have agreed that those parents sharing parental duties will share custody after a divorce.

We remained pretty much divided on the issue of shared parenting - me on grounds of practicality and he on grounds of theory. Or so, I will put it.

I did not mention such things as the following from Fuchs v. Martin, 836 NE 2d 1049 (Ind Court of Appeals 2005)

Dr. Grana, who was one of the two custody evaluators in this case, testified:
So that I ended up with the feeling that not much has changed in the sense of their awareness. Their awareness that change begins with them and that they have to demonstrate a willingness to act differently. More cooperatively. More courteously with one another. And so the issue was still, you know, one of custody. And my feeling was that neither one had convinced me that they deserved the role of sole custodial parent. There was still a lot of instability and immaturity ... And I was wanting to continue with some type of liberal visitation because I think that, you know, I couldn't see a reason why both parents should not be involved with their daughter .... but I was most concerned about trying to build a structure that would help them get through the next bunch of years. And that's why I was recommending some type of mental health intervention. That seemed to me to be more important than the label of custody. So that they could have some avenue for building some type of co-parenting structure that would be effective for them. And so that's why I made a recommendation for liberal visitation. No change in custody. And try to get them involved in the mental health system.

Within that paragraph I see the points that I look at when evaluating a custody case:

The parents ability to cooperate and work together.
The maturity of both parents.
The stability of both parents.
The involvement of both parents in their children's lives.
What sort of co-parenting structure there is (by the way, that is a great phrase and concept)

Then there is also this paragraph that contains a lot of truth and states a few reasons why I think that a presumption of shared parenting is a bad idea:

(Tr. at 103.) In addition, he noted "high conflict couples will do battle with sole custody just as often as they will with joint custody," (id. at 105), and "liberal involvement still is important for [T.F.]." (Id.) He was also concerned that giving one parent sole custody would give "the sole custodial parent the belief or endors[e] their belief that the other parent is a bad parent." (Id. at 107.) In his report, he recommended "[Mother]'s residence be considered the primary residence for [T.F.]." (Exhibits, Respondent's Exhibit B at 11.) That evidence supports Findings L and DD, and portions of Finding FF.

Those that fight will fight. Presuming and/or awarding joint custody based on the idea that this will reduce conflict and free up court time is sheer laziness unless backed up by the facts of each case.

On the other hand, that second sentence highlights a problem that needs addressing by lawyers and courts. Under Indiana law, custody between parents does not require that one parent be unfit. Custody between parents is about the determining the custody that is in the best interests of the children. I am not sure how many lawyers explain that to their clients or how well. Courts will not usually take the time to make the point. Perhaps if we did, then maybe there would less fighting between joint and sole custody. It would not change the issue in my two cases mentioned above.

I will go further and say that any parent who uses any form of custody - joint, shared or sole - to bully the other parent ought not have custody of their children. Not for the sake of punishing that parent or rewarding the other parent, but because anyone using a custody proceeding to bully, to control, the other parent is not acting in their child's best interests.

Living Together & Breaking Up - Comparing Indiana With Scotland

2010-03-12T09:11:00.001-05:00

Reading Breaking up is hard to do financially for cohabiting couples from Scotsman.com Business once again brings to mind how disadvantaged those Hoosiers who live together without getting married are compared with other places.

First of all there is no legislation in Indiana protecting the property rights of those cohabitating. Hit the link below for my archived articles on cohabitation for more details.

So everything in these three paragraphs describes a protection that unmarried Hoosiers lack:

The act provides for the sharing of household goods purchased during the period the couple lived together. However, this does not include gifts or any items that you or your partner have inherited from a third party. If a decision cannot be reached, then the law presumes that items are owned jointly by the couple, with goods shared or the value shared.

Money, securities, any car or other vehicles or pets you have are not regarded as household goods under this legislation.

Both partners are also entitled to an equal share of any money derived from any allowance made by either cohabitant for their joint household expenses and/or any property acquired out of that money."

With the General Assembly done with creating new legislation this year, there will be no statute for cohabitants this year. With the continued pushing for an anti-"gay marriage" constitutional amendment to our Indiana Bill of Rights, I suspect a serious opposition to any protection for the property of unmarried couples in Indiana. That does not mean those interested in this subject should not contact their state Representatives and Senators.

Without legislation and you want to live together, then you have three choices:

Get a cohabitation agreement; or
Plan on litigation; or
Eat your losses and move on down the line.

Military Service, Jurisdiction and A New Case from The Court of Appeals

2010-03-11T09:02:00.000-05:00

Having discussed jurisdiction and service in Got to Have Service on the Other Side and More on Got to Have Service on the Other Side, let me bring up a recent Indiana Court of Appeals case In re: the marriage of Anthony J. Harris v. Teasha J. Harris. Thanks to a lack of personal jurisdiction, the case had to start over.

And before anyone gets overly excited, the case turns on the fact that the husband was on active military duty in Germany and wife failed to comply with the Solider and Sailor's Relief Act and so will not translate easily to a wide range of cases.

The case does bear reading for military service issues. I seem to be having an increase of cases involving service members and the case serves as a good reminder that a different set of rules apply to active duty members of the Armed Services.

The Indiana Lawyer noted the case here: Trial court didn t have personal jurisdiction over serviceman.

Case law - Marital Property Titled to Someone Else

2010-03-10T07:03:00.001-05:00

Krstin Nicevski v. Greta Nicevski was decided last year on July 9. My apologies for the delay in writing this one up - put it down to the turmoil of last Summer and Fall. However, the case points out something important and so I am going ahead on write on the case.

The Indiana Court of Appeals opinion sets out the issue quite well:

Appellant-respondent Krstin Nicevski appeals from the decree of dissolution of his marriage to appellee-petitioner Greta Nicevski. Krstin argues that the trial court erred by including the value of a residence titled in his parents' name in the marital estate and directing him, among other things, to pay Greta $40,000, or half of the value of the residence. Finding that the trial court was without authority to include the residence in the marital estate because Krstin's parents were not joined as necessary nonparties pursuant to Indiana Trial Rule 7(B), we reverse and remand with instructions to revise the decree of dissolution consistently with this opinion.

Note that the property held by the parents is not automatically removed from the possibility of being included in the marital pot, but there was procedural and evidence problems in including the parents' property in this marital pot.

The Nicevski Court relied upon In re Marriage of Dall, 681 NE 2d 718 (1997) and Indiana Trial Rule 7(B). Trial Rule 7(B) reads as follows:

Motions and other papers. Unless made during a hearing or trial, or otherwise ordered by the court, an application to the court for an order shall be made by written motion. The motion shall state the grounds therefor and the relief or order sought. The requirement of notice is satisfied by service of the motion.

Vadas v. Vadas, 762 NE 2d 1234 (Ind. Supreme Court 2002) provides more on this point and about Dall:

The Court of Appeals reversed, holding that "an equitable interest in real property titled in a third-party, although claimed by one or both of the divorcing parties, should not be included in the marital estate." Id. at 722. Although the couple "may have hoped eventually to acquire legal title to 1236 the property ... they did not have a definite agreement that title would be transferred to them." Id. at 721 (distinguishing Sovern v. Sovern, 535 N.E.2d 563 (Ind.Ct. App.1989), where "the owners of record title disclaimed any interest in the real estate."). Therefore, in Dall, "neither Husband nor Wife possessed the definite interest necessary for the home to be included in the marital estate." 681 N.E.2d at 721.

The holding of Dall promotes predictability, consistency and efficiency by excluding "remote and speculative" interests from the marital estate. See 681 N.E.2d at 722. The property at issue here is just such a speculative interest. Rita's investment and James' labor increased the home's value during the marriage, but general market conditions before and after the marriage would also account for some part of the appreciation. (R. at 146-47, 279, 284.) The sale to James and Rita was to occur at some unspecified future date, contingent upon James' getting back "on his feet" financially. (R. at 144.) Neither price nor terms had been discussed, although John wanted to recover what he put into the property (unlike the record owner in Sovern, who did not claim any interest in the property in question). (R. at 147.)

If property is titled to another, is there evidence showing that the property should be included in the marital estate?

In Re Marriage of England v. England gives an idea of how to answer that question:

Husband contends that his interest in the Rumpke property is akin to those in Loeb and Fiste that were excluded from the marital pot. He contends that his interest is completely defeasible and that he has no present interest of possessory value. We disagree. To the extent Husband's interest in the property is defeasible, he for the most part controls the defeasance. In Loeb and Fiste, the defeasance would occur because of an act over which the remaindermen had no control — death or a change in beneficiary. Here, Husband loses his interest in the property if he abandons the property, ceases to use it as his primary residence, or opposes Rumpke's plans to expand its landfill, all of which are choices Husband would make of his own accord.[1] Husband also loses his interest if both dwellings on the property are destroyed or become uninhabitable. Although it is true, as Husband points out, that the dwellings could be destroyed by fire or weather tomorrow, it is also true that they may never be destroyed and Husband will live on the property virtually rent-free for the remainder of his life. Finally, Husband also loses his interest when he dies, but in that case, it is possible he may have enjoyed the use of the property for a nominal rent up to the time of his death. See Hacker, 659 N.E.2d at 1111 (noting that husband was "correct in asserting that there are no guarantees he will be granted continued residence [on a farm owned by his parents, but] [c]onversely, he may also be allowed to live there rent-free for the remainder of his life" and therefore, the trial court did not err in considering husband's continued use and occupancy of the farm in dividing the marital assets).

In addition to this situation being unlike Loeb and Fiste because here, Husband controls the defeasance, this case is also unlike Loeb and Fiste because those cases dealt with future interests. Here, Husband presently has a possessory interest in the property for his use and enjoyment. Husband is able to live on the property, farm the land, and cut the timber. The fact that the property is available for Husband's continued use and occupancy at a minimal yearly rent is relevant under Indiana Code section 31-15-7-5(c) as an economic circumstance of the parties and the trial court did not abuse its discretion in considering this interest in dividing the marital estate.

More on Got to Have Service on the Other Side

2010-03-09T07:02:00.002-05:00

I have to make a comment about a recent case of mine and Indiana Trial Rule 4(E). Adding this to Got to Have Service on the Other Side seemed to make the earlier post a bit too long.

This part of Rule 4 reads as follows:

(E) Summons and Complaint Served Together--Exceptions. The summons and complaint shall be served together unless otherwise ordered by the court. When service of summons is made by publication, the complaint shall not be published. When jurisdiction over a party is dependent upon service of process by publication or by his appearance, summons and complaint shall be deemed to have been served at the end of the day of last required publication in the case of service by publication, and at the time of appearance in jurisdiction acquired by appearance. Whenever the summons and complaint are not served or published together, the summons shall contain the full, unabbreviated title of the case.

Back in January, I had an opposing attorney try to dismiss a paternity complaint on the grounds that their client had never gotten a summons. Opposing counsel would have been on much better ground but for a couple of things:

There had not been an emergency hearing about 10 days before;
That prior to the emergency hearing, his client had been handed a copy of the paternity petition; and
Our local rules on emergency hearings follow the rules for temporary restraining orders, and those rules had been complied

Opposing counsel lost his motion to dismiss. It would have been better that a summons had been issued after the emergency hearing just as it might have been a shorter argument if I had remember Trial Rule 4(A) and (E). After all, the opposing party had appeared and the court had acquired jurisdiction by virtue of her appearance.

Parenting Time - Illinois Video Visitation in Action

2010-03-08T07:02:00.001-05:00

I mentioned Illinois' new video visitation statute in What About Electronic/Online Parenting Time in Indiana. Now from pressofAtlanticCity.com comes

Divorced parents keep in contact with their children via video phone calls that gives a pretty positive view of what is going on in Illinois.

CHICAGO - Greg Baddick helped his 9-year-old daughter learn the state capitals of the Midwest. Later, when he asked Isabella how her test went, she said she got an A-plus - although she almost forgot the answer for Nebraska.

"Congratulations," Baddick said via an Internet video link, the same way he helped her study. "I'm proud of you."

Because Baddick, a senior manager for a pharmaceutical company, is divorced from Isabella's mother, he helped his daughter study using their laptop computers and the Internet. The virtual visits are a weekly date for the pair, in addition to the in-person weekly visits and twice monthly weekend stays. Isabella lives in Elgin, Ill., Baddick in Chicago.

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Chicago family law attorney Jeffery Leving, who said he helped write and lobby for the changes to the law, said he hopes the changes help noncustodial fathers and open up opportunities for children to be in contact with incarcerated fathers.

"The electronic visitation - primarily the cell phone and now the computer - in my opinion, is a psychological lifeline for the child," said Leving, whose firm specializes in fathers' rights.

Bruce Boyer, director of the Loyola Civitas ChildLaw Clinic, said virtual visitation has been helpful in custody cases involving parents who are great distances from each other or in cases where a parent should not have physical proximity to his or her children but would still like to visit and have a relationship.

But, he cautioned, virtual visits should not take the place of in-person interaction whenever safe and possible.

"It's a lesser alternative to face-to-face contact," Boyer said. "If you don't have a better alternative, it can be a very good way of maintaining contact."

Baddick and Isabella's mother divorced in 2003, and the father recalls the emptiness he felt when he first drove away from the family home. His daughter, he said, also remembers.

"It was horrible. It took me a while to get over it," he said. "I struggled for years and years."

But then the father and daughter adjusted, and in recent years, they discovered virtual visitation. In the Baddicks' case, the visits aren't part of an official custody agreement, but rather worked out informally between Isabella's parents.

Isabella likes the video phone.

"It's really cool that you get to talk to your dad and see him," she said.

I have written about alternate means of visiting with the children in Parenting Time - Alternate Means. Between that article and my post on Illinois mentioned above, I think I have made it clear that I think nothing Indiana law prohibits electronic/Internet visitation.

Nothing specifically endorses the idea either. Right now I think a party wanting this sort of visitation needs to specifically request the court include Internet visitation in its parenting time orders.

It is my understanding that with the Indiana Parenting Time Guidelines now being under review, it will be proposed for a specific provision similar to Illinois. I have to wonder how many people this will help (I think I still have a lot of clients who do not have Internet access and of those who do I am not sure if they have the equipment to accommodate video exchanges), and so I am asking these questions:

What do you think Indiana should include Internet visitation in the Parenting Guidelines?
Do you have the computer system to visit by video link?
Does the other parent have the computer system to visit by video link?
How many of you will be willing to acquire a computer system and/or Internet connection that will enable video links?

A Slightly Different Family Law Blog

2010-03-07T16:13:00.000-05:00

A quick shout out to an Indonesian family law blog - Islamic Family Law in Indonesia. Interesting to see how a completely alien legal system operates. And how some of the topics never change - money and trying to understand just what was the legislature thinking (or if it was). Yes, it is apparent that English is not the writer's first language but that makes his exposition even more impressive to me (a good deal more understandable than an Order or two that I have seen in the past month from Indiana judges).

Thoughts on Preventing Problems Between Parents

2010-03-07T10:14:00.001-05:00

I have not mentioned in what seems a long time how you people have the means to prevent spending unnecessary time in a courtroom. Put plainly, being a jerk results more often than not in a visit to the lawyer and probably to a courtroom.

If you want to prevent problems, read the following from The Mother of All Parenting Blogs (and you might want to check out the rest of the blog, too).

Don't assume that the problem will take care of itself once the baby is no longer a baby, the toddler is no longer a toddler, etc. You've still got a lot of years of parenting ahead of you -- and you definitely want to be on the same page of the parenting playbook by the time your kids hit the preteen or teen stage.

Try to engage your partner in a heart-to-heart discussion about the hopes and dreams that led you to want to become parents in the first place: the types of parents you want to be and the types of kids you want to raise. If you've never had this type of conversation, there's no time like the present to have it. Try to have this conversation when you're both relaxed and in a positive and upbeat mood. If you can't have this type of conversation without the conversation dissolving into an argument, consider couples therapy (so that you can work on your communication skills and resolve the outstanding issues you have as parents and as a couple).

Consider taking a parenting course together. That way, the information you're trying to discuss with your partner will be reaching your partner via a neutral third-party rather than always being filtered through you.

Share parenting materials that you've found particularly helpful. And encourage your partner to share parenting materials that express his or her ideas about parenting, too. (You don't have to agree with all the viewpoints expressed. What you're trying to do is get an understanding of what your partner is thinking and feeling about a particular issue. That's the first step to talking the issue through and finding some common ground.)

Take stock of all the things you do agree about rather than just focusing on all the things you don't. Then find ways to build on that common foundation in your lives as parents.

More importantly, ask yourself how following this advice hurts you or your children.

Remaining Family Law Legislation for This Year's General Assembly

2010-03-06T11:14:00.000-05:00

I culled the following list from The Indiana Lawyer Capitol Watch newsletter of the remaining legislation pending in this year's General Assembly. I have not had time to double check the list or what changes exist from earlier stages of the legislative process. But I am providing links to the Bills so that you cna check them out.

Family Law
SB 140 - Various adoption matters including prohibiting a man who is barred from establishing paternity under the adoption statutes from establishing paternity by filing an action as a next friend of the child or requesting a prosecuting attorney to file a paternity action. Status: Ready for enrollment

SB 163 - Requires persons who own or operate a river boat licensed as a gambling operation or a horse racetrack licensed for gambling to withhold cash winnings of obligors for amounts they are delinquent in child support and deduct and retain an administrative fee in relation to withholding the obligor's delinquent child support. Makes other provisions. Status: Ready for enrollment

SB 178 - Provides that if a paternity affidavit is executed, the mother has primary physical custody of the child. Requires an action to establish custody or parenting time of a party who has agreed to share joint legal custody on a paternity affidavit be tried de novo. Status: Ready for enrollment

Got to Have Service on the Other Side

2010-03-06T07:02:00.000-05:00

The Indiana Lawyer's COA rules on service of summons issues does not report on a family law case, this is subject still needing attention.

Gohl filed his motion arguing the judgment against him was void for lack of service of process. The Court of Appeals judges agreed and reversed, finding the trial court didn't have personal jurisdiction over Gohl when it rendered the default judgment against him. Colonial failed to specifically comply with T.R. 4.13 as it pertained to effecting service of process of publication against Gohl, and it didn't perform a diligent search to determine Gohl's whereabouts. The company relied on one search that turned up a B. Gohl on the opposite end of the state from what county was listed on the mortgage. The Court of Appeals remanded with instructions for the trial court to grant Gohl's motion.
***
The service of summons on the Elliotts didn't follow T.R. 4.1 because the sheriff who served a copy of the foreclosure action at the house didn't also send a copy by first-class mail. The appellate court didn't rule on the issue of whether it was improper because it had found in the Elliotts' favor based on other reasoning. But the judges did caution practitioners, trial courts, and law enforcement personnel to be mindful of the requirements of Trial Rule 4.1(B).

No service, then no further proceedings until there is service.

Why not? Because proceeding would violate federal and state constitutional rights. At a minimum, due process requires notice and a chance to be heard by a court.

Indiana Trial Rule 4 explains a bit more the importance of service:

(A) Jurisdiction Over Parties or Persons--In General. The court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under any other law.

This part of Trial Rule 4 sets out what the summons is to have in it:

(C) Form of summons. The summons shall contain:

(1) The name and address of the person on whom the service is to be effected;

(2) The name, street address, and telephone number of the court and the cause number assigned to the case;

(3) The title of the case as shown by the complaint, but, if there are multiple parties, the title may be shortened to include only the first named plaintiff and defendant with an appropriate indication that there are additional parties;

(4) The name, address, and telephone number of the attorney for the person seeking service;

(5) The time within which these rules require the person being served to respond, and a clear statement that in case of his failure to do so, judgment by default may be rendered against him for the relief demanded in the complaint.
The summons may also contain any additional information which will facilitate proper service.

For those interested in doing their own documents, check with your local County Clerk for forms.

Indiana has 17 rules on service (follow the links to Trial Rule 4.1(B) and Trial Rule 4.13 as mentioned above). I think that pretty much describes the importance of service.

Grandparent's Visitation - Latest Case from The Court of Appeals

2010-03-05T07:02:00.000-05:00

Paternal grandmother files for grandparent visitation after her son kills child's mother. Father voluntarily terminates his parental rights. What happens to grandmother's visitation?

In VISITATION OF CRP v. JJP, the Indiana Court of Appeals decided that grandmother lacked any standing for grandparent visitation. No standing means no case.

Here is the Court of Appeals' reasoning:

Grandparents must have standing as prescribed under the GVA in order to seek visitation rights. Maser, 809 N.E.2d at 432 (citations omitted). The primary purpose of standing is to ensure that the party before the court has a substantive right to enforce the claim being made. In re J.D.G., 756 N.E.2d 509, 511 (Ind. Ct. App. 2001). If the grandparent lacks standing, then the petition must be dismissed as a matter of law. Id.

The GVA was enacted in derogation of the common law and must be strictly construed. In re Visitation of J.P.H., 709 N.E.2d 44, 46 (Ind. Ct. App. 1999). In construing a statute, statutes in pari materia should also be considered together to effectuate legislative intent. Horn v. Hendrickson, 824 N.E.2d 690, 698 (Ind. Ct. App. 2005); In re Visitation of J.P.H., 709 N.E.2d at 46.
***
As noted by the trial court, when read together, the statutes provide that a parent of the child's parent may seek visitation rights if the child's parent is deceased. The "child's parent" referred to in code section 31-17-5-1 is the same person as the "child's parent" referred to in code section 31-9-2-77. Therefore, the GVA confers standing only upon grandparents who are the parents of the deceased parent of the child. Here, Grandmother is not the parent of the child's deceased parent, and she does not have standing under the statute to seek visitation. The trial court did not err when it dismissed Grandmother's petition.

Another reminder that for Grandparent Visitation, there must be a strict compliance with the statute. The courts will not provide any leeway.

The Indiana Lawyer noted this case under the headline COA: Only deceased s parent can have visitation.

Islamic Prenuptial Agreements - A Case Out of Washington

2010-03-03T07:03:00.000-05:00

The Google Alerts blurb caught my eye and I spent some time yesterday evening reading IN RE MARRIAGE OF OBAIDI.

Here are some of the facts:

Ms. Obaidi and Mr. Qayoum were married for approximately 13 months. At the time of the marriage, Ms. Obaidi was 19 and Mr. Qayoum was 26. Mr. Qayoum is a United States citizen and has lived in the United States since he was three. Ms. Obaidi is from Canada.
The parties are both children of Afghan immigrants and the couple was married according to Afghan custom. As part of these customs, the parties signed a "mahr" agreement during an engagement or Nikkah ceremony held on December 30, 2005. The Nikkah ceremony is a religious ceremony that is similar to a wedding reception at a typical Christian wedding. At some point during the Nikkah ceremony, Ms. Obaidi and Mr. Qayoum, along with a small group of family and friends, went into a smaller room. Verses from the Koran were read and Ms. Obaidi and Mr. Qayoum each swore to take the other as his or her spouse. As part of the ceremony, the parties signed the mahr.
A mahr is an agreement based on Islamic law under which a husband agrees to pay a dowry to his wife. Generally, there is a short-term portion and a long-term portion. The short-term portion is due immediately. The long-term portion is the amount that the wife is entitled to take with her in the event of a divorce. In the mahr at issue here, the short-term portion was $100 and the long-term portion was $20,000.
The Nikkah ceremony was conducted in Farsi, except when Mr. Aji-sab, who performed the ceremony, asked Mr. Qayoum if he wanted to marry Ms. Obaidi. Mr. Qayoum does not speak, read, or write Farsi. Mr. Qayoum has lived in the United States for all but two or three years of his life.He considers himself "American first." Report of Proceedings at 107. He explained that he went through the Afghan marriage process because his mother was concerned that he would lose even the small amount of cultural knowledge he had about Afghanistan.
Mr. Qayoum testified that he had never heard the word "mahr" before the day of the Nikkah ceremony. He acknowledged that he had previously attended a couple of receptions, but he stated that he was unfamiliar with the Nikkah ceremony. According to Mr. Qayoum, he was not informed of the Nikkah ceremony until 10 or 15 minutes before the event took place. At some point, Mr. Qayoum selected an uncle to act as his representative during the discussions that took place as part of the Nikkah ceremony.

Here is some of the Washington Court of Appeals' analysis:

A New Jersey case, Odatalla v. Odatalla, 355 N.J. Super. Ct. Ch. Div. 305, 309, 810 A.2d 93 (2002), provides a helpful framework for considering the application of state law to a mahr agreement. In Odatalla, the trial court ordered the specific performance of the mahr agreement. The husband appealed, arguing that review of the mahr by a state court was precluded under the doctrine of separation of church and state. The husband also argued that the agreement was not a valid contract under New Jersey law. Id.

The Odatalla court looked for guidance to Jones v. Wolf, 443 U.S. 595, 602-03, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979), which explained the "neutral principles of law" approach that allows agreements to be enforced based on neutral principles of law, not religious doctrine. In Jones, a dispute over the ownership of church property was taken to a civil court in Georgia. The court set aside the separation of church and state issues by applying the neutral principles of law doctrine. Justice Blackmun explained, "We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even when no issue of doctrinal controversy is involved." Id. at 605. In other words, the court determined that the controversy over the ownership of the property could be decided on neutral principles of law, not upon religious beliefs or policies. Id.
Based on Jones, the Odatalla court determined that the mahr did not violate the separation of church and state doctrine if the court could apply neutral principles of law to the enforce the mahr. Odatalla, 355 N.J. Super. Ct. Ch. Div. at 311. The court concluded that the mahr could be enforced by applying neutral principles of contract law. Id. at 312. Notably, the court found all the elements of a contract even though the husband argued that the mahr was too vague to apply because it did not state when the money would be due. Id. at 313. Because the court determined that the mahr was simply a contract between two consenting adults, the court concluded that the mahr was not against public policy. Id. at 314.
Here, we apply neutral principles of Washington law. However, the trial court found the wife was not abused, not unfaithful, and did not do anything to create a forfeiture of the mahr under Islamic law. The trial court also found that the husband was not unfaithful, but that he had initiated the separation without good cause.Consequently, the court erred by considering Islamic law or fault.
Applying the neutral principles of contract law, we can resolve this case by using these neutral principles of law, not Islamic beliefs or policies. We apply Washington law to resolve the issues of the formation and validity of the agreement.

And this appellate court hit on the issue that bothered me from the first paragraph of the opinion and which I think would apply here in Indiana:

The negotiations preceding the execution of the agreement were conducted in Farsi. Also, the document was written in Farsi which Mr. Qayoum does not read, write, or speak. Mr. Qayoum did not have the opportunity to consult with counsel although he was advised by his uncle, who is neither an attorney nor an expert in Islamic law, after the agreement was signed. Because Mr. Qayoum could not speak, write, or read Farsi, there was no meeting of the minds as to the terms of the mahr agreement.

Just as with any prenuptial agreement, handing the prenup to the other person just before the wedding is going to lead to an invalid agreement. But putting the agreement into a foreign language that the recipient cannot read? Not a good idea at all.

Coming Soon to An Indiana Supreme Court Near You

2010-03-02T09:54:00.004-05:00

Way too quiet this morning. Secretary is not in and spent some time catching up on e-mail. I am beginning to think that catching up on e-mail is akin to the hamster actually getting somewhere when its runs on its wheel.

But The Indiana Lawyer Update did bring news of cases being transferred from the Indiana Court of Appeals to the Indiana Supreme Court and included this one:

Anne M. Bingley v. Charles B. Bingley, No. 02S03-1002-CV-122, the Court of Appeals ruled for the first time that post-retirement health-insurance premiums paid by a former employer aren't a marital asset subject to a division. The trial court didn't include Charles Bingley's employer-paid, post-retirement health-insurance premiums when dividing the couple's assets during the dissolution process.

Anne Bingley argued the payments fall under subsection 2 of Indiana Code Section 31-9-2-98(b), as a retirement benefit not forfeited upon the termination of employment, and cited several Indiana cases that found pension benefits to be marital assets. But the Court of Appeals ruled the premiums weren't a marital asset subject to division. The cases Anne cited involved monthly monetary payments made directly to the pension-holding spouse; Charles' benefit wasn't payable to him but was non-elective and couldn't be divided or transferred, wrote Judge Elaine Brown.

In his concurring opinion, Judge Terry Crone encouraged the Indiana General Assembly to address a perceived ambiguity in the definition of "retirement benefits" and "vested" in terms of the Internal Revenue Code.

The Mediation Channel Blog

2010-03-02T07:03:00.001-05:00

Just found The Mediation Channel Blog on March 1 and I am intrigued by its style and its content. Not another dreary, look-alike blog for sure.

Two posts that I notice that might interest my readers were The cost of conflict: what happens when we frame divorce as combat which was cited in Zero sum game show: celebrities decide who’s right or wrong in The Marriage Ref. (And, no, I did not take the time to watch The Marriage Ref last night. I troubled my wife's patience enough watching curling.)

From The cost of conflict: what happens when we frame divorce as combat:

It made me wonder what shlep and Levine would make of a new book on divorce for women by attorney Sherri Donovan: Hit Him Where It Hurts: The Take-No-Prisoners Guide to Divorce–Alimony, Custody, Child Support, and More.

The pugilistic theme doesn’t end with the title: the book jacket is adorned with a photo of a blood-red boxing glove. Chapters include “Are You Ready to Rumble?”, “Divorce Ain’t for Sissies”, “Sizing Up Your Opponent”, “Conditioning for the Fight of Your Life”, and “Psyching Up for the Fight”.

It should leave us all asking what kind of casualties result when divorce is framed as either prizefight or combat.

Personally, I hate either/or scenarios. They do exist, sometimes they are unavoidable but the majority of either/or situations show either a lack of imagination or intellig

This comes from Zero sum game show:

Now, stepping into the marital fray is comedian Jerry Seinfeld, who will be hosting “The Marriage Ref“, a game/reality TV show in which bickering couples will submit their disputes to nonbinding arbitration before celebrity guests who will “comment, judge and decide who’s right and who’s wrong in real-life disputes between real-life spouses.”

Of course if you’d rather resolve your dispute anonymously, try the web site Sidetaker (“Let The World Decide Who’s At Fault”) and let the hive be the judge.

Useful and well written (like I wish I had thought to quote from the United States Poet Laureate), but may not be for the general public as much as other mediators. Give it a look.

News - Child Support and Casino Winnings

2010-03-01T16:30:00.001-05:00

I reported on this Indiana legislation here. A bit of follow up here from The Anderson Herald Bulletin Indiana House backs taking deadbeat parents' winnings

The bill approved unanimously Thursday would withhold gambling winnings from parents who are behind on their child support payments. Supporters say it makes sense in a state where just 58 percent of child support payments are collected.

***

The withholdings would generally kick in on slot machine winnings of $1,200 or more.

The bill must return to the Senate for consideration of changes the House made.

An English Idea To Pay Attention To: Collaborative Prenups

2010-02-28T07:03:00.000-05:00

From Family Law Week comes Collaborative prenuptial agreements find favour

According to The Law Society’s Gazette, a rising number of clients contemplating marriage are asking for prenuptial agreements to be prepared using the collaborative law model. The report records a shift in attitude among clients who would prefer to adopt a more consensual approach to agreeing a pre-nuptial agreement rather than employ the more traditional, oppositional method of negotiation.

News - Indiana Paternity Affidavits

2010-02-27T13:00:00.000-05:00

Checking the e-mail this morning, I noticed an update on the paternity affidavit Bill making its way through the Indiana General Assembly (SB 0178)(which I have written about here). This comes from the notice i received:

This bill does the following:

1. Permits parents to agree (via separate signature area on the paternity affidavit) to joint legal custody of their child
2. Requires that “under age” (under age 18) parents be counseled by a parent or guardian re: the significance (rights and responsibilities) of signing a paternity affidavit;
3. Extends the time that fathers who are out of the country (such as military) have to acknowledge paternity from 3 days to 10 days before their rights can be terminated and the child placed for adoption;
4. Grants immediate access of the father to the child according to the minimum reasonable frequency and duration according to the Indiana Parenting Time Guidelines that were developed and approved by the Indiana Supreme Court in 2003 (and which are presently beginning their first-ever review NOW);
5. Requires a DNA test to be provided to the Department of Health within 30 days (it will probably be increased to 60 days in Committee) to prove the father’s biological relationship with the child. If the DNA test refutes the biological relationship, the paternity affidavit is voided. The reason for this is that a study has estimated that 27% of those men signing paternity affidavits are not the biological father. Men may still choose to adopt a child who is not biologically “theirs”, but at least that will now more likely be a conscious decision.

I really like and must endorse the requirement for DNA tests. See my articles here and here and here for why I endorse this idea.

Indiana Divorce - What Is a Child of The Marriage?

2010-02-27T11:03:00.000-05:00

Something here that we lawyers might take for granted but seems to elude non-lawyers. Children from an earlier marriage or relationship are not included as children of the present marriage - even if they are living with you and your spouse.

Something trickier occurs when a question arises as to whether the husband is the father of the wife's child. The Indiana Supreme Court took on this problem in Russell v. Russell, 682 NE 2d 513 (1997):

Before the dissolution court may make a child custody or support determination, it must first determine whether it has jurisdiction to do so, i.e., whether the child at issue is a "child of the marriage." The definition of child of the marriage is spelled out 516 in Ind.Code § 31-1-11.5-2(c)[4]:

The term `child' means a child or children of both parties to the marriage and includes children born out of wedlock to the parties as well as children born or adopted during the marriage of the parties.

The Court of Appeals concluded that the trial court had jurisdiction to enter a custody order regarding the children because they were children of the marriage under the Court's reading of Ind.Code § 31-1-11.5-2(c). Because wife contended that husband was not the biological father of J.R., there was a dispute as to whether J.R. was a child of the marriage. The Court of Appeals concluded that J.R. fell within the definition of a child of the marriage, regardless of whether husband or Griffith was J.R.'s biological father. In so concluding, the Court explicitly disagreed with the interpretation given to the statutory definition of "child of the marriage" by two other panels of the Court of Appeals in R.D.S. v. S.L.S, 402 N.E.2d 30 (Ind.Ct.App.1980), and Friar v. Taylor, 545 N.E.2d 599 (Ind.Ct.App.1989).

***

We are thus faced with a conflict between the Court of Appeals' interpretation of the definition of "child" in R.D.S. and Friar and in this case.[6] As a matter of grammar, we conclude that the R.D.S. and Friar decisions are correct. Foremost Life Ins. Co. v.Dept. of Ins., 274 Ind. 181, 409 N.E.2d 1092, 1096 517 (1980); Evansville v. Zirkelbach, 662 N.E.2d 651, 653 (Ind.Ct.App.1996), trans. denied (in determining legislative intent, it is appropriate to look at grammatical structure of language in statute). Applying rules of parallel construction, we conclude that the legislature meant to define a single jurisdictional category, children of both parties, and clarified this definition by explaining that it does not matter whether such children are born before or after the parties are married. The definition of "child" contains a phrase and two clauses: (i) "a child or children of both parties to the marriage;" (ii) "children born out of wedlock to the parties;" and (iii) "children born or adopted during the marriage of the parties." Here the legislature used the compound subject, "child or children," in the phrase but only the single subject, "children," in the two clauses; the clauses are parallel to each other. If the legislature had intended to create two separate jurisdictional categories, children of both parties and children born during the marriage, as the Court of Appeals concluded in this case, we believe the legislature would have made the phrase and second clause parallel to each other by using the same subject in the first and third clauses of the sentence. See General Serv. Emp. Union Local No. 73 v. N.L.R.B., 578 F.2d 361, 368 (D.C.Cir.1978) (court looked at parallel structure of statute to determine its meaning). See also Heaslip v. Freeman, 511 N.W.2d 21, 23 (Minn.Ct.App.1994), review denied ("The factor that tips the balance and makes it more likely that the words create only two types of privilege rather than three is the parallel construction of two of the elements....").

We, like the Court of Appeals panels in R.D.S. and Friar, read the statute to say that this one group includes children born out of wedlock as well as children born or adopted during the marriage—as long as both parties are the natural parents (or adopted the child).[7]

Okay, so children of the marriage means children where husband and wife are the parents. What if husband suspects he is not the father?

The inquiry into whether a child is a child of the marriage is a determination by the dissolution court of who the child's parents are for purposes of custody, visitation and support. See generally Ind.Code § 31-1-11.5-2 (definition of child);[8] §§ 31-1-11.5-12 through 15 (support);[9] §§ 31-1-11.5-20 through 23 (custody);[10] §§ 31-1-11.5-24 through 26 (visitation).[11] In paternity proceedings, the inquiry is whether a particular man is the child's biological father. Ind.Code §§ 31-6-6.1-1 through 10.[12] If so, similar determinations as to support, custody and visitation are made. See generally Ind. Code §§ 31-6-6.1-10 through 16.[13]
The Court of Appeals in this case took the position that becauseInd.Code § 31-6-2-1.1(a)(3) provides that the juvenile court has"exclusive original jurisdiction" in "proceedings 518 concerning the paternity of a child," the dissolution court may not make a determination of paternity. Russell, 666 N.E.2d at 948.
***
We decline to give this subject extensive treatment, both because it is unnecessary to the central issue on appeal here—custody—and because the law in this area is likely to change dramatically in the very near future in the wake of federal and state welfare reform. Paul K. Legler, "The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act," 30 Fam.L.Q. 519, 527-538 (1996).[14] However, we do present some broad considerations.
In many cases, the parties to the dissolution will stipulate or otherwise explicitly or implicitly agree that the child is a child of the marriage. In such cases, although the dissolution court does not identify the child's biological father, the determination is the legal equivalent of a paternity determination in the sense that the parties to the dissolution—the divorcing husband and wife—will be precluded from later challenging that determination, except in extraordinary circumstances. See Fairrow v. Fairrow, 559 N.E.2d 597, 600 (Ind.1990) (husband entitled to relief from support judgment only in event that "the gene testing results which gave rise to the prima facie case for relief in this situation became available independently of court action."). However, a child or a putative father is not precluded by the dissolution court's finding from filing a separate action in juvenile court to establish paternity at a later time. See J.W.L. by J.L.M v. A.J.P., 682 N.E.2d 519 (Ind.1997) (child); K.S. v. R.S., 669 N.E.2d 399 (Ind.1996) (putative father); In re S.R.I., 602 N.E.2d 1014 (Ind.1992) (putative father).
In other cases, the issue of whether child is a child of the marriage may be vigorously contested. In such cases, the dissolution court has the authority to follow appropriate procedures for making paternity determinations. See Cooper v. Cooper, 608 N.E.2d 1386 (Ind.Ct.App.1993)
(dissolution court has authority to order blood testing during dissolution proceeding to determine biological father). When a dissolution court makes its determination as to whether the child is or is not a child of the marriage under such circumstances and based upon and consistent with the results of the blood or genetic testing, such a determination, (i) in addition to having the preclusive effect on the divorcing husband and wife described in the preceding paragraph, (ii) will constitute a determination in all but the most extraordinary circumstances that the divorcing husband is or is not the biological father of the child, precluding a child, putative father, or other person from challenging that determination in subsequent or collateral proceedings.
There will also be cases like the one before us where the divorcing husband and wifewill attempt to stipulate or otherwise agree that a child is not a child of the marriage. While we disagree with the Court of Appeals when it says that a dissolution court is without jurisdiction to approve such agreements, we certainly believe that it is well within the discretion of the trial court to withhold approval until paternity has been established in another man. See In re Marriage of K.E.V., 883 P.2d 1246 (Mont.1994) (court applied equitable estoppel to prevent mother from denying paternity of husband where mother was not seeking to establish paternity in another man; court reiterated that the holding would not bar biological father or child from establishing paternity in father). In this regard, we generally agree with the Court of Appeals in this case in concluding that L.D.H. was wrongly decided, at least to the extent that L.D.H. stands for the proposition that paternity actions filed in juvenile court collateral to pending dissolution actions are always improper. In fact, such actions may be the only way in which to establish the paternity of a man other than divorcing husband so as to satisfy the dissolution court that the child is not a child of the marriage and permit the divorce to proceed.[15]

In re Marriage of Huss, 888 NE 2d 1238 (2008) gave the Indiana Court of Appeals a chance to discuss what happens when a mother files a paternity action in another county than where the husband had filed his divorce case. I noted this case here.

How To Approach The Prenuptial Agreement Idea

2010-02-26T07:03:00.002-05:00

Esther Schonfeld wrote what I think is perfectly sensible way to approach prenuptial agreements:

While not an antidote to a difficult divorce, a prenuptial agreement certainly can make divorce less painful. I often describe prenups as insurance policies that protect against a protracted and brutal divorce proceeding. Prenuptial agreements provide a realistic alternative to a messy divorce by allowing both spouses to determine their own financial fates at the outset of the marriage. Difficult as it may be to discuss money and the possibility of divorce before the marriage has even commenced, doing so can sometimes prevent a considerable amount of future heartache.

New Indiana Court of Appeals Case - Grandparent Visitation and Step-Parent Adoption

2010-02-25T20:00:00.001-05:00

From today's Indiana Lawyer came COA: inequity in grandparent visitation act

A.B. and N.E. opposed L.D's adoption; the trial court granted some visitation to N.E. before the adoption was finalized. Once the adoption petition was granted, the paternal grandparents told N.E. they planned to phase out visitation with her.

The mother and N.E. appealed several issues, including N.E.'s rights to visitation as a grandparent. But based on the language of the act, her visitation can't continue now that the child has been adopted, the Court of Appeals concluded. The act provides that visitation rights survive adoption by a stepparent or person who is biologically related to the child. Since the paternal grandparents aren't biologically related to L.D., N.E. isn't entitled to visitations as a matter of law under the act, wrote Judge Edward Najam.

In addition, if N.E. had been the one to adopt the boy, then the paternal grandparents wouldn't have had any rights under the act because N.E. isn't biologically related to the boy.

"Whether this consequence was intended or should be rectified we leave for the Legislature to decide," wrote the judge.

I am actually a bit more interested in the due process issue raised as I really do not think this factual situation will be common.

More importantly, it shows how legislation and litigation interplay with one another. I doubt many in Indiana's General Assembly imagined the factual situation of the litigation when they voted on the legislation.

So You Think Common-Law Marriage Will Protect You?

2010-02-25T09:12:00.002-05:00

Since I keep getting surprised by people who think Indiana permits common law marriage (as well as other states), I offer Common-Law Marriage: A Nineteenth-Century Relic with Continuing Relevance:

"But here's the hitch: Common-law marriage is not allowed in most states today. During the middle of the Nineteenth Century, most states permitted common-law marriage. By 1931, however, only half the states still allowed common-law marriage. Today, that number is down to nine (plus the District of Columbia).

There are different possible explanations for the rise and fall of common-law marriage. In the Nineteenth Century, it functioned to validate marriages where some technical requirement was not met, and to make marriage available to those without ready access to clergy or a license. It also legitimated relationships in an era when non-marital sex was not only taboo, but often a crime."

If you want to live together, the only way to protect your property is to get a cohabitation agreement. Without a cohabitation agreement, relying on the courts is expensive and risky. With a cohabitation agreement in hand lessens the cost and riskiness of litigation.

Or as put by Sarasota Personal Injury Lawyer in Married Versus Cohabiting Couples:

Couples who are not married but live together can create a cohabiting agreement. This will protect both parties by recording whose assets are whose and any shared assets so that a decision can be made about the division of the assets if the couple were to break up. It will also determine which party will be responsible for things such as children or bills. Couples can record anything in these agreements, but generally homes, monetary assets, and children are recorded.

Couples will need to understand that the family laws for married couples and cohabiting couples are very different and play a big role in what happens upon a split up.

No, I cannot recommend that you not use a lawyer in writing up a cohabitation agreement. I think Personal Money Store explains quite well why not in Cohabitation Agreements Protect Unmarried Couples

When should an agreement be drafted and why is an attorney necessary?

It is generally recommended that a couple enter into a written cohabitation before moving in together. Committing an agreement to writing before cohabiting allows couples to clearly identify their financial boundaries, expectations, and future plans for wealth creation. Although anyone can draft any kind of an agreement for him or herself without legal assistance,it is not recommended that couples draft cohabitation agreements themselves.

When unwed couples separate and lawsuits ensue, cohabitation agreements that were not drafted by attorneys are frequently held to be invalid or unenforceable. Often this is because the agreements were so poorly drafted or were drafted in such a way that one or both parties may claim to have been treated unfairly.

Indiana Prenuptial Agreements - Setting them Aside for Fraud or Unconscionability

2010-02-24T07:03:00.001-05:00

Let us go back to 1996 and Rider v. Rider, 669 NE 2d 160 for a description of unconscionability:

In this case, there is no evidence of fraud, duress, misrepresentation, or unconscionability at the time the contract was made. Leslie brought most of the property to the marriage; Charles brought few personal assets and a modest income from more than 35 years of work at the Delco Remy factory. Both were looking to protect their assets for themselves and for their heirs. Thus, the couple entered into an antenuptial agreement which would provide this protection. Even though at the time of marriage one spouse was close to retirement age and the other spouse had recently undergone several surgeries, the agreement was silent regarding support in the event that one spouse would become disabled. Given these circumstances, if such support had been important to either of the parties, surely it would have been included in the agreement. Rather, the agreement specifically stated that if the parties separated, neither would be entitled to support.

As discussed above, the trial court found that Leslie has assets worth between $65,000 and $85,000. However, due to her illness and her inability to work, she is not capable of supporting herself. Thus, the trial court found that the agreement is "not binding" with regard to maintenance, and awarded Leslie $225/mo. The Court of Appeals agreed, finding that "[a]n antenuptial provision limiting or eliminating spousal maintenance is unconscionable and will not be enforced when it would deprive a spouse of reasonable support that he or she is otherwise unable to secure." Rider, 648 N.E.2d at 665.

However, both the trial court and the Court of Appeals failed to consider the relative financial positions of the spouses. Unconscionability involves a gross disparity. See Justus, 581 N.E.2d at 1272. Thus, while an antenuptial agreement which would force one spouse onto public assistance may be unconscionable, we believe that a finding of unconscionability requires a comparison of the situations of the two parties. At the time of divorce, Leslie's assets were worth at least $65,000, and she received $645/mo. child support from a prior spouse. Charles had personal assets which were worth only several thousand dollars and a pension which paid a gross $1,247/mo. Enforcement of the antenuptial agreement would leave one spouse with virtually all of the real and personal property, while leaving the other spouse with a modest income stream. This is what the parties brought into their short marriage, and this is what they sought to protect. The alternative, as ordered by the trial court, would provide Leslie with almost all of the property and a significant percentage of the income stream. Given Charles' limited financial position, we do not find enforcement of the parties' own agreement to be unconscionable.

We agree with the trial judge that Leslie should continue to pursue her claims for disability and social security. While we sympathize with her, and we understand that enforcement of this contract eventually may force her to sell her home, we cannot find enforcement of this antenuptial agreement to be unconscionable. Finally, we note that this case does not involve a situation where, following divorce, one spouse is left with considerable assets while the other spouse is left virtually penniless, with no means of support. 165 Rather, in this case, one party is left with a modest income stream, while the other party is left with a modest amount of real and personal property.

And to 1997 and the Indiana Court of Appeals' decision in Pardieck v. Pardieck, 676 NE 2d 359:

Finally, we address the trial court's creation of a "good faith" exception to the enforcement of an otherwise valid antenuptial agreement. The court concluded that it could set aside the agreement "where one of the parties did not act in good faith throughout the course of the marriage, using the antenuptial agreement in an unconscionable fashion to shield what would normally be marital assets." Record at 127.

Even accepting the trial court's finding that Gregg acted in bad faith during the marriage, we decline to create a new exception to the enforcement of an otherwise valid antenuptial agreement.[2] Indiana law does not require that a general duty of good faith and reasonableness be implied in every contract. See First Federal Savings Bank v. Key Markets, 559 N.E.2d 600, 604 (Ind.1990) (not court's province to require party acting pursuant to unambiguous contract to be "reasonable," "fair," or show "good faith cooperation"). To the contrary, when a court finds a contract to be clear in its terms and the intentions of the parties apparent, the court will require the parties to perform consistently with the bargain they made. Id.[3]

Here, the contract terms are clear and unambiguous. The assets Gregg listed in Exhibit A, including the Parkland, Inc. stock, are his separate property and are not subject to division. As stated earlier, this necessarily includes the assets accumulated by Onyx Paving, Inc. Julie does not have access to the wealth accumulated by her husband under Parkland, Inc. While that result may now seem harsh after 11 years of marriage, Julie freely entered into the antenuptial agreement, and the agreement was not unconscionable at the time of dissolution. As a general rule, the law allows persons of full age and competent understanding the utmost liberty to contract, and their contracts, when entered into freely and voluntarily, are enforced by the courts. Pigman v. Ameritech Publishing Inc., 641 N.E.2d 1026, 1029 (Ind. Ct.App.1994). Thus, we conclude that the trial court erred when it refused to enforce the antenuptial agreement according to its terms.

A Brief History of Prenuptial and Postnuptial Agreements - Indiana and Elsewhere

2010-02-23T07:40:00.002-05:00

Thank Google Scholar for this post. While doing some research I ran across Lifting the Veil of Ignorance: Personalizing the Marriage Contract, 73 Ind. L.J. 453 (1998). I suggest anyone having any opinions on our current family law system to give this a careful reading - some history, some statistics that might not be commonly known. Also, the writers avoid the usual dry as dust, insomnia inducing writing of most academics.

In all of that, the writers give a history of marital agreements and why few entered into prenuptial or post-nuptial agreements (on the way to proposing some interestingly unique ideas for reform).

Back in 1996, the Indiana Supreme Court handed down Rider v. Rider, 669 NE 2d 160, that gave this history of prenuptial agreements:

Antenuptial agreements are legal contracts which are entered into prior to marriage which attempt to settle the interest each spouse has in property of the other, both during the marriage and upon its termination. This court has long held antenuptial agreements to be valid contracts, as long as they are entered into freely and without fraud, duress, or misrepresentation, and are not unconscionable. See Mallow v. Eastes, 179 Ind. 267, 100 N.E. 836 (1913); Kennedy v. Kennedy, 150 Ind. 636, 50 N.E. 756 (1898); and McNutt, v. McNutt, 116 Ind. 545, 19 N.E. 115 (1888). These early cases drew a distinction between agreements which took effect upon the death of a spouse as opposed to those which took effect upon dissolution of the marriage. Those antenuptial agreements which involved application upon the death of a spouse were "favored by the law as promoting domestic happiness and adjusting property questions which would otherwise often be the source of fruitful litigation." Buffington v. Buffington, 151 Ind. 200, 51 N.E. 328, 329 (1898). However, the courts took a rather dim view of antenuptial agreements which limited the legal obligation of support upon dissolution of the marriage. Watson v. Watson, 37 Ind.App. 548, 77 N.E. 355 (1906).

Since these turn of the century cases, the number of subsequent marriages in our society has increased substantially. See In re Marriage of Boren, 475 N.E.2d 690, 693 (Ind. 1985). Individuals, especially those who have children from previous marriages, may wish to protect their property interests upon entering into a marriage. Id. at 694. In Boren, we concluded that policy reasons no longer compel us to find antenuptial agreements which take effect upon divorce to be void per se. Further, we held that the same traditional contract tests which apply to antenuptial agreements which take effect upon the death of a spouse also apply to antenuptial agreements pertaining to the dissolution of marriage. Id. Boren was the last time we addressed the issue of the validity of antenuptial agreements.

Since Boren, our Court of Appeals has had several occasions to address this issue. The leading case is Justus v. Justus, 581 N.E.2d 1265 (Ind.Ct.App.1991), trans. denied. In Justus, the Court of Appeals was presented with a situation where the couple entered into an antenuptial agreement freely, without fraud, duress, or misrepresentation. However, during the course of the marriage there was a change in circumstances, and the trial court would not enforce the agreement in its entirety. The Court of Appeals noted that

[a]s a general rule, a contract is unconscionable if there was a gross disparity in bargaining power which led the party with the lesser bargaining power to sign a contract unwillingly or unaware of its terms and the contract is one that no sensible person, not under delusion, duress or distress would accept. The doctrine of unconscionability necessarily looks to the time of execution.

Id. at 1272 (citations omitted).

However, the analysis did not stop there. The Justus court continued with a discussion of cases from other jurisdictions, focusing primarily on Newman v. Newman, 653 P.2d 728 (Colo.1982). In Newman, the Supreme Court of Colorado applied the above general contract analysis for property division, but would not do so for maintenance. For the latter, the Newman court found that such provisions may become voidable as unconscionable due to circumstances existing at the time of dissolution. 653 P.2d at 734-35.

163 In Justus, the Court of Appeals noted that we, in Boren, had cited approvingly to Newman. Further, the Justus court found that where enforcement of an antenuptial agreement would leave a spouse in the position where he would be unable to support himself, the state's interest in not having the spouse become a public charge outweighs the parties' freedom to contract. Justus, 581 N.E.2d at 1273. Therefore, the Justus court agreed that a court may look to circumstances at the time of dissolution to determine unconscionability of an antenuptial agreement.[2]

***

We are asked in this particular case to examine an antenuptial agreement which was not unconscionable when made, but due to a 164 change in circumstances would operate to create a financial hardship for one spouse. We note that in 1995 Indiana joined the growing list of states which have adopted the UPAA. Indiana's version of the UPAA reads in relevant part:
If a provision of a premarital agreement modifies or eliminates spousal maintenance and the modification or elimination causes one (1) party to the agreement extreme hardship under circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide spousal maintenance to the extent necessary to avoid extreme hardship.

I.C. § 31-7-2.5-8(b). The Indiana statute did not take effect until July 1, 1995, and is therefore not applicable to this case. Still, the adoption of the UPAA provides useful guidance regarding the question of unconscionability, and supports the trend of applying traditional contract law unless the agreement is unconscionable at time of dissolution.

And there we have a brief history of prenuptial law in Indiana.

Correction to Child Support Duty to End at 19

2010-02-22T11:25:00.002-05:00

It was pointed out to me this morning that House Bill 1356 did not pass out of committee. So my post here is wrong. My apologies for not double checking the action list.

Late News - SB0178 Passed out of Indiana House Committee

2010-02-22T08:46:00.000-05:00

Robert Monday sent me an e-mail on the 17th that SB 0178 had passed the House committee. I have written before on this Bill here. From what Mr. Monday reported, there were some interesting points raised during the hearing and I think I will have a post on his report later in the week.

Indiana Agreements - Modifying Spousal Maintenance

2010-02-22T07:48:00.000-05:00

Indiana has no alimony. What we have is spousal maintenance - and the General Assembly has limited when the courts can grant spousal maintenance (see my article here for more of an explanation). However, the parties can agree to what the courts cannot grant. What then if the parties agree to something - such as maintenance - which needs modification later, then what can the courts do?

That question gets answered by the Indiana Supreme Court in Voigt v. Voigt, 670 NE 2d 1271 (1996).

In addition to this legitimate concern for vexatious litigation, we believe modification of maintenance agreements approaches the limits of a court's statutory authority. As we have explained, the legislature intended to place severe restrictions on the power of courts to impose maintenance obligations. We have also noted that courts should exercise their authority to review settlement agreements with great restraint. Finally, it is obvious that a disgruntled former spouse should not be permitted to use the modification process to wage a collateral attack on a maintenance obligation. Farthing, 178 Ind. App. at 341-43, 382 N.E.2d at 945-46.
***
We think these cases, though not directly on point, establish a general principle applicable in the present case. Where a court 1280 had no authority to impose the kind of maintenance award that the parties forged in a settlement agreement, the court cannot subsequently modify the maintenance obligation without the consent of the parties. In essence, the parties must agree to amend their settlement agreement, because the sole authority for the maintenance obligation originally derived from their mutual assent.[13] In approving or rejecting any submitted modification agreement, a court should apply the same standard it would use in evaluating an initial settlement agreement.

We now hold that a court has no statutory authority to grant a contested petition to modify a maintenance obligation that arises under a previously approved settlement agreement if the court alone could not initially have imposed an identical obligation had the parties never voluntarily agreed to it. We therefore disapprove Pfenninger.

Notice the Indiana Supreme Court left open the issue of a trial court modifying a mainantence agreement that could have been imposed by the trial court. The Indiana Supreme Court tackled (kind of) that issue in Stuart v. Phillips, 734 NE 2d 1046 (2000):

The Court of Appeals reversed. Stuart v. Phillips, 723 N.E.2d 463 (Ind.Ct.App. 2000). The Court of Appeals concluded "that by expressly reserving the question of whether a court may modify a settlement agreement grounded in incapacity, 1047 caregiving, or rehabilitation," we had "created an exception to the rule that courts may not modify settlement agreements incorporated into the final decree." Stuart, 723 N.E.2d at 467. From this, the Court of Appeals held that "if the provision falls within the narrow parameters of maintenance orders that a court may impose without agreement of the parties, then the agreement may be subject to modification under the exception created by our supreme court in Voigt." Id. (footnote omitted).

However, Voigt expressly left open the question whether the court may take this action. We therefore disagree with the Court of Appeals that Voigt resolves the issue.

While this case pended on transfer, the parties filed a joint motion to dismiss the appeal, stating that their controversy had been settled and that Wife had filed a release of judgment in Bartholomew Superior Court. Because the parties have settled their dispute, it is not necessary to decide the question reserved in Voigt, and the question remains open.

More instructive may be Zan v. Zan, 820 NE 2d 1284 (2005):

Here, Joyce and Lawrence agreed that Lawrence would make rehabilitative maintenance payments to Joyce "due to the fact that [she had] not worked continuously throughout the marriage and needs assistance in obtaining an education to better employment opportunities." Appellant's App. p. 49. The trial court would have had the authority, pursuant to Indiana Code section 31-15-7-2(3), to order Lawrence to make such rehabilitative maintenance payments without the agreement of the parties.

Although our supreme court has not squarely decided the issue presented today, it is our view that the trial court may modify the Agreement under these circumstances. To hold otherwise may circumvent the parties' ability or desire to bargain independently without court intervention. Put another way, a party may be loathe to enter into an agreement such as the one here, knowing that a court could not intervene in the event of changed circumstances.

Even more compelling, when the Agreement is examined as a whole, it is apparent that the purpose of the rehabilitative maintenance provision was to enable Joyce to attend an educational or vocational training 1289 program. Specifically, the Agreement requires Lawrence to make rehabilitative maintenance payments for a full three years "so long as [he] remains employed in his current capacity with the FAA." Appellant's App. p. 49. While Joyce concludes from this clause that the only way, aside from the passage of three years, that Lawrence's obligation may be modified is if he loses his job with the FAA, our review of the Agreement leads us to disagree. A subsequent clause goes on to note that Lawrence "is agreeable to paying rehabilitative maintenance due to the fact that [Joyce] has not worked continuously throughout the marriage and needs assistance in obtaining an education to better employment opportunities." Id. It is apparent from this clause that the parties intended that the rehabilitative maintenance would assist Joyce "in obtaining an education" so that she could seek better employment opportunities. The evidence presented at the hearing showed that rather than obtaining an education, Joyce has collected over $18,000 from Lawrence and has instead apparently used it as a means of supporting herself. In our view, such was not the intent and spirit of the Agreement. Thus, under these circumstances, the trial court properly modified Lawrence's maintenance obligation

The points to take away from this:

Parties can agree to a spousal maintenance that the courts could not grant.
Do not expect the courts to modify an agreement that allows more than the courts could grant if circumstances change except for very narrow circumstances.
Be very, very careful drafting any maintenance agreements.
Because of #3, get a lawyer to draft or review any proposed maintenance agreements.

Indiana COA allows woman to establish maternity

2010-02-21T20:04:00.000-05:00

I got notice of this from The Indiana Lawyer and I am relying on its COA allows woman to establish maternity. Not the usual material for this blog but I find it intriguing - if for nothing else it shows how family law does get into the cutting edge of social change and how the court use old tools to meet new uses.

"The Indiana Court of Appeals reversed the denial of an agreed petition to establish paternity and maternity of a child who was born of a surrogate, finding equitable relief should allow the biological mother to establish she is in fact the baby's biological mother."

***

The state argued in In the matter of the paternity and maternity of infant R., No. 64A03-0908-JV-367, equitable relief may be afforded under the circumstances of the case; T.G., V.G., and D.R. claimed Indiana's paternity statutes could be construed so as to apply equally to their situation.

"While we conclude that the public policy for correctly identifying biological parents is clearly evinced in our paternity statutes, it does not follow that we must embark on a wholesale adoption and application of these statutes in order to provide relief under the narrow set of circumstances we are presented with today," wrote Judge L. Mark Bailey. "Rather, it is for the Legislature to evaluate and deliberate comprehensive proposals for changes to these statutes."

The appellate court decided, however, that these circumstances suggest that equity should provide an avenue for relief. If equity ignores technological realities the law has yet to recognize, a baby born under these circumstances would be denied the opportunity other children have to be linked to those with whom he shares DNA. A surrogate would be denied a remedy available to putative, but not biological fathers, to remove an incorrect designation on a birth certificate and avoidance of legal responsibilities for someone else's child, the judge continued.

Indiana Cases: Property division and a constructive trust

2010-02-21T16:11:00.000-05:00

What to do when a third party has an interest in property that is part of the marital pot? The Indiana Court of Appeals dealt with this problem in Leever v. Leever.

Appellant-petitioner Lisa A. Leever appeals the trial court’s order dissolving her
marriage to appellee-respondent Doug R. Leever. Lisa argues that the trial court erred by refusing to consider certain real estate as part of the marital estate, instead placing the real estate in an equitable constructive trust in favor of Doug’s parents. Finding that the trial court properly placed the real estate in constructive trust but should have assigned the real estate a value and included it in the marital estate, we affirm in part, reverse in part, and remand with instructions to assign a value to the real estate, include it in the marital estate, and re-divide the marital estate consistent with Indiana Code section 31-15-7-5.

The Court of Appeals explains constructive trusts here:

A constructive trust is a creature of equity, devised to do justice by making
equitable remedies available against one who through fraud or other wrongful means
acquires property of another. Kalwitz v. Estate of Kalwitz, 822 N.E.2d 274, 280 (Ind. Ct. App. 2005). A constructive trust is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Id.

***
While it is well established that fraud is a prerequisite to the imposition of a
constructive trust, this prerequisite is not confined to fraud as one might define it for
purposes of criminal law. Zoeller v. E. Chicago Second Century, Inc., 904 N.E.2d 213,
221 (Ind. 2009). Rather, the remedy is available where there is standard fraud or a breach of duty arising out of a confidential or fiduciary relationship. Id. The duty to convey the property may arise because the property was acquired through fraud, duress, undue influence or mistake, or through a breach of a fiduciary duty or the wrongful disposition of another’s property. Kalwitz, 822 N.E.2d at 280. The basis of the constructive trust is the unjust enrichment that would result if the person having the property were permitted to retain it. Id. This type of trust is more in the nature of an equitable remedy than an independent cause of action. Id.

Here the Court of Appeals explains why constructive trusts can be used in dividing marital property:

By imposing a constructive trust, the trial court implicitly found that a fiduciary or
confidential relationship existed between Doug’s parents and Doug and Lisa. A
confidential or fiduciary relationship exists when confidence is reposed by one party in another with resulting superiority and influence exercised by the other. Kalwitz, 822 N.E.2d at 281. In Indiana, certain legal and domestic relationships raise a presumption of trust and confidence as to the subordinate party on the one side and a corresponding influence as to the dominant party on the other side. Meyer v. Wright, 854 N.E.2d 57, 60 (Ind. Ct. App. 2006). These relationships include that of attorney and client, guardian and ward, principal and agent, pastor and parishioner, husband and wife, and, as in this case, parent and child. Id. Here, the existence of a confidential relationship is self-evident because Verna and Don trusted Doug and Lisa with the ownership of their home while Verna and Don were still living in the residence.

What to take away from all this? Putting marital property in another person's name does not mean that it will escape the divorce court.

Pending Indiana Legislation - Child Support Duty to End at 19

2010-02-19T08:21:00.001-05:00

2/22/10 Update: A correction here, the Bill did not pass out of committee and so it died. I leaving this post up because of the interesting comments.

The Indiana House has a bill ending child support at 19 instead of 21. The abstract seems a radical change:

"Duty to support a child. Provides that the duty to support a child ceases when the child becomes 19 years of age. (Current law provides that the duty to support a child ceases when the child becomes 21 years of age.)"

Actually. the statute only changes the age of 21 to 19 while retaining the obligation to provide for education when there is an order for educational benefits. Rather nice to see the General Assembly make a surgical change change to a statute than a complete overhaul (and leaving us to deal with the overhaul's unintended consequences).

This probably is an overdue change. I do not know how many clients have been surprised (more often unpleasantly) that child support does not end at age 18. Maybe worse, I cannot provide an explanation of why support continues to 21. (I have always assumed the reason being that educational benefits came in after the statute establishing child support ended at 21, and the intent was to support children going to post-secondary schools.)

Thoughts on Legal Separation

2010-02-19T07:03:00.000-05:00

I suggest my articles here on Indiana's legal separation law, but I think Ending or Renewing a Marriage with a Separation from Divorce Attorney's Office hits on a point I have not covered - the strategy of legal separation.

When deciding upon a separation, both partners should decide what the separation in the marriage will accomplish. If there are issues such as money problems or issues of fidelity, both partners need to decide what they will do during the separation to fix the problems that are affecting the relationship to prevent a divorce . Reconcilation after a separation is only possible if both spouses are willing to do the necessary work to fix the marriage. There are a number of people that view a separation as a period where the marriage can be mended or as a period where other personal relationships can be explored. A problem develops when both spouses are not on the same page about the purpose of the separation and this is something that needs to be discussed prior to the beginning of the separation.

It may be the scarcity of legal separation filings comes from the parties realizing that the marriage cannot be saved.

Indiana Relocation and Modification of Custody Factors

2010-02-18T11:14:00.000-05:00

We now have two different panels of the Indiana Court of Appeals agreeing that a trial court must consider the child custody modification criteria listed under the relocation statutes (Indiana Code 31-17-2.2-1 through -6) as well those under the child custody statute when dealing with a relocation/modification case.

Wolljung v. Sidell, 891 NE 2d 1109, 1113 (Ind.App. 2008) sets out the issue like this:

In relocation cases, there is an interplay between the custodial modification statute, Indiana Code Section 31-17-2-21, and the relocation statutes, Indiana Code 31-17-2.2-1 through -6. See Baxendale, 878 N.E.2d at 1256-57. While there is some overlap between the two statutes, both are in play and must be considered. Id. at 1257. Given the specific command of the legislature as stated in the relocation statute, the trial court is required to take into account all of the factors under Section 31-17-2.2-1(b). The court cannot do so without such evidence in the record. Thus, the parent seeking to modify a custody order due to the other parent's relocation must present evidence on each of the statutory factors. It does not appear from the record of the hearing or the order that the parties or the trial court addressed each of the factors listed in Indiana Code Section 31-17-2.2-1(b), at the hearing on Father's motion to modify custody.

The second case being IN THE MATTER OF PATERNITY OF JJ puts the matter this way:

Citing Baxendale and Wolljung v. Sidell, 891 N.E.2d 1109 (Ind. Ct. App. 2008), Mother argues that the trial court committed reversible error by failing to consider all the enumerated factors in the relocation statute. When a motion to modify custody is filed in response to a notice of intent to relocate, the trial court is required to consider the factors listed in Indiana Code section 31-17-2.2-1(b). Wolljung, 891 N.E.2d at 1112.

****
Noting the interplay between the custodial modification statute and the relocation statutes, and the specific command of the General Assembly as stated in the relocation statute, our court concluded that the trial court is required to consider the enumerated factors listed in section 31-17-2.2-1(b), and the court cannot do so without such evidence in the record. Id. Therefore, "the parent seeking to modify a custody order due to the other parent's relocation must present evidence on each of the statutory factors." Id. Because the record in Wolljung did not demonstrate that the parties or trial court fully considered or took into account the requisite statutory factors, we remanded the case to the trial court with instructions to conduct another hearing on Father's motion to modify custody and to hear evidence on each of the statutory factors. Id.

We are compelled to reach the same result in the case before us. First, we observe that the trial court's order does not lead us to the conclusion that the court considered each factor listed in section 31-17-2.2-1(b). As Mother notes in her brief, the trial court's order does not address the hardship and expense involved for Father to exercise parenting time, the feasibility of preserving the relationship between Father and J.J. through suitable parenting time, the financial circumstances of the parties, and whether Mother has engaged in a pattern of conduct to either promote or thwart Father's contact with J.J. See Br. of Appellant at 17; Appellant's App. pp.4-5.

(Curiously, the Google Scholar version lacks a West citation but the slip opinion shows that case is For Publication).

Indiana Code Section 31-17-2-8 reads as follows:

IC 31-17-2-8
Custody order
Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.

Following Up On The Court Records Posts

2010-02-18T07:03:00.000-05:00

Alexandria goes live on new statewide case database from The Anderson Herald Bulletin might best describe the mess of our courts (although there are serious differences between a town court and the courts hearing family law cases) even better than what was discussed in Court Files, Court Records and Getting Them and A Guest Post Following up on My Court Records Post.

The new Odyssey Case Management System has been introduced in 13 counties in Indiana, with the idea that it will link court records across the state.

“It was the goal of the court to have one statewide system so judges could see what was happening in other courts,” said Mary DePrez, director and counsel for trial court technology at the Indiana Supreme Court’s Judicial Technology and Automation Committee.

Although the database is geared toward trial courts, the committee has a Department of Justice grant that allows it to extend Odyssey to city courts whose systems are extremely old.

Also The Muncie Star Press reports 2 more counties join Indiana state courts network:

INDIANAPOLIS — Courts in Blackford and Huntington counties are now among 50 Indiana courts using the state Supreme Court's electronic case management system.

Information in the Odyssey system is available over the Internet at no cost.

Odyssey was installed in 10 Indiana courts on a pilot basis in December 2007 and now operates in 18 counties. These courts comprise 22 percent of all the new cases filed in Indiana.

***
Allen County is scheduled to begin using Odyssey later this year.

Pending Indiana Legislation - Grandparent and Great-Grandparent Visitation

2010-02-17T10:15:00.001-05:00

The Indiana General Assembly has finally recognized that we now have great-grandparents young enough (or even still living) to be involved with their great-grandchildren.

House Bill 1055:

"Grandparent and great-grandparent visitation. Allows great-grandparents to seek visitation rights with their great-grandchildren in certain circumstances. Allows a grandparent or great- grandparent to seek visitation if the grandparent or great-grandparent has had meaningful contact with the child but, as a result of an estrangement between the parent of the child and the grandparent or great-grandparent, the parent of the child terminated the child's visits with the grandparent or great-grandparent. Establishes factors for the court to consider in determining whether granting a grandparent or great-grandparent visitation rights is in the best interests of the child. Provides that a court may order a party to an action for grandparent or great-grandparent visitation to pay a reasonable amount for the cost to the other party of maintaining or defending the action, including costs for attorney's fees and mediation. Specifies that certain agencies are not required to pay costs. Makes conforming changes."

Reading the statute, I can only describe what is being thought of here consists of only adding great-grandparent to the existing grandparent's visitation statute. From its structure, I do not see that prior case law shall be greatly affected - even with the addition of best interest factors - since we will still need to deal with Troxell v. Washington. (But what of a case where grandparents and great-parents both - all? - have visitation rights and no one can agree on scheduling? Well, that is how judges earn their salaries.)

Dallas Court Goes Paperless - Hello, Indiana?

2010-02-17T07:02:00.000-05:00

I do not often post on criminal matters but DFW Texas News on Twitter's Dallas County criminal court records go paperless caught my eye.

The federal courts have been doing this for several years now. I will admit to some gripes about that system but people this will come to pass some day.

Anyone have any thoughts?

New from the Indiana General Assembly - Paternity Affidavits

2010-02-16T10:15:00.001-05:00

The Indiana Senate and House both bills dealing with paternity affidavits. I quote from the General Assembly's abstracts of the Bills but I recommend reading the actual language of each Bill. I have written about the Senate Bill here. The Senate will have a hearing tomorrow at 10:30 am and it may be webcast.

A thought came to me tonight about the Indiana Senate's Bill - it presumes that all men in a paternity situation have a relationship where they want joint custody. I noticed in the past few years where the parties in paternity cases do have a relationship that is far less tenuous than when I started practicing law. On the other hand, would a father appear at the hospital who has not an interest in the child?

While the Senate's Bill seems more concerned with creating a joint custody presumption than dealing with what I see as the real problem of paternity affidavits - fraud. The House's Bill does address fraud but in a rather strange way:

"Paternity affidavits. Provides that a paternity affidavit executed before or after the birth of a child who is born out of wedlock must include: (1) a statement by the mother that the person she has named as the father of the child is the only person who could possibly be the father and that she understands that she has committed fraud if a man other than the named man is the biological father; (2) a statement by the person named as the father that he has reviewed the mother's statements and that he understands that the paternity affidavit may not be rescinded more than 60 days after the paternity affidavit is executed; and (3) a sworn statement that includes an affirmation under the penalties of perjury that the representations in the paternity affidavit are true."

The proposed law places a criminal penalty on the woman but no method for the man to set aside the paternity affidavit based upon her fraud. Current case law makes the whole procedure of setting aside a paternity affidavit tricky. Give a look at my Paternity: New Case on Setting Aside Paternity and Want to Set Aside a Paternity Affidavit in Grant County, Indiana? for a taste of the problems. I might be more impressed if the Indiana House specifically allowed for a procedure to disestablish paternity.

Prenuptial Agreements - Why They Need Considering

2010-02-16T07:02:00.002-05:00

Image via Wikipedia

I agree wholeheartedly with the sentiment of

Wedding Planning and the Prenuptial Agreement: Prenup Considerations Every Bride and Groom Should Know even if I quibble with some of the details:

Courts don’t make allowances for sentimental value, so if a bride wishes to keep her great-grandma’s quilt after a divorce, that treasured quilt needs to be protected from the community assets of the marriage. The same would apply to the groom’s cherished Stratocaster guitar or to a multitude of other personal belongings that are valuable or likely to appreciate in value during the marriage.

The Los Angeles Times published Love me, love my credit score:

Passion often blinds sweethearts to the fact that matrimony is, at bottom, a contract. Figuring out how that partnership can prosper is critical for a successful union. Yet financial differences rank among the greatest sources of marital misery, in part because talking about money before you tie the knot makes many couples uncomfortable.

Some worry that prying into each other's finances might indicate a lack of trust, or that a prenuptial agreement is a self-fulfilling prophecy for splitting up.

In fact, experts say, just the opposite is true. Spouses who find themselves bickering about finances early in their marriage could well end up hashing out the same issues in divorce court, according to Tina Tessina, a licensed psychotherapist and author of "Money, Sex & Kids: Stop Fighting About the Three Things That Can Ruin Your Marriage."

And then there is Prenuptial agreements and marital trusts are unromantic, but important from The Palm Beach Daily News:

"Ask a 20-something about-to-be bride what she thinks of prenuptial agreements and you'll probably hear how unromantic she believes they are. Her betrothed is likely to agree. After all, most first-timers walking down that matrimonial aisle are usually so consumed with love and adoration for one another that they're unable to see much beyond their future plans, hopes and dreams. You can thank love for that.

Ask a 70-year-old blushing bride what she thinks about prenuptial agreements, and she'll tell you they're a necessity. Understanding marriage is as much of a business relationship as anything else, her betrothed will no doubt agree. You can thank love for that, too.

Love, it turns out, is as complicated as a marriage no matter what age or stage in life Cupid's arrow pierces someone's heart. On one hand it's a huge turn-on — a chemically enhanced one at that. On the other, it can take those joined together on a path of twists and turns that is fraught with as much pain as pleasure."

News on Child Support Collection and Indiana Casinos

2010-02-15T11:18:00.001-05:00

This in from today's The Indianapolis Star:

A bill that would force casinos to screen jackpot winners for parents who owe child support faces a key hurdle in the Statehouse today.

Senate Bill 163 will get a hearing in the House Public Policy Committee. If it becomes law, it could help recoup some of the $2 billion in child support owed here and boost Indiana's lagging record of collecting it.

***

The Indiana Casino Association is fighting the measure. It says checking names adds red tape and wastes time at the payout desk. Some argue that the casino industry, which is privately run, shouldn't be forced to comply with the mandate.

Indiana ranked 41st among states in the percentage of child support it collected, according to 2008 figures from the federal Office of Child Support Enforcement, the most recent available. Pennsylvania was first, with a 79 percent collection rate.

Not sure if that includes what comes through the County Clerks and private actions, or not.

Bray said pilot projects in other states show that catching debtors at the counter can increase child support collections significantly. He said Colorado collected more than $600,000 in gambling winnings in the first year after a 2008 law took effect there.

The bill also would require children involved in custody cases to be covered by health insurance, a decision federal law leaves up to individual states.

Will have to see the language for the health insurance coverage. And I will refrain from any comments about the federal government pushing this off onto parents while they cannot pass health care reform.

Fee Agreements - What Applies In New York and Indiana

2010-02-15T08:18:00.001-05:00

Image by publik16 via Flickr

Divorce Saloon published Retainer agreements and your divorce: A primer. Some applies directly to Indiana,

In New York and most other if not all other states in the Union, a retainer agreement in matrimonial actions is a requirement. Failure to execute one and provide a client with a Statement of Clients Rights and Responsibilities could preclude an attorney from getting paid one dime in the divorce action. It is a very serious infraction. As a matter of fact, here in New York, an attorney is required to file the retainer agreement with the court along with the client’s statement of Net Worth at the very beginning of the case, so that the court can assess whether or not the attorney’s fees and terms comply with state law and mandates.

It doesn’t matter if the divorce is contested or uncontested. An attorney is required to have a retainer agreement for ANY matrimonial action that he or she handles because guess what? A lot of uncontested divorces, so called uncontested divorces, actually turn out to be contested. And the attorney is required to have the terms of such an eventuality spelled out for the client at the beginning of the case or risk not getting paid if the thing turns ugly.

Okay, New York is a whole lot tougher than Indiana. Our fee agreements are definitely not filed with the court (which makes me wonder if the New York fee agreements are then open to the public - and therefore other lawyers. Indiana lawyers really have no idea what everyone else is charging until and unless we ask the court for payment of fees by the other side.)

Indiana's Rule of Professional Conduct 1.5 applies to our fee agreements. The main parts dealing with family law matters are these:

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a dissolution or upon the amount of maintenance, support, or property settlement, or obtaining custody of a child; or

(2) a contingent fee for representing a defendant in a criminal case.

This provision does not preclude a contract for a contingent fee for legal representation in a domestic relations post-judgment collection action, provided the attorney clearly advises his or her client in writing of the alternative measures available for the collection of such debt and, in all other particulars, complies with Prof.Cond.R. 1.5(c).

Back to Divorce Saloon's article, and its listing of what should be in the fee agreement:

1. Names and addresses of the attorney and client.

2. The hourly fee/rate

3. Amount of any advance retainer and what it covers.

4. Whether the agreement covers appeals, family court proceedings or any other proceedings in addition to the divorce action.

5. the right of the client to fire the attorney at any time or to seek other counsel at any time.

6. Whether the attorney would require an additional retainer for trial or not.

7. Frequency of itemized billing.

8.under what circumstances the lawyer may seek to withdraw from the case and the attorney’s right to seek a charging lien.

9. Client’s right to be kept abreast of the case and receive correspondences if requested.

10. all other pertinent terms and conditions.

Frankly, I would think 1 -7 would not need much explaining to the general public. Everybody wants to know what will be the cost and what they are paying for. Eight and Nine, I spell out in my fee contracts because most clients doe not seem to understand that lawyers are supposed to communicate with them (see Indiana's Rule of Professional Conduct 1.4) or that we can withdraw from a case (see Indiana's Rule of Professional Conduct 1.16). But I got to say that I am not sure what comes under the heading of "ll other pertinent terms and conditions," and it probably does leave the general public scratching their heads.

So far, I have published on Scribed my fee agreement for visitation cases, child support cases, and for uncontested divorces. Between sick kids, work and an attack of bronchitis, I have not finished with revising all of my fee agreements. Keep checking my documents at Scribd as that is where I will be posting them.

So You Want to Be Your Own Lawyer

2010-02-08T07:02:00.000-05:00

Read Re N: How not to write a skeleton from Family Lore. Short post with John Bolch providing a commentary that ought to clarify how to write something going before a judge.

Yes, it is English but that makes no difference at all. The legal system is a formal system - regardless of all the Judge Judys on television - there are rules to follow. Some are written and some are not -I would call the rule violated in the Family Lore post as an unwritten one but inherent in any formal setting.

Yes, we lawyers do relax a bit but even then it is within the framework of a system. We know where to tread and how to tread to avoid the bombs. After all, that is one of the multitude of things we do for our clients.

Romance and Vetting the Significant Other

2010-02-07T07:02:00.001-05:00

Not my idea but something published by the Indianapolis Business Journal's NewsTalk blog:

Vetting your sweetheart
With Valentine’s Day just around the corner, a Purdue University expert recommends the marriage-minded conduct some pragmatic due diligence before engagement rings find their way onto fingers.

It’s widely known that financial problems undermine many a marriage. To that end, Sharon Burns, an associate professor of consumer sciences and retailing, suggests looking for bad habits before they wreak havoc. Not easy to do during such a passionate time, maybe, but still wise. Here they are:

--Your sweetheart has borrowed lots of money from you once or has borrowed from you more than once. This can signal they’re living above their means or managing money poorly.

--He or she buys lots of the latest clothes, gadgets, cars and other luxuries. Big spending can reveal their needing a crutch to make them feel better and, ultimately, personal insecurity or lack of discipline.

--Your love needs financial help from family or friends. “Mature adults support themselves,” Burns says.

--They pay for normal living expenses with credit cards and then don’t pay the bill in full at the end of the month, a “sure sign of disaster ahead."

--They can’t hold down a job. In a normal economy, you should wonder if they’re lazy or lack self discipline.

Which leaves me wondering if the old idea of courtship doesn't have something over dating? After all, if one has been courting (or long term dating) how can one fail to notice that the significant other has problems holding down a job?

Which then leads me to wonder if the divorce rate's climbing numbers has less to do with some ill-defined ease of getting a divorce and more with the parties being less well-prepared for marriage.

And I will leave you with this last thought: the law can do a lot but society can do even more.

New Indiana Court of Appeals Decision - Paying off a Marital Debt

2010-02-06T07:02:00.000-05:00

Husband was to pay $9,000.00 in installments to wife, husband does pay as ordered but instead starts paying out of a pension payment, and then stopped those payments after paying $7,502.66. (Marriage of Hurt, pages 2 -4). Apparently, they lived together after the divorce.

At a contempt hearing, the parties disputed whether the money sent by husband to wife was meant to pay off the judgment.

Problems for the husband:

The parties seemingly forgot that there was a court order and decided to do their own thing.
Because of 1, husband never got an explicit agreement that his payments wee against the judgment; and
Husband never got a satisfaction of judgment which would have put an end to everything.

The Indiana Court of Appeals put it this way:

Here, the record reveals that during 2007 when the funds were being directed into
Wife’s accounts, Husband and Wife had reunited, and they were paying bills jointly.
During this time period, Husband was not receiving any additional disbursements from his pension. Wife used much of the funds paid to her on joint expenses, including paying for auto insurance on Husband’s truck and for a life insurance policy insuring Husband’s life. Wife also spent the funds on food, hardware, utilities, and trips to the drug store which benefitted both Husband and Wife. Also, Wife testified at the hearing that the reason for the pension funds being directed into accounts solely in her name was so the funds would not “show up in [Husband’s] account while he was doing the bankruptcy.” Transcript at 13. Also, in January 2008, soon after Husband and Wife again separated, Husband redirected the monthly payments from his pension to pay to an account in Husband’s name, and to stop all payments to Wife’s accounts. As Husband attested to at the hearing, however, he never filed, nor requested that Wife file, a satisfaction of the judgment.

(Opinion at 8 -9).

Recently, I have seen a few cases where people decided that the court's Orders did not apply to them for some reason known only to them. Think more along the lines obliviousness than something more malevolent. This case seems to fit in this pattern.

Remember that whether your case is a divorce or paternity case, your life is now joined with the court and its Orders. Do not follow those Orders at your peril.

One last thing, if the issue in your head was the value of a lawyer then think about this: husband has still to pay $9,000.00 to wife after he thought she was paid off plus paying for trial and appellate counsel. How much would have calling his lawyer before he started making payments have saved him? My guess is $15,000.00. And probably whole lot less frustration.

Not Quite The Usual Child Support Case

2010-02-05T08:57:00.000-05:00

Indiana Lawyer reported on Mark E. Hicks v. Tammy L. (Hicks) Smith in Dad who took son owes arrearage to mom

"If this was a typical case involving an arrearage - that is, if Mark had accrued an arrearage while Tammy had Brandon in her custody until he was emancipated - it would be easy to affirm the trial court's order awarding a judgment for the arrearage to Tammy," wrote Judge Margret Robb for the majority. "On the other hand, if Mark and Tammy had agreed that Mark would take custody of Brandon in lieu of paying child support despite the trial court's order otherwise, it would be easy to reverse the trial court's order. However, neither situation is presented by these facts."

The majority presumed that although Smith didn't provide support for Brandon while he was missing, she maintained a home for him and made decisions during that time based on the possibility he would return. The majority also found no authority for awarding the arrearage directly to Brandon, so based on the circumstances of the case, they upheld the lower court's ruling.

I think the paying of child support arrears to the child deserves a bit more attention. The following comes from pages 9 -10 of the opinion:

Mark cites Thacker v. Thacker, 710 N.E.2d 942 (Ind. Ct. App. 1999), in support of his request to have the arrearage paid directly to Brandon. In Thacker, custody of the parties’ two children was awarded to the mother and the father was ordered to pay child support. For two years, the parties’ son lived on his own. During those two years, the father reduced his support payment, and when the son returned to the mother’s home, increased it again....Unlike the son in Thacker, however, Brandon did not support himself during the time he was absent from Tammy’s household and Thacker does not support Mark’s request to order the arrearage paid directly to Brandon. In Moody v. Moody, 565 N.E.2d 388 (Ind. Ct. App. 1991), we held a trial court erred in ordering the non-custodial parent to pay one-half of the back support he owed directly to an emancipated child. “Because [custodial parent] presumably expended her own funds through the years to care for the children, she is entitled to collect the arrears. It is not necessary that she prove she spent the amount of the back support on the children.” Id. at 392.

Maybe that explains the law on this subject clearly enough.

General Assembly Looking to Change Child Support Statutes

2010-02-04T16:04:00.002-05:00

The Indiana General Assembly digests the Bill this way:

Various child support matters. Requires persons who own or operate a river boat licensed as a gambling operation or a horse racetrack licensed for gambling games to: (1) withhold cash winnings of obligors for amounts the obligors are delinquent in child support; and (2) deduct and retain an administrative fee in relation to withholding the obligor's delinquent child support. Requires the: (1) gaming commission to place on probationary status, suspend, and deny licenses for gambling games at horse racetracks; and (2) the alcohol and tobacco commission to place on probationary status, suspend, and deny employee's permits; of certain obligors who are delinquent in child support. Provides that a person whose driving license is suspended because of delinquent child support is not required to pay a reinstatement fee to have the person's driving license reinstated. Provides that the child support bureau (bureau) and certain contractors of the bureau may be granted access to information in certain state systems and in certain records of state agencies and other entities, subject to policies adopted to prevent disclosure of certain law enforcement information. Requires a court to immediately withhold income under a child support order established in any proceeding. Provides that a recipient or applicant of the Temporary Assistance for Needy Families program who refuses to cooperate in: (1) a paternity action; or (2) the establishment or enforcement of a child support order; is subject to sanctions or revocation or suspension of assistance. Requires a guardian or custodian of a child to generally cooperate with the bureau and certain other agencies regarding certain paternity and child support matters. Requires a custodial parent and noncustodial parent to provide certain information to the clerk of the court. Provides that a court may consider a child emancipated if the child is on active duty in the United States armed forces. (Current law provides that a court may consider a child emancipated if the child has joined the United States armed forces). Provides that the income withholding provisions apply to any proceeding in which child support is established. Requires an employer to transfer the National Medical Support Notice to the employer's health insurance plan within 20 days after the date of the National Medical Support Notice. Requires an income withholding order form to contain certain information. Provides that an income payor may not distribute income in a manner that would result in one of the current child support obligations not being honored. Provides that an income payor is not required to vary the income payor's normal pay and distribution cycles in order to comply with the income withholding provisions. Requires that a court or administrative agency deem due process met if certain requirements have been met. Provides that various persons are immune from civil and criminal liability for certain acts or for failures to act. Prohibits a person from disclaiming an interest in property up to the extent of the person's child support arrearage. Prohibits a court from considering a parent's absence or relocation due to active military duty as a factor in determining custody or permanently modifying a child custody order. Makes a technical correction.

General Assembly News: Joint Custody, Paternity

2010-02-04T07:30:00.002-05:00

I received the following e-mail last week and finally got around to asking for permission to post this today (2/3/20010). I think this is well worth publicizing even if I have problems with this on a practical lawyer level. Here goes:

As many of you know, I have been active for about the last 20 years trying to ensure that, in Indiana, both parents of a child in a non-intact family (paternity or divorce) who desire to do so, and have no good reason to the contrary, have regular and continuing access to their child so that they can parent them: providing financial, physical, emotional and spiritual support.

I have recently been able to get a bill (SB0178) sponsored by Senator Brent Steele (R-Bedford) introduced that would give paternity (unmarried) dads joint legal custody and the statewide minimum parenting time (according to the Indiana Parenting Time Guidelines) upon BOTH the mother's and father's signature of a paternity affidavit, a document usually presented in the hospital to unwed parents upon the birth of their child.

Presently, when a dad signs such affidavit, the mom gets sole custody and he has no guarantee of ANY parenting time for his child. To get such time, he must file a motion with the court, wait (3-4 months) for a hearing date, suffer through numerous continuances (if the mother wants to delay proceedings) and pay various fees in order to get the court to order that he may see his own child. That resulting order is typically the minimum time any parent should have according to the Indiana Parenting Time Guidelines!

Naturally, the state is assisting mom with representation to make sure that child support is ordered and collected, but the same prosecutor who seeks the child support order CANNOT litigate custody or parenting time for the dad! The source of funds which pay for the prosecutor, Title IV-D, specifically forbids that activity. Note that the circumstances and background of the moms makes no difference on whether she gets sole custody of the child, at present, since there is NO hearing of any kind, no presentation of evidence, and no determination of "the best interests of the child" (the standard for divorcing couples) before such custody is granted to her!

If no paternity affidavit is signed, the mother gets sole custody of the child. This bill does not change that, but note that the mother now ALWAYS gets sole custody, regardless whether a paternity affidavit is or is not signed!!

Last Tuesday, we were able to get Senate Bill 0178 passed out of the Indiana Senate committee to which it was assigned for initial review. VERY shortly, it will be voted on by the 50 members of the Senate. There is a great deal of confusion about the bill, with some people thinking that this is a bill which will promote domestic violence (it has NO effect on any DV protections available to anyone), while others think that it will give unmarried fathers more rights than married fathers get. This is also untrue, as married fathers have joint legal custody until, like unmarried fathers would if this bill is enacted, there is a court order to the contrary.

The bill also permits paternity dads who are out of the country (i.e., military duty) to have up to 10 days to file a paternity affidavit before their child may be put up for adoption without their approval. Presently, they have only 72 hours after the birth of the child before their rights may be terminated and the child adopted. It can be very difficult to find out about the birth, get paperwork faxed both directions, and protect his rights in that little time!

I am posting a link below, and ask that you contact your own state senator and ask them to support Senate Bill 0178. Each senator has an email account available at this link. Please let them know that you are one of their constituents, and that you want them to support this bill.

The link for email is:

http://www.in.gov/cgi-bin/legislative/contact/contact.pl

Again, at this time I am most interested in getting Senators contacted. If it passes the Senate, then we will undertake an effort to get it though the Indiana House of Representatives. Historically, the House has been more favorable to this type of legislation than has the Senate, thus the extra effort I am requesting via this message.

***

Please let me know of your senator's commitment or refusal to vote for this bill so that I can track those commitments. Feel free to simply forward their response to you to the above email address, if you wish.

I have never before solicited my friends and business associates before to ask for help like this, but it is the first time we've ever been able to get such a bill this far through the process. I thank you in advance for your help.

Bob Monday

Indiana State Coordinator

The Children's Rights Council
www.crckids.org
317-685-4656

Just Because There is a Law

2010-02-03T07:03:00.000-05:00

Everyone should read Lesson Learned From Case of Child Abducted to Brazil and Retained for Five Years: An International Convention is Only As Good as Its Enforcement Mechanism from Florida Divorce * Child Custody * Domestic Violence Law Lawyer for more than its obvious topic:

Yet, in a recent case there, the Indian Supreme Court ruled that an Indian Wife who had been permanently residing in the UK with her Husband and their child, must return to the UK with their child for custody proceedings there.

Ultimately, the adverse impact of Brazil’s conduct on future trade with the US may have propelled Brazil to finally send the boy home.

Now, a Congressman from that boy’s home state, New Jersey, has introduced legislation intended to promote enforcement of the Hague Convention by appointing an official to monitor compliance and to empower the government to impose sanctions for noncompliance.

Enforcement falls down for two reasons: 1) the parties think someone else will enforce their court order; or 2) the court itself does not do as it should. The Brazil case falls in the second category.

Without a person taking action a court order remains only paper.

When one of our courts go off into the weeds, the remedy is an appeal.

A statute is only as good as its enforcement mechanism.

Indiana General Assembly News - Senate Resolution on New State Constitutional Amendment

2010-02-03T07:02:00.002-05:00

Having been down with the bronchitis, I am late noting Senate gets resolution on marriage, civil unions. The Indiana Lawyer reported this:

Committee members heard about two hours of testimony Wednesday in the Senate chambers before passing Senate Joint Resolution 13 by a 6-4 vote along party lines. It now moves to the full Senate for consideration.

Authored by Sen. Carlin Yoder, R-Indianapolis, SJR 13 would create a constitutional definition of marriage being between a man and woman. It also would say that "a legal status identical or substantially similar to that of marriage for unmarried individuals" wouldn't be recognized legally. A similar marriage amendment failed to pass the last legislative session and as a result never went before the voters.

***

Yoder told his colleagues that this measure is more strictly focused on civil unions than it was in the past and is specifically aimed at stopping what some describe as "counterfeit marriages" between the same-sex couples. The constitutional amendment is needed now because of legal challenges that have materialized in other states, and Indiana should take the step that 30 other states have done, he said.

Here are some explanations on the votes:

Sens. Greg Taylor, D-Indianapolis; Lonnie Randolph, D-East Chicago; Tim Lanane, D-Anderson; and John Broden, D-South Bend voted against the measure. Sen. Ron Alting, R-Lafayette didn't vote.

Explaining their votes, Randolph indicated he'd changed his vote based on the testimony he heard, and Lanane said he was specifically against it because of the civil-union impact and the economic impact this could have. Taylor said he felt this measure is discriminatory and ties the hands of future generations.

"Who am I to decide what makes everyone else happy?" Randolph said, noting that he supports a marriage between one man and woman. "I can see the underlying effects of what this could mean, and I can't interject my personal feelings and thoughts onto how you feel."

If SJR 13 passes the Senate and House this session, it would still need to be approved during the 2011 session before it could be put on the ballot for voters to decide

I have written before about this - for some reason this issue trumps others of practical importance to Hoosiers - as being bad for anyone living together in Indiana. This year's language seems to only reinforce my opinion. I doubt the resolution leaves the Indiana House but any Hoosier who prefers living together to marriage needs to concern themselves over this legislation.

For other articles dealing with this topic:

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Getting Divorced and Wife Pregnant - How Not to Rebut Presumption of Paternity

2010-02-01T16:30:00.000-05:00

The law setting out the presumption of paternity is found at Indiana Code section 31-14-7-1. This 2004 Indiana Court of Appeals opinion, Richard v. Richard, 812 NE 2d 222, gives us an idea of how not to address a questionable child of the marriage:

In the case at bar, Carl and Carmen's divorce was finalized on September 15, 2000, and C.R.R. was born on June 1, 2001—well within the 300 day period set forth in I.C. § 31-14-7-1(1)(B). In addition, DNA testing indicated that there is a 99.999% probability that Carl fathered C.R.R. Nevertheless, the presumption may be rebutted by direct, clear, and convincing evidence that the husband: (1) is impotent; (2) was absent so as to have no access to the mother; (3) was absent during the entire time the child must have been conceived; (4) was present with the mother only in circumstances which clearly prove there was no sexual intercourse; (5) was sterile during the time the child must have been conceived; or (6) can show that the DNA test of another man indicates a 99% probability that the man is the child's father combined with uncontradicted evidence that the man had sexual intercourse with the mother at the time the child must have been conceived. Minton v. Weaver, 697 N.E.2d 1259, 1260 (Ind.Ct.App.1998), trans. denied. However, the record reveals no such evidence here.

To the contrary, Carl's testimony shows that, although he adamantly denies having sex with Carmen, he had access to her during the period of time that C.R.R. would have been conceived. Likewise, he presented no evidence that he was impotent or sterile. Our supreme court has previously held: "[f]or the putative father to merely state that he did not have relations with his wife when he had opportunity to, regardless of the quality or credibility of his testimony, is not sufficient to set aside the presumption." L.F.R. v. R.A.R., 269 Ind. 97, 99, 378 N.E.2d 855, 857 (Ind.1978).

***

Despite Carl's contentions, we find nothing in Charles' testimony that constitutes 228 the direct, clear, and convincing proof necessary to overcome the statutory presumption that Carl is the biological father of C.R.R. See Minton, 697 N.E.2d at 1260. Thus, in the same vein that our supreme court has held that a putative father cannot overcome the presumption by merely denying he had relations with his wife, we hold that Carl cannot overcome the statutory presumption of paternity by merely presenting testimony of his identical twin brother that the child is probably his and he is willing to pay child support. See L.F.R. 378 N.E.2d at 857. As a result, we hold that the trial court committed no error in determining that Carl is the biological father of C.R.R.

Mediation - Video Explaining Pros and Con

2010-01-28T09:50:00.001-05:00

I found this video on Lextube. I think it does a very good job of explaining the good and bad of mediation.

A Guest Post Following up on My Court Records Post

2010-01-27T08:02:00.001-05:00

A brief introduction and an apology: the following came via e-mail after publishing Court Files, Court Records and Getting Them and the delay came about due to the need to deal with work. This is my first guest post. The formatting got lost in translation, so I will apologize for that also. I want to point out that this e-mail underscores just how little data we have on our courts.

I'll start with a disclosure- I work with one of the companies that "competes" with the Odyssey system by providing an alternative that works today and costs the taxpayers nothing. It *does* cost attorneys something, but in total, considerably less that the fees and taxes assessed to pay for the State's system. To give you an idea of the difference in expense, the annual salary costs for JTAC staff alone is about three times gross receipts in the last year. Their entire budget for 2009 was roughly 12 times our gross receipts. 50 counties use our system, so much of the court information in the State is in fact centrally available.

Here are several pieces of information that may have been unclear from the article you saw: 1) The Odyssey system doesn't include document imaging, so despite the $89 Million (per the LSA) spent by the Judicial Technology and Automation Committee so far, you still can't obtain complete public case documents from any of the counties that use the Odyssey system without visiting the courthouse. What you can get is part of the CCS. 2) The system procured by the Kosciusko clerk *does* include document imaging and the ability to share all public court information, including document images on-line.

Five clerks using that system requested permission from the Division of State Court Administration in April 2008 to make documents available on-line, more clerks have sought permission since then, but the Division of State Court Administration has not yet acted on those requests. It is not inferior technology or the unwillingness of local clerks that has kept these records bound up in the county courthouses. It is within the State Court Administrative Division's power to grant this access, and they have simply not allowed it. This may be because the Odyssey system doesn't stack up very well in comparison to the existing systems and this will become apparent if access is allowed. The Kosciusko clerk has opted to use a system that costs less per court than Odyssey and is capable of providing more of the type of access you would like to see. Of course, a press release from the folks promoting Odyssey won't highlight that distinction. Sadly, most newspaper articles on the topic are nearly verbatim reprints of those releases.

I am willing to chat further with you about this if you are interested- I also wouldn't mind posting any of the information above as a comment on your blog, just posting a comment felt a bit like starting an argument instead of a dialogue. Since I'm in agreement with you basic premise that broader access to court information is, I thought I'd start with a personal communication to correct some of the inaccuracies in that article and invite further discussion. Best Regards, -Nick

News - Federal Judge Stops Changes in Foster Car Payments

2010-01-27T07:02:00.000-05:00

While outside my practice area, this may interest some of my readrs. The Indiana Lawyer published Judge blocks DCS rate changes for now last week:

A federal judge in Indianapolis has temporarily blocked the Indiana Department of Child Services from reducing the amounts it pays to foster and adoptive parents and juvenile-service providers.

After an hours-long hearing Wednesday in two combined cases against the state agency, U.S. Judge Sarah Evans Barker of the District Court's Indianapolis Division granted a preliminary injunction against the DCS. This means that service providers and those adoptive and foster parents will continue getting the same money received during 2009, at least until the case progresses or the court orders differently.

***

Some people have already seen reductions in their payment, and those issues may be worked out at a later time, the parties said.

"We consider this a victory for children, and we're very glad that our concerns were heard," said Cathleen Graham, IARCCA executive director. "The children we're working with are very vulnerable and need these services, and I believe the judge saw the potential for harm with any delay in doing this. We're very satisfied with what she said about the importance of that promise of quality care that's stated in federal law. That speaks to what we as providers are very concerned about when we offer these services to children and their families."

Ken Falk, legal director for the ACLU of Indiana, said his class of clients was also pleased about the judge's ruling as it ensures they won't be faced immediately with lower reimbursements for the services they provide. The state now has a chance to appeal the decision, but if that doesn't happen then the case can move to trial, Falk said.

In response to the ruling, DCS spokeswoman Ann Houseworth said the agency was disappointed but will abide by it while officials continue pursuing all options to provide for the best possible care. As no official written ruling has yet been issued, Houseworth said no decision had yet been made about appealing the decision.

Indiana Child Support Guidelines Explained

2010-01-25T07:02:00.000-05:00

DivorceSupport.com has a page here for child support definitions. I think it is a bit of a misnomer - the page is actually a readable explanation of how the Guidelines are to work.

I think I better mention that the web page does not appear to take into account any changes in the new Indiana Child Support Guidelines (for those follow this link). I looked it over fast but I do not think it will make any difference except in some details.

Some English Marriage and Divorce History

2010-01-24T13:09:00.001-05:00

The following is from the Times (London) Literary Supplement's review of The English Marriage by Maureen Waller. I thought it might be sof some interest.

Meanwhile, common law disregarded all that gothic canon law and refused to confer the usual marital property rights on couples who had not gone through a public church ceremony. The state had a vested interest in the proper procedures too, mooting a tax on marriages in the 1690s and levying a stiff stamp duty on marriage licences. Above all, rich parents believed they had the right to dispose their offspring as they saw fit and as rank, blood and inheritance demanded. The rage of property owners when errant daughters eloped with penniless adventurers helped to fuel the passing of Hardwicke’s Marriage Act in 1753, which made the marriages of those under twenty-one illegal without the consent of their guardians.

The Act legislated that only a marriage in the parish church of one of the lovers performed by an ordained priest of the Church of England was valid. Jews and Quakers were exempt, but not Nonconformists, who had to swallow their denominational pride or be seen to live in sin. Famously, the Act had no purchase in Scotland, and inadvertently sparked a panting rush for the border to the accommodating vicars of Gretna Green. But it would be decades before older ideas of informal marriage would be stamped out entirely in England.

Courts Cost Money

2010-01-22T07:03:00.000-05:00

For those wanting to understand a bit more the courts in your life, and for those who think we need judicial reform (particularly child custody matters), this post is for you.

Indiana's Chief Justice must give a yearly State of the Judiciary speech to the Indiana General Assembly. From The Indiana Lawyer's report on his speech, Chief justice: courts handling the tough times, I latched onto the following paragraphs:

The chief justice encouraged lawmakers to support any measures designed to help the judiciary collect all revenue that the law says is due from court operations so that it can go directly to state and county budgets that need it. Because requests for new courts and judges just aren't reasonable because of the economic state, the chief justice urged lawmakers to support legislation that would allow retired magistrates to also work as senior judges to ease local caseloads.

Additionally, the chief justice recommended that lawmakers support legislation that would create a framework for new veterans' courts, problem-solving courts that would allow the judiciary to better deal with those with special disabilities stemming from military service pressures. This would mimic what's already been done with drug and re-entry courts, he said.

"This bill has no fiscal note at all, and indeed the net of these three ideas is revenue positive," he said, adding to a message that the judiciary will do all that it can to assist in these tough times.

***

Chief Justice Shepard also pointed to areas the judiciary has worked on during 2009: a statewide electronic protective order registry system is enacted in every county, and hundreds of law enforcement agencies have used the e-citation system implemented in the past year. He also pointed out the 1,112 attorneys and judges who've been trained to help in mortgage foreclosure cases, and that the judiciary will soon put facilitators into foreclosure-settlement sessions to help. In addition, the number of new volunteers trained as court-appointed special advocates in 2009 increased 26 percent over 2008.

He also spoke about how the state's judicial branch is about ready to unveil new statewide jury instructions that will be easier for non-attorneys to understand and how a statewide assessment tool for juvenile offenders in the Department of Correction has been adopted.

Even if there was a role for a court to act in a more policeman role, that is a more activist role, there is no money for them to do so.

Even more specifically about family law and judge, The Indiana Lawyer published State funding of judges being explored

Lawmakers rejected a southern Indiana county's request this week for a new judge to run a family court, even though it proposes paying for it locally rather than with state money. But in declining to attach the magistrate-turned-judge idea to another bill, a House committee said it wants to keep talking about the issue that could be a policy-altering move in how Indiana pays for its trial court judges.

The House Judiciary Committee approved HB 1154, which would allow Marion County to convert its 24 appointed commissioners to magistrates that hold the same responsibilities but would be able to consider a wider range of issues within each court. The county proposes paying the $2.3 million for those magistrates with a $35 fee tacked on to traffic infractions, which has been collected since 2004 and is by law turned over to the state general fund. The fee initially went into place to pay for jail overcrowding costs, but that issue has been largely resolved and the fee isn't used for that anymore. Now, the state's largest county wants to use that money to save the state from having to pay for the county magistrates or pay for adding new judicial officers.

***

Committee members voted 11-0 in support of the idea, but not before voicing hesitation about a proposal by Rep. Eric Koch, R-Bedford, to amend the legislation so that Bartholomew Superior Court could also convert a commissioner position into a new Superior judgeship starting in July 2011.

This would allow the county to convert a current commissioner, who hears only child support non-payment cases, to a judge that could hear all family-related case types. Bartholomew Circuit Judge Stephen Heimann proposed using the same kind of funding mechanism as Marion County is proposing in its commissioner-to-magistrate conversion - using a fee of at least $20 on traffic infractions that would go to the state general fund. If anything fell short of the estimated $150,000 needed, the county would be responsible for making up the difference. An estimated $189,000 per year could be raised from the fee, and be applied not only to the judge's salary but also benefits, Judge Heimann said.

Even without this having a state fiscal impact, Rep. Trent Van Haaften, D-Mount Vernon, questioned why the proposed amendment didn't call for a commissioner-to-magistrate change as Marion County's proposal did, but rather a commissioner-to-judge. In response, Judge Heimann said it was specifically because the county needed a new family court and needed a judge's authority to hear all of those issues that might come before it.

Just in case anyone thinks this only an Indiana problem, give a read to The Future of Divorce in MN

The court system is in a financial crisis. This crisis has been articulately described by Chief Justice Eric J. Magnuson in highly publicized interviews he has given to the media. I have read some of his interviews, and I have to say that I think he is right. (I also have to disclose that, technically, I work for the Minnesota Supreme Court. My license to practice law is granted by the Minnesota Supreme Court, and in some sense Chief Justice Eric J. Magnuson is my “boss.” Regardless, I feel that he is right and I think that anyone who has an interest in the Minnesota court system should make known to their legislators how important it is that the court system be adequately funded.)

In a practical sense, the lack of funding effects every person who is getting divorced in Minnesota. The court filing fee is now $400. It could increase. It costs $100 to file a motion in divorce court, and it even costs $25 to send a fax to the court. These are the costs that are easy for people to recognize.

However, there are other costs. The funding for child custody and parenting time evaluations in Hennepin County has been reduced significantly. Now, judicial officers are talking about parties using private evaluators. Private evaluators typically charge thousands of dollars for a custody or parenting time evaluation.

Unpaid, overworked describes every court I know of.

For Muncie and Delaware County: They Are Looking for CASA Volunteers

2010-01-21T08:50:00.000-05:00

From The Muncie Star Press comes Session planned for Delaware County CASA volunteers

The Delaware County Court Appointed Special Advocate Program is now accepting applications for its winter training program. As the number of abused and neglected children continues to grow, the need for committed volunteers is greater than ever.

An informational session for anyone interested in learning more about the CASA program will be 5:30-8:30 p.m. Feb. 1 in the training room at the Youth Opportunity Center, 3700 W. Kilgore Ave.

***

Training dates for those interested in volunteering for CASA will be Feb. 3, 8, 10, 15, 17, 22 and 24 and March 1.

All sessions will be 5:30-8:30 p.m. in the YOC training room.

Those interested in volunteering should call the CASA office at (765) 747-7875. Applicants must be at least 21 years old and will be required to complete a screening process, including a criminal background check.

Having An Amicable Divorce

2010-01-20T07:02:00.000-05:00

No, an amicable divorce is not an oxymoron only a difficulty. Give How to Have an Amicable Divorce a read.

Though your life together has ended, your ex will still affect your future. Consider sitting down to talk to your ex about what each of you wants from the future. Ask yourselves some of the following questions. Do you want to be friends? Is it okay if you each stay in contact with the other person’s family? How will visitation work if you have kids? How will you handle new relationships and telling the other person? If you discuss hard issues before they happen, you can pave the way for an amicable divorce.

Online Divorce Resources Reviewed

2010-01-19T08:03:00.000-05:00

Divorce Transitions - not much for lawyers being designed for the clients. If you are looking for information that is more than legal (such as handling the stress of a divorce), then this site may be of use. Note that they have things to sell.

Moving Out, Moving On - bills itself as a an online workbook for when a relationship goes wrong.

Divorce Magazine.com - a bit too busy a site for my tastes, but here is how it describes itself:

Divorce Magazine is the Internet's leading divorce and separation resource site, providing information and advice about divorce law, divorce lawyers, family law, children and divorce, and other divorce-related issues as well as information on divorce professionals such as family lawyers and online divorce. At Divorce Magazine, we realize that going through a divorce is a very delicate matter, and we're here to help you through the divorce and separation process.

Life123 has a a series of articles here on divorce dealing with those issues that are not strictly law stuff but which can easily impact a case.

Definitions for Indiana Divorces

2010-01-19T07:02:00.002-05:00

Pretty simple and I think a bit short but let us call Indiana Dissolution of Marriage Definitions a good start.

Glossary of Legal Terms exists on our Indiana Courts page at In.gov. Longer and not exclusively geared for family law. Still has a few things that I would add to the first list.

Tips on Handling the Other Parent

2010-01-18T07:02:00.000-05:00

Good advice here coming from Divorce, it's just the beginning blog's We Assume a Rational World.

There are no quick fix answers to any of these questions. Each divorce in unique and a “one size fits all” answer doesn’t exist. Keeping this in mind, there are some things a parent can do to minimize the irresponsibility the other parent exhibits. My first suggestion is DON’T lie or cover for the other parent. The children are going to have to figure out their relationship with both parents and cannot do this if they are being presented with misinformation. The parent also should not highlight or dwell on the irresponsible behavior of the other parent by engaging in talking negatively about them.

Try to role model for your children the types of behaviors you want them to exhibit as they grow into adulthood. If you are yelling at them, you are teaching them to yell. If you complain all the time, you are teaching them to complain. Try to show your children the way you want them to act by modeling that behavior. If your ex-partner misses visitation, be there for your children to let them talk about how they feel while letting them know that a parent shouldn’t act that way.

One great problem facing family law lawyers, judges, and the entirety of the family law system is that we have presume everyone is rational. Learning that they are not takes time and a lot of frustration. Yes, lawyers get just as frustrated as our clients. I am nowadays giving advice given me by my mother when people would get my temper flaring: consider the source and ignore them. Read all of the above article, it has sound advice.

Dressing for Court

2010-01-17T07:02:00.000-05:00

Ohio Family Law Blog has a spot on post with How To Dress For Court – Do’s And Don’ts. He has some interesting specific suggestions that I will bet are based on experience.

The proper and/or appropriate attire for either party changes dramatically if the parties are facing a “contested” divorce and/or custody hearing, wherein each would be on the witness stand for protracted periods of time and, wherein, their appearances would certainly be scrutinized by the Court.

FOR MEN: Same as above; however, a sports coat or suit could be worn but would not be considered mandatory. If the Husband/Father is seeking custody of his child or children, he would want to be dressed conservatively…nothing too flashy, nothing too out-of-the ordinary. For example, if a young Husband is seeking custody of his child/children, he could receive “negative” points if he appeared in Court in non-traditional attire such as Black Gothic Style clothing or wildly colored hair. Remember, that most Judges are older conservative individuals. If the Husband/Father has an abundance of tattoos, I would definitely suggest that he consider wearing a long-sleeved shirt to “cover” the tattoos! Also, it would be advisable for the client to remove evidence of body piercings….ears, lips, nose, eyebrows, etc.

FOR WOMEN: The main point to remember……..you do not want to appear in Court as Sharon Stone appeared in “Basic Instinct”! This is not the time to appear to be “hot” or “sexy” especially if you are seeking custody of your child or children. You want to appear stable, sensible, warm and loving. Soft colors are better than bright and vibrant colors. Longer skirt lengths are better than short skirt lengths! You do not want to wear anything that would be considered “too short, too skimpy, too wild, too bold, or too sexy”.

I advise my clients to dress appropriately for Court. Dress as you would for church or an important job interview. If you are in the armed services, wearing your military attire is a very safe choice. If you look sloppy or inappropriate, the Judge or Magistrate may believe that you are showing or displaying a lack of respect for the Court. You have but one opportunity to create that “first impression”! So, consider these “do’s and don’ts” in advance of your Court date and make a good impression with the Judge.

I make a slightly different suggestion. Dress like you are going on a date to a very nice restaurant - not a place for a suit and tie. With the point being that the client/witness should feel comfortable in their clothes. Something I learned a long time ago when I still did criminal defense work and jury trials. The client was clearly not comfortable in his clothes and it was attracting the attention of the jury.

Kysa M. Crusco over at the New Hampshire Family Law Blog also picked up on this Mr. Mues' post. She makes a similar point to what to mine above:

Case in point: I was sitting in court waiting for one of my cases to be called and watching a hearing in progress. The case was a parenting action, with two pro se parents appearing before the judge on a contested temporary hearing. The mother appeared neatly groomed and dressed, and seemed reasonable and articulate when presenting her case. The father, on the other hand, was dressed in torn cargo shorts, a thin, white tank top and work boots. He appeared sloppy and careless, and despite the fact the he seemed to have some good points about his case, it was hard to overlook his exterior when assessing his credibility. A pair of slacks or khaki pants and polo shirt would have gone a long way.

Attorney Mues advises litigants to dress as they would for church or an important job interview. Good advice. I would add that you should not overdress either. If you work as a mechanic, and rarely dress in a suit, steer clear. If you are an accountant and go to work every day in a suit, it is a good choice. Pick an outfit that will give a good impression, but an outfit that you will feel comfortable with and fits your personality and profession.

Oh, and piercings...good idea to leave them at home.

Indiana Child Custody Law - Joint Custody as Sharing

2010-01-16T08:03:00.000-05:00

I keep looking for better definitions of joint custody in Indiana. Better meaning a clear, concise explanation distinguishing joint from sole custody. So far, Finnerty v. Clutter (Ind: Court of Appeals 2009) has the best (and the latest)

Having determined that the parties have joint legal custody, we conclude that Indiana Code Section 31-17-2-17, on which Mother relies, is inapplicable. We clarified in Gonzalez v. Gonzalez, 893 N.E.2d 333, 336 (Ind. Ct. App. 2008), that "custodian" in the context of Indiana Code Section 31-17-2-17 refers to the legal custodian, not the physical custodian.[1] Indiana Code Section 31-17-2-17, upon which Mother relies, applies to instances in which one parent has legal custody of the child rather than where the parties have joint legal custody.[2] See 14 Ind. Practice Series, Family Law § 8:57 (discussing joint legal custody). Thus, Mother's argument that she, as physical custodian, has authority "to determine the children's religious upbringing" fails. Appellant's Reply Br. p. 1.

"Joint legal custody" means "that the persons awarded joint custody will share authority and responsibility for the major decisions concerning the child's upbringing, including the child's education, health care, and religious training." Ind. Code § 31-9-2-67 (emphasis added). Because Father and Mother have joint legal custody, Father and Mother share authority and responsibility for decisions regarding the children's religious training.

I want to point out that joint custody is not shared custody - there is no physical sharing of a child. Joint custody has one parent with physical custody. See my Defining Joint Custody in Indiana for more details on this point. Joint custody does not mean more physical interaction with the children than sole custody bu tonly a sharing of authority and responsibilities in the child's upbringing.

Drafting Agreements - Cover All the Bases

2010-01-16T07:38:00.000-05:00

Take this scenario: parties agree that one gets Y unless x happens. Being even more specific, assume that one party agrees to give the other half a pension, unless the other married.

What happens if the other party does not marry but lives with someone? Does the other party get the share of the pension?

Answer: Yes.

You get stuck with the language you put into an agreement. No better reason exists for getting a lawyer to at least read any agreement put together during any case. A lawyer provides to the parties an objective, critical for catching the problems that might arise out of a proposed agreement. I think document review would be a perfect candidate for an unbundled service.

Married means married. If the Decree/agreement says married, then
living together does not matter. She gets the pension.

Getting Divorced in Indiana and The Wife Is Pregnant

2010-01-15T07:02:00.004-05:00

This post concerns itself with searching Google Scholar for Indiana case law.

I noticed the fallowing query on Google brought someone to this blog: "Indiana divorce law pregnancy". I assumed the person sought information about what to do when the wife is pregnant after start of the divorce proceedings.

Since I do not think that I have written on the specific issue, I thought this was a good time to take Google Scholar for a test drive.

The original query did not work very well and so I tweaked the query until by using "Indiana "dissolution of marriage" pregnant wife" I got some results.

If the search was what to do when a wife is pregnant and father doubts paternity, then I think the following set of facts describes a good procedure for father:

Russell v. Russell, 682 NE 2d 513 - Ind: Supreme Court 1997 - Google Scholar

The Russells were married in 1987 while wife was three months pregnant with J.R. During the course of their marriage, wife gave birth to three children, including J.R.

On October 29, 1993, husband filed for dissolution of the marriage and gained temporary custody of the children. In early 1994, however, the trial court approved an Agreed Entry of Joint Custody and Visitation providing that the children would spend 3.5 days per week with each parent. Later, on April 15, 1994, wife filed an Emergency Petition for Temporary Custody and Petition to Terminate Visitation, wherein she maintained that husband was physically abusive toward the children. Her petition was denied. On May 5, 1994, wife filed an Emergency Petition for Modification of the 1994 Agreed Entry, again claiming physical abuse of the children and also asserting that husband was not the biological father of J.R. On June 15, the trial court ordered DNA testing, but husband would not comply. On February 3, 1995, husband, under threat of contempt for failure to submit to the DNA testing, and wife signed an Agreed Entry of Paternity stipulating that husband was not the biological father of J.R. The trial court initially approved the Agreed Entry, but 515 when wife stated that she did not plan to establish paternity in anyone else, the trial court stated that it would vacate it. Before that happened, wife withdrew the 1995 Agreed Entry.

(Lawyers, notice that the opinion contains the West pagination as well as the West citation.)

Got doubts about paternity? Then file a motion for DNA testing. The same procedure can be found in this case: Richard v. Richard, 812 NE 2d 222 - Ind: Court of Appeals 2004 - Google Scholar.

None of this matters unless the child's paternity is questionable.

Calculating Indiana Child Support - Imputing Income

2010-01-14T08:03:00.002-05:00

Let us thank a Hamilton County judge for inspiring this post. At a hearing last month, I was asked whether or not the federal minimum wage was to be used when imputing a child support order. Mother had no particular job skills. The judge asked if my argument applied to a housewife. The question struck me as peculiar. Never has a judge ever asked that question. I thought maybe it was a peculiarity of Hamilton County or Noblesville.

Neither Indiana Child Support Guideline 3 nor it s commentary specifies what to use as a basis for the imputation.

Commentary to Guideline 3A

d. Imputing Income. Whether or not income should be imputed to a parent whose living expenses have been substantially reduced due to financial resources other than the parent's own earning capabilities is also a fact‑sensitive situation requiring careful consideration of the evidence in each case. It may be inappropriate to include as gross income occasional gifts received. However, regular and continuing payments made by a family member, subsequent spouse, roommate or live‑in friend that reduce the parent's costs for rent, utilities, or groceries, may be the basis for imputing income. The marriage of a parent to a spouse with sufficient affluence to obviate the necessity for the parent to work may give rise to a situation where either potential income or imputed income or both should be considered in arriving at gross income.

Lambert v. Lambert, 839 NE 2d 708 - Ind: Court of Appeals 2005 outlines the case law up to 2005 (and which was not disturbed by the Indiana Supreme Court when it took transfer of this case).

In a typical case, the Child Support Guidelines provide that if a parent is voluntarily underemployed, the trial court must calculate child support by determining the parent's potential income. Ind. Child Support Guideline 3(A)(3). Potential income is to be determined upon the basis of "employment potential and probable earnings level based on the obligor's work history, occupational qualifications, prevailing job opportunities, and earnings levels in the community." Id. The purposes for including potential income are to "discourage a parent from taking a lower paying job to avoid the payment of significant support" and to "fairly allocate the support obligation when one parent remarries and, because of the income of the new spouse, chooses not to be employed." Child Supp. G. 3, cmt. 2c. The trial court enjoys broad discretion to impute income to a parent so that the parent cannot evade a support obligation. Glover v. Torrence, 723 N.E.2d 924, 936 (Ind.Ct.App.2000). However, we also recognize that there are circumstances in which a parent is unemployed or underemployed for a legitimate purpose other than avoiding child support and in those circumstances, there are no grounds for imputing income. See Abouhalkah v. Sharps, 795 N.E.2d 488, 491 (Ind.Ct.App.2003) (holding that trial court erred in imputing income to a father who had left his job and was now earning less because "[a] parent who chooses to leave his employment rather than move hundreds of miles away from his children is not voluntarily unemployed or underemployed. Instead, he is a loving parent attempting to do the right thing for his children.").

Minimum wage has the benefit of being easily determined and calculated, but I do recall any case where there was any other item that could be used for imputing income. Thomas v. Orlando, 834 NE 2d 1055 - Ind: Court of Appeals 2005 discusses some cases where different bases were used for imputing income:

The trial court imputed minimum wage to Jessica but also concluded that the "fact that she was living at home and had help from family members to meet her day to day needs is not imputable to her as income." Appellant's App. p. 11. Jessica points to our decision in Terpstra v. Terpstra, 588 N.E.2d 592 (Ind.Ct.App.1992), as an example of the way in which we apply this Guideline. In Terpstra, we agreed with the trial court, which declined to include the father's company vehicle as imputed income. In so doing, we noted that "whether to include this amount in the weekly gross income is a matter for the trial court's discretion .... Viewing all the evidence before it, the trial court decided not to impute additional income to Father for his business automobile. We do not find this decision to be an abuse of discretion here." Id. at 595-96.
Robert, in contrast, points to our Supreme Court's decision in Glass v. Oeder, 716 N.E.2d 413 (Ind.1999), as support for his position. In Glass, our Supreme Court affirmed the trial court's order, which included the father's rent-free living arrangement as imputed income. The court noted that the father's "rent-free living arrangement provides him with a lower living cost that presumably frees up money for the support of his children and was a proper basis for the trial court to impute income." Id. at 417. In addition to his living arrangement, the father owned a corporation and received over $40,000 per year as income from that corporation.

Collaborative Divorce - A Somewhat Contrarian View

2010-01-14T07:02:00.000-05:00

Eastern North Carolina Divorce's Collaborative Divorce? Don't Hold Your Breath. provides a counterpoise (sort of) to my Should Indiana Have a Statute Promoting Collaborative Divorce? and Explaining Collaborative Divorce.

Traditional divorce already has many of the supposed benefits of collaborative divorce. Attorneys do talk to each other, do realize that it is better for their clients (and their children) to work things out, and really do try to reach agreements for their clients. The only thing that collaborative divorce adds is that the attorneys will withdraw if no agreement is reached. And when that happens, clients have to go through the additional expense of hiring new lawyers and paying them for work that their previous lawyers already did.

To this author, this approach assumes that divorce attorneys try to avoid settling cases so that they can pad billable hours through litigation. I don't subscribe to this cynical approach. My experience is that most attorneys represent their clients interests zealously and honestly. Sometimes this includes going to trial; these cases would have to go to trial even had they begun in the collaborative process.

The only difference is that their clients had to hire two attorneys.

My views probably hew closer to my North Carolina colleague. Settlemetn provides a better resolution for more cases than going to court. Most lawyers know lawyers will work to settle a case than not. I have two rather long pieces on knowing when to fight and when not to here and here.

However, I think every family law attorney knows that there are lawyers who will never settle - they have made their reputations as fearless fighters. Clients think that their fees are the price of admission to litigation. These two mindsets hinder the family law process.

About the fearless fighter type, I recall a hearing in 2008 when a judge lectured opposing counsel and myself with surely this could have been settled by my calling opposing counsel. Other attorney when told about this will laugh. They know that the aottrney's business model is based on not settling cases and they never return calls.

Clients need to realize that the great amount of fees comes from not being in court but in preparing for court - the witness and exhibit preparation, the discovery process. One can invest very heavily in a case that has not yet seen a courtroom. Cutting short the trial preparation need seems to me the economic bonus to the client side of the equation.

Requiring collaborative law ought not remove the lawyer's responsibility to seek settlement of the case. I agree wholeheartedly with my North Carolina colleague on that point.

I see educating about collaborative law as educating about the legal system. The general public needs to understand that their images of a glorious legal battle in a courtroom are wrong. Those images belong on television. They need to understand that what they are paying for is reaching their goals in a case - not merely going into a courtroom.

Now For Some Legal Humor from England

2010-01-13T08:18:00.001-05:00

Oh, I am thankful for never having the case described by BabyBarista on their London Times blog under WBLG: Year 4, week 15: judicial blackmail

“Got you a nice little earner for you for tomorrow,” said my Instructing Solicitor SlipperySlope on Monday. “Family case. Very simple.”

“But I don’t know anything about family law,” I answered.

“Don’t worry about that. You probably still know more than me and anyway, it’ll settle, I promise.” Then he added slightly mysteriously, “The judge’ll see to that.

So it was that I ended up doing my first family law case yesterday. I’d done a bit of research but was still massively out of my depth and I admit that my knees were shaking just a little. Which wasn’t helped any when the judge then boomed at my opponent: “Who’s paying for this complete waste of time and money?”

“Er, er,…” My opponent didn’t seem to be any more confident than me in this area and he was stumped. “Er, Your Honour, may I please take instructions?”

“You certainly may. But let me warn you now. If this case is being funded by the taxpayer and it doesn’t settle pretty sharpish, it’s the sort of case where the papers may just well end up with the inland revenue.”

Divorces, Name Changes and Tax Information

2010-01-13T07:02:00.000-05:00

The come from Five Filing Facts for Recently Married or Divorced Taxpayers at International Tax Counselors Blog :

Here are five facts from the IRS for recently married or divorced taxpayers. Following these steps will help avoid problems when you file your tax return.

1. If you took your spouse’s last name or if both spouses hyphenate their last names, you may run into complications if you don’t notify the SSA. When newlyweds file a tax return using their new last names, IRS computers can’t match the new name with their Social Security Number.
2. If you were recently divorced and changed back to your previous last name, you’ll also need to notify the SSA of this name change.
3. Informing the SSA of a name change is a snap; you’ll just need to file a Form SS-5, Application for a Social Security Card at your local SSA office.
4. Form SS-5 is available on SSA’s Web site at www.socialsecurity.gov, by calling 800-772-1213 or at local offices. It usually takes about two weeks to have the change verified.
5. If you adopted your spouse’s children after getting married, you’ll want to make sure the children have an SSN. Taxpayers must provide an SSN for each dependent claimed on a tax return. For adopted children without SSNs, the parents can apply for an Adoption Taxpayer Identification Number – or ATIN – by filing Form W-7A, Application for Taxpayer Identification Number for Pending U.S. Adoptions with the IRS. The ATIN is a temporary number used in place of an SSN on the tax return. The W-7A is available on IRS.gov, or by calling 800-TAX-FORM (800-829-3676).

Enforcing Indiana Visitation Rights

2010-01-12T12:13:00.002-05:00

Between reading WHAT IS NEEDED FOR VISITATION ENFORCEMENT? and an e-mail from a client of mine, I think I need to clarify some points about enforcing parenting time/visitation that I made in my What to do if refused visitation? and .

First, let us be clear - withholding child support means only more trouble and not less.

Second, the remedy is contempt. See Deckard v. Deckard, 841 NE 2d 194, 203(Ind Ct. App. 2006).

Which brings me to the first point where I find the solutions suggested by WHAT IS NEEDED FOR VISITATION ENFORCEMENT? to be wrong. In addition to the court order granting visitation, it is suggested that a second document be filed with the court and served on the custodial parent:

This sample document is used to notify the non-custodial parent of intent of visitation and printed with permission from DADS Against Discrimination and is intended to help document attempts made while exercising court ordered visitation.

Utterly unnecessary. Custodial parent has all the notice necessary from the court order granting visitation. So does the court. The non-custodial does not give notice because the visitation schedule is expected to be followed without any other action by the non-custodial parent.

Read this from the Indiana Parenting Time Guidelines:

2. Punctuality. Each parent shall have the child ready for exchange at the beginning and at the end of the scheduled parenting time and shall be on time in picking up and returning the child. The parents shall communicate as early as possible regarding any situation that would interfere with the timely exchange of the child.
Commentary

Punctuality is a matter of courtesy. Parents should make every effort to pick up and return a child at the agreed time, and not substantially earlier or later. Parents should recognize, however, that circumstances occur that require leeway in the scheduled times. Phone calls are always appropriate when there will be a delay.

This document fails to serve as evidence of visitation but only that the non-custodial parent gave notice. Therefore, it does nothing when custodial parent says the non-custodial parent did not show up.

Further down the page on WHAT IS NEEDED FOR VISITATION ENFORCEMENT?, the site gives advice on how to prove a denial. About the only one that seems even useful to me is to bring a witness.

Getting cop can be done but do not expect them to come along happily, if they do. Police consider this a civil matter and their job deals with criminal matters.

The custodial parent should have copy of the order granting visitation. Therefore, it is wholly unneeded unless non-custodial expects the police to show up and ask why he is there. Also, bringing only the Divorce (or Paternity) Decree can be useless if the Decree was modified and you do not also bring along the Indiana Parenting Time Guidelines. Most Decrees now say IPTG at a minimum. (Do not expect the police to know about any of this - visitation is a civil matter and outside their training). Understand that means you got 80 plus pages in your hand by this time, if you follow the suggestions given.

As evidence that you got denied visitation, 4 and 5 are pretty useless. Doing this only proves that you made the recording. Here is the scenario in every visitation case I have tried - defending or pursuing:

Attorney: You were to have visitation on X date?
Non-custodial: Yes.
Attorney: What happened?
Non-Custodial: I was not allowed to have my children.
Attorney: Did custodial give you a make up date?
Non-Custodial: No.

With that the non-custodial establishes a prima facie case for contempt. Remember the burden is on the custodial parent to prove they did not commit contempt. Recording that you got there and were denied changes nothing, adds nothing, to the evidence of the custodial parent.

What confused one of my client is that every missed visitation does not merit a contempt affidavit. No client could afford the cost, no court is going to want to see an affidavit for every missed weekend. If the custodial continues to refuse visitation after filing of a contempt affidavit, the post-filing refusals become evidence of contempt and goes to whatever remedy the trial court orders for the case (such as the number of make up visitation).

Also, see my Enforcing Parenting Time: Contempt

Towards a Successful Relationship

2010-01-12T09:58:00.001-05:00

Self Growth Engine has How Little Things Become a Big Problem. I can say from my own experiences find the following very accurate:

Everyone has quirks and characteristics that may be annoying to others, especially when you are spending a lot of time together. The dirty socks on the floor, feet on the couch, dirty dishes in the sink, a unique laugh…When you first start dating someone, these characteristics are not as apparent and may not be an issue. But as time ticks on, these once excusable traits become an issue. However, it is not the trait itself that causes the problem; it is the meaning that we attach to the action. The top 10 complaints that people who are dating have are thinking an act is deliberate, messiness, feeling unloved, feeling unappreciated, feeling controlled, not feeling intimate, flirting, personality conflict, lack of fairness, and feeling criticized. All of the above problems are caused by a common factor; our perceptions and the meaning we attach to others actions. In order to have a successful relationship we must learn to look at other peoples actions in a productive way instead of a destructive pattern.

Give all the article a read.

Out Of All the Tiger Woods Blather, Here is an Interesting Idea

2010-01-12T07:02:00.004-05:00

I avoided discussing or mentioning anything about Tiger Woods' marital problems because I just did not see any thing interesting for me or my readers. That is until I read Lawinfo Weblog's Tiger Woods Mistress Reveals Voluntary 3-Year Affair….. Should There Liability for Intentional Interference With Marriage?

The reports are all over the media of how Tiger Woods apparently carried on an affair with his mistress, Jamiee Grubbs, for almost three years! Some reports (mostly tabloids at this stage) quote Jamiee as stating that Tiger would visit her every few months and they’d “enjoy each other’s company.” Aside from the issue of what can be in a husband’s (or wife’s) mind when cheating… what is the deal with these women who go along with these full-blown affairs with men they know are married?

I’ve written previously about the idea of whether or not you should be able to sue the person who has an affair with your spouse or partner… and your comments are greatly appreciated and insightful. In that post, I intentionally focused on the situation of carrying on an all-out affair with full knowledge that the other person was married. In the business world, one can be held liable for tortiously interfering with a business relationship. For instance, if a person convinces another to break his/her business promises or contracts, or prevents a business person from living up to the same, the meddler can be held liable to the injured party who did not receive the benefits of the business relationship. Should there be a similar legal concept for marital relationships? Isn’t that what these cheating partners do?…. convince a husband to break his marriage promises, interfere with the husband’s marital relationship, preventing the wife from receiving all the benefits of the marriage relationship to which she is otherwise entitled?

***

Interesting arguments on both sides. After reading so many of your comments, it is clear to me that a betrayed spouse certainly is left without a legal remedy…. without a “day in court” …. against a man or woman who intentionally interferes with his or her marriage. Tiger’s wife can only renegotiate her prenuptual agreement… she has no direct remedy against the woman who intentionally, and seriously, caused her injury.

Yes, I call that an interesting idea and with which I have some serious problems. As noted above, this idea comes too close to an alienation of affection suit. Indiana is not going to give alienation of affection a revival. (Well, that is my opinion and I am sticking to it.)

Secondly, having some knowledge of third party interference with contracts, I see both a lot of technical/practical problems:

That the third party knew of the marriage contract (does not apply to Woods but if you are going to propose a legal remedy it has to apply generally).
The offended spouse will be getting money damages (this being a civil suit), but how will they be calculated?
Are the courts or legislatures going to import the justification and/or malice requirements?
Since money is the remedy in a civil suit, remember that this money will have to come out of the defendant's assets and/or income. You can get a big judgment but not be able to collect. I call that adding insult to injury.
Speaking of judgments, how many plaintiffs will want to put this kind of case to a jury trial? Might take a good look at Family Law Prof's Hope Cheating Spouse's Lover is Rich and especially the comment. I think that comment represents what will be the general reaction of your typical juror.

Yes, the idea is interesting but it is not a good idea.

Talk to Lawyer Day - Anderson and Madison County

2010-01-11T14:09:00.002-05:00

Talk to Lawyer Day is 1/18 at Mounds Mall, during the day. I will be there 10 am - noon. This is free. Please feel free to pass this information along to anyone who might benefit.

Is This a Trend? Publicizing Visitation Problems Online?

2010-01-11T10:06:00.003-05:00

Some may notice that I am now on Twitter - there is a feed from my Twitter posts in the sidebar. Others may not know what is Twitter - I tend to think of it as online chat on steroids. People opt in to follow what one writes.

One person following me goes by the name of wiferevolution. And what does wiferevolution write about? The problems that their new husbands have in enforcing their visitation rights. Although just starting out, they have the potential to reach millions.

here we go with the ex and her exchange drama. Why can't she just obey #court orders. #fathers_rights #divorce #child_custody 2:52 AM Jan 6th from web

So will publicity change how people behave? Maybe. I doubt that the ex-wives complained of in their tweets and on their blog will do anything to change their ways unless they get named. That means loss of wiferevolution's privacy.

Some day, someone will start naming names. Naming the parties, the lawyers, the judges and so on. Yes, that will move the tawdriness and the fighting out of the relative anonymity of the real world into the openness of the Internet. I can see a great deal of ugliness, probably some defamation litigation, but maybe also some benefits in that people will start thinking more about their behavior. No, it will not be cure all - some people will not care what anyone thinks.

As I write this, I have in mind a case coming up later this week. Opposing counsel and I have made every effort to get the mother to follow the visitation order. The parties agreed to mediation and everything went fine - for about a week. Saying my client is terribly frustrated is an understatement. His frustration only compounds my own - until a judge finally hears the case, there is nothing more for me to do. The idea that publicity would shame her into better behavior appeals to me. I suspect that wiferevolution finds writing about the ex-wife problems releases some of the frustration. I think that my client would find the same release, through a similar outlet, if he had the time.

Contemplating a Divorce? Be Prepared!

2010-01-11T07:02:00.001-05:00

When I started this blog,I did not think of its potential for preventive law. Most lawyers dream of being able to help prevent legal messes rather than just cleaning them up. You will find that I am going to keep noting articles that help educate you on how to be prepared for a case.

Minnesota Divorce & Family Law Blog has a very good list in its Staying Ahead of the Curve: 12 Proactive Steps To Take If You Are Contemplating Divorce

To help avoid the mess, we've assembled a list of 12 things you should gather to ensure that you have all of critical information in hand before your spouse has a chance to conceal, transfer or sell items. These include obtaining:

1. Copies of financial statements;
2. Copies of tax returns;
3. Copies of computer hard drives;
4. Copies of insurance policies;
5. Copies of wills and/or trusts;
6. Inventory of safety deposit boxes, with a witness;
7. Copies of deeds and/or titles to real property;
8. Copies of small business ledgers, financial journals, payroll, sales tax returns and expense account records;
9. Copies of appraisals for art, antiques, jewelry and collectibles;
10. Record the contents of each room in your home through video;
11. Copies of retirement account statements; and
12. Copies of your spouse's pay stubs for the last few months.

Investing some time in gathering these items will ensure that your spouse cannot take advantage of you during the divorce process. The denial of the existence of an asset is a fraud upon the Court. Once your spouse knows that we have all of the key information in hand, they are far less likely to engage in bad faith conduct and be honest in their disclosures throughout the process.

Read that last paragraph carefully as it explains why being prepared is a good thing.

Madison County Children in The Middle Seminar - 1/10 -4/10

2010-01-10T12:04:00.000-05:00

The Children in The Middle Seminar schedule for January through April of this year is here.

madison county children in the middle seminar 1-20010 to 4-1-2010

Overview of Indiana Divorce, Annulment and Separation Law

2010-01-10T11:52:00.003-05:00

Has Google widening what its searches find or is more stuff getting put online? I noticed an American Bar Association publication on Indiana Separation, Divorce and Annulment law under Google Docs. A good deal more formal than my Indiana Divorce Manual but still more calculated for the non-lawyer. Give it a read - and then for more detail come back here.

Indiana Parenting Time Guidelines Cases and Google Scholar

2010-01-10T11:05:00.002-05:00

Yesterday I decided to see what Google Scholar has to offer and to combine it with another project - collecting the case law for the Indiana Parenting Time Guidelines. Using the query "Indiana Parenting Time Guidelines", I got the following (after eliminating the not-for-publication cases and those that just mention the IPTG without discussing them).

So far I am far more impressed than when I first heard that Google was cataloging appellate court opinions. The results show not only the West citation but the internal pagination. (For non-lawyers that means citations can be made to the exact page as the West Reporter). There is also citator (can anyone say a free Shepard's?)

Downsides are three: 1) no headnotes and the results page is not overly helpful; 2) if you base your research on the West Key Numbers then you are very much out of luck; and 3) it is not clear how far back we can get opinions. When I tried to find a 1917 case (Ellingham v. Dye), I got a citation to the case but not the case itself.

On the other hand, not sure that these downsides outweigh the benefits and being free.

Note that this was a pretty simple search - there are options for advanced searching that should be looked at for a more complex search.

Let us get to the results. Where the case discusses a particular section of the Parenting Time Guidelines, I have put the reference in parenthesis.

2009
2008
2007
1. Tompa v. Tompa, 867 NE 2d 158 - Ind: Court of Appeals 2007 (preamble, flexibility)
2006
1. Beaman v. Beaman, 844 NE 2d 525 - Ind: Court of Appeals 2006 (See Ind. Parenting Time Guidelines, Scope of Application, 2 )
2. Shelton v. Shelton, 840 NE 2d 835 - Ind: Supreme Court 2006 ( section I(C)(3) )
3. Shelton v. Shelton, 835 NE 2d 513 - Ind: Court of Appeals 2005 ( section I(C)(3) )
2005
1. In re Paternity of GRB, 829 NE 2d 114 - Ind: Court of Appeals 2005 (I(D)(4), mid-week )
2004
1. AGR ex rel. Conflenti v. Huff, 815 NE 2d 120 - Ind: Court of Appeals 2004
2. MacLafferty v. MacLafferty, 811 NE 2d 450 - Ind: Court of Appeals 2004
2003
1. Malicoat v. Wolf, 792 NE 2d 89 - Ind: Court of Appeals 2003 (Indiana Parenting Time Guideline I.E.3 )
2. In re Paternity of KRH, 784 NE 2d 985 - Ind: Court of Appeals 2003
2002
1. Haley v. Haley, 771 NE 2d 743 - Ind: Court of Appeals 2002
2001
1. Kaplan v. Cunningham, 757 NE 2d 1026 - Ind: Court of Appeals 2001 (Guideline 1 & modification)
2000
1999

About the pagination, read Legal Research on Google Chrome

The other extension is called Google Scholar Legal Content Star Paginator. Without this extension, cases on Google Scholar display each page number to the left of the line in which the page begins. By contrast, with the extension, the page number goes immediately prior to the first word of the page. Of course, careful researchers should check the source material to be sure that the paging is accurate. Nevertheless, this extension should be appealing to researchers doing initial searches for case law on Google Scholar. The extension’s developer indicates how to integrate star paging on other browsers; but installing it on Google Chrome requires no instruction other than clicking an “Install” button.

I read this post as referring to the extension creating pagination conflicts.

E-Marriage - Coming Trend

2010-01-10T07:03:00.000-05:00

MLive.com published MSU law profs say e-marriages expand couple's rights raises all kind of issues about citizenship and federalism to make me categorize this as a pipe-dream but maybe not.

A Boston couple wanting to wed under Louisiana's covenant marriage law, or two New Orleans women seeking to wed in Massachusetts should be able to do so without leaving home, two law professors say.

Michigan State University's Adam Candeub and Mae Kuykendall have started the Legal E-Marriage Project, a clearinghouse for legislative proposals to establish "e-marriages."

"According to the team, the proposal refutes suggestions the state should get out of the marriage business and has the potential to alter the landscape of marriage culture wars," Michigan State law school spokeswoman Katie Gallagher wrote on the school's Web site.

Candeub and Kuykendall said states should let couples marry under the laws of whatever place they chose.

File this as one my less practical posts.

Judges Speaking Out on Unbundling Legal Services

2010-01-09T10:20:00.003-05:00

The New York Times published A Nation of Do-It-Yourself Lawyers written by judges on the subject of unbundling legal services. The judges describe what is meant by unbundled legal services and why it is a good thing in these paragraphs:

But this is only a beginning. It is essential that we promote other efforts to close the “justice gap.”
One such effort involves the “unbundling” of legal services. Forty-one states, including California and New Hampshire, have adopted a model rule drafted by the American Bar Association, or similar provisions, which allow lawyers to unbundle their services and take only part of a case, a cost-saving practice known as “limited-scope representation” that, with proper ethical safeguards, is responsive to new realities.
Traditionally, lawyers have been required to stay with a case from beginning to end, unless a court has excused them from this obligation. Now, in those states that explicitly or implicitly allow unbundling, people or businesses can hire a lawyer on a limited basis to help them fill out forms, to prepare documents, to coach them on how to present in court or to appear in court for one or two hearings.

I have written about unbundling legal services here and here. Responses to these articles have been nil.

I belong to a lawyers listerv where the subject of alternative fees and unbundling legal services comes up fairly often. We see this as the future of legal services, as empowering clients.

What seems to be truer is that the vast majority of clients show no interest in knowing about alternative fees or unbundling legal services. They watch television and hear about hourly fees and anything else confuses them. Until we educate clients about fees and their alternatives, the future seen by the New York judges remains out of reach and I think client frustration shall continue and may even increase.

Everyone, please, follow the link below to my older attorney fees articles and educate yourself.

Reading Family Lore's Divorce joins baked beans on the supermarket shelves makes me think the English have found a business model for providing unbundled services.

For the first time divorcing couples will be able to compare on one website a range of options from both the cheap online providers, as well as more traditional family law firms. Prices range from a DIY divorce at £69, up to a full solicitor managed divorce for £249.

I am not sure that I like what I think I see in the plan. That it might not provide the best services may not mean much in this current economy, but will clients miss what they do not know about? Do we need not to find a better way to educate clients about fees on this side of the Atlantic?

Court Files, Court Records and Getting Them

2010-01-09T07:22:00.001-05:00

Call this a reactionary post. Me reacting to Endangered Fathers' Different Uses Of Divorce Records with that is not so for Indiana.

Divorce records are maintained by the vital records department or in the health statistics department. Any person wishing to access these records may do so by placing a request with the concerned department holding the information. They can also obtain copies of the records which are uncertified copies if you are not one of the concerned parties in the divorce. Only concerned parties in the divorce can obtain a certified copy of the divorce certificate

No - our court records are keep by our county clerks.

No - you go to the county clerk, tell them the cause number and they get the file for you. (Excepting Marion and Hamilton Counties).

I got to say that I do not for certain about uncertified records being all a non-party can get - never had to deal with the issue.

The rest of the article raised similar problems for me. It is my standard operating procedure to give clients copies of everything. Fire and flood may get some but there should be no ordinary reason for one of my clients to need to go to the county clerk to get a copy of their file. Which is one of two reasons I have problems with this paragraph:

These records can help the individual ensure that the divorce has legally occurred. In many cases of uncontested divorces, the respondent party may not be aware of the settlement of the divorce. A divorce record helps in proving that the divorce has been finalized in the Court of Law.

Noooooooooooooooo. Here we get a Decree of Dissolution from a judge that is signed and sealed. We give it to the client. That same Decree goes out to the opposing party where there is a uncontested divorce. Also, our Chronological Case Summaries are mailed out to the parties who do not have lawyers. For all my grousing about Indiana, I cannot imagine a court system where a party is not aware of a case's end.

And in the context of Indiana, this just sounds bizarre:

When a person intends to marry again after a divorce, the divorce certificates should be provided to legally allow the person to remarry. It also helps resolve issues arising in the care of children born out of the marriage where divorce has taken place. A woman intending to change her name that carries the surname of the ex-husband can do so by providing these records.

If those problems were not enough to drive you crazy, a larger one looms. The Indiana Law Blog published Ind. Courts - "Indiana courts moving toward unified records system: But private firm pushes competing setup" Part I and here are what seem the choice bits:

That (excluding the "Part I") is the headline to a lengthy story today by Harold J. Adams of the Louisville Courier Journal. It begins:
After nine years and $51million spent, Indiana is progressing toward a statewide computer system that may eventually connect the records of all the state's 401 courts to each other, other state agencies and the public.
That would allow anyone with Internet access to check the history and status of any court case anywhere in the state. It would also give judges and attorneys a quick way to determine whether someone in their local court has had a role in other cases elsewhere.

But the move toward a single system isn't without its wrinkles. Even though the state system is free to counties, another vendor already handles court records for more than half of Indiana's 92 counties and is fighting to keep that business — and add more. * * *

Indiana's Odyssey system is run by the Indiana Supreme Court through the Judicial Technology and Automation Committee, known as JTAC and headed by Sullivan. The state wants to replace what Sullivan says is a mishmash of 23 different electronic case management systems in use across the state with a single, unified system.

“I and the members of our court — and I think most Indiana judges — are of the view that we would be much better off if all Indiana courts were using the same case management system,” Sullivan said. * * *

But while some counties are eager to connect to Odyssey, others have declared they won't participate.

Kosciusko County Clerk Jason McSherry wants no part of the statewide system.

“From a taxpayer standpoint, I don't have a lot of faith in anything the state or government runs,” McSherry said. “I think they ought to let the private sector take care of that.”

(Er, has no one informed the Kosciusko County Clerk that she is part of the government?).

I take the view that the legal system belongs to the citizens and since our tax dollars help fund it, then the information in and about those courts should be freely available without anyone making a profit off of what was created with our tax dollars.

More importantly, this article may make clear to everyone that no state wide data exists about our legal system but remains pretty much bound up in the county courthouses. In some ways not much different than in 1816 or 1851 or 1973. Think about that for a while.

(Since i derafted this post, The Indiana Lawyer published Harrison County joins Odyssey.)

Tips for a Better Co-Parenting in 2010

2010-01-08T07:55:00.001-05:00

I like DIVORCE LAW INDIANA's New Years Resolutions for better co-parenting enough to quote it at length:

The New Year brings an opportunity for a fresh start and new beginnings. It may also be a good time to consider making New Year Resolutions for becoming a better co-parent with your ex. Here are some suggestions from an article by Brette Sember at http://www.divorce360.com/:

Let us hope that we can all have a better 2010.

Support Too Much for Your Income?

2010-01-08T07:18:00.000-05:00

With the economy being bleak this past year and the future not so bright that any of us need sunglasses, Ask a Divorce Lawyer's What are my options when child support is causing me to go broke? should have some interest.

Question: I am the father of two children with two different women. The children are 14 years apart. I am currently paying 56% of my income in support and am in dire straights. Is there a law in the state of Illinois of the amount I have to pay? What can I do?

Answer: ***

.... Most jurisdictions allow the parties to come back to court for a modification of the original order if there has been a substantial change in the circumstances which would include substantial increases or substantial decreases in income. Many jurisdictions also have a definition for “substantial.”

Indiana provides for a change of support when there is continuous and substantial change. Losing a job qualifies for that kind of change.

That means getting a petition filed with a court. Which means either doing it yourself or hiring a lawyer.

Before you say you cannot afford a lawyer, ask yourself if you can afford going to jail for contempt.

Make some calls - see who will take payments, who uses flat fees, who offers unbundled services.

If that is still too much, then the Indiana Supreme Court's website has two forms that you can use yourself:
Modify child support with an agreement on all issues
Modify child support without an agreement on all issues

Before you do that, watch Family Matters: Choosing to Represent Yourself in Court.

New Indiana Supreme Court Case - CHINS Explained

2010-01-07T10:37:00.001-05:00

Since I rarely take Child in Need of Services (CHINS) cases any longer, I do not write about them. This new case from the Indiana Supreme Court decision written up by The Indiana Lawyer as CHINS finding establishes only status of child deserves attention.

Since CHINS cases do not receive a lot of publicity, I am quoting the article rather freely to give some background that might make this a bit more sensible:

The issue as to whether a child can be deemed a CHINS with respect to one parent, but not the other arose in the case In the matter of N.E., a child in need of services; N.L. (father) v. Indiana Department of Child Services, No. 49S02-0906-JV-270. N.E.'s father, N.L., appealed the finding that N.E. was a child in need of services and the juvenile court's decision to not place his daughter with him. N.E.'s mother has four children with four different fathers and the children were removed from her home after the Department of Child Services alleged they were CHINS because of domestic violence in the home.

The court then established N.L.'s paternity and placed N.E. in his custody, but removed N.E. to foster care a week later due to concerns about her paternal grandfather's drug problems. N.L. lived with his parents.

At a fact-finding hearing, a guardian ad litem stated N.E. had lived with her father for an extensive period of time and there was no doubt she was appropriately cared for there. The juvenile court found the children to be wards of the state, but made no specific findings as to N.L. or reasons for not placing N.E. with him.

The Indiana Court of Appeals was split in its reversal, ruling the state hadn't proved that N.E. was a CHINS with regard to her father. Judge Nancy Vaidik dissented, arguing a CHINS determination regards only the status of the child.

The justices agreed with Judge Vaidik that a CHINS determination establishes the status of a child alone. The conduct of one parent can be enough for a child to be adjudicated a CHINS, and to adjudicate the culpability on the part of each parent would be at a variance with the purposes of a CHINS inquiry, wrote Justice Frank Sullivan.

"Said differently, the purpose of a CHINS adjudication is to protect children, not punish parents," he wrote.

Clients often have run-ins or questions about CPS (Child Protection Services) and thus a possible CHINS cases. This case may explain the theory behind the statute that allows a CHINS court to take over, trump, any another custody proceeding.