A family law blog from that state just south of us here in Indiana. Okay, no wise cracks about Kentucky. Especially when it comes to this blog. The Divorce Law Journal has a different format from most of the other blogs I have run into (including this one) and a charming style. Ms. Skaggs emphasizes mediation and has a listing of her speaking engagements and upcoming national family law CLE. I really like that CLE listing as a benefit for attorneys visiting her site.
Wednesday, February 28, 2007
Relocation: Getting School Information
Thanks to the South Carolina Family Law Blog for a link to this Yahoo service that allows one to get information on schools.
One great problem with custody cases where one parent resides in Indiana and the other has moved out of state is getting information on the new location. Schools rank high on the list of information that might be useful.
However, there may be some weaknesses in the service. I checked our local schools and see that it does not list all of our public schools. Also, it appears to allow reviews in the same way that Yahoo Local allows for reviews. Still better than nothing.
A New Resource: Divorce Lawyer Source
I must admit I never heard of Divorce Lawyer Source till I saw a post on the Georgia Family Law Blog. So far it looks interesting but I have had no time to dig into it in any meaningful way.
Parenting Styles and Divorce
Another interesting post I found on the Georgia Family Law Blog. This time on how parenting style affect a child's reaction to divorce. While the study focuses on impulsive children, it may give parents something to think about.
I know from my own experience as a product of a divorce (from long before divorce was common), that adjustments can be hard on the children. Looking back at what I see in my practice and what I remember of my parents, it helps if the parents put the children first, have more maturity than rancor, and have huge amounts of patience.
Children and Divorce: Great Post on the Georgia Family Law Blog
Titled If You’re Divorcing, Don’t Sacrifice Your Children. Very much worth reading.
I wish I could put it as well as did the original writer. I am usually a bit more circumspect than is this writer. I think we are still driving to the same place, though. I want to know what motivates a parent to seek custody. Too often I have seen children used in power games as the means to hurt or manipulate the other parent. I will not take on a client who wants to indulge in these kind of games. I do not think that I have an ethical duty to support a client who wants to play these kind of games but I do think that I have an ethical duty to not injure the children in a custody case. If nothing else, my method allows me to sleep at night.
Terminating Parental Rights in Indiana
About once a year someone asks how to terminate the non-custodial parent's parental rights. The reasons seem to fall into some variant of the other parent being a bad person, the other parent has nothing to do with the child, the mother wants the other parent to have nothing to do with the child, or the custodial parent will not let the other parent visit the child.
The Indiana Code devotes an entire Article of the Family Code to terminating the parent-child relationship. None of the grounds I listed in the first paragraph suffice for terminating the parent-child relationship under IC 31-35. Even more to the point, nothing in IC 31-35 permits the unilateral termination of parental rights by one parent.
The parents can agree to a state agency or a private adoption agency taking the child and putting the child up for adoption. That cuts off the parental rights of both parents. That is the only voluntary termination allowed by the Indiana Code.
If the child is determined to be a child in need of services (CHINS) or a delinquent child, the Indiana Code provides a procedure for terminating parental rights. Only the the attorney for the county office of family and children, the prosecuting attorney, the child's court appointed special advocate, or the child's guardian ad litem can file a petition under this statute. The statute has very specific grounds for terminating parental rights. Again, the statute cuts off the parental rights of both parents.
A similar procedure to the second one exists where one parent commits one of the following crimes against the child:
(A) murder (IC 35-42-1-1);The child needs to have been less than 16 years old. Again, the other parent has no standing to bring this type of termination.
(B) causing suicide (IC 35-42-1-2);
(C) voluntary manslaughter (IC 35-42-1-3);
(D) involuntary manslaughter (IC 35-42-1-4);
(E) rape (IC 35-42-4-1);
(F) criminal deviate conduct (IC 35-42-4-2);
(G) child molesting (IC 35-42-4-3);
(H) child exploitation (IC 35-42-4-4);
(I) sexual misconduct with a minor (IC 35-42-4-9); or
(J) incest (IC 35-46-1-3)
Outside of IC 31-35 exists one other means of terminating a non-custodial parent's parental rights. That is IC 31-19-15-2 - a stepparent adoption.
(a) If the adoptive parent of a child is married to a biological parent of the child, the parent-child relationship of the biological parent is not affected by the adoption.Unless the non-custodial parent has not supported the child or had significant communication with the child for 1 year, then the non-custodial parent's consent is required for the adoption.
This information generally results in an unhappy client interview.
Yes, there are judges who will sign off on agreements submitted to them which purport to terminate parental rights. I never advise my clients to sign these agreements. The reasoning is quite simple:
- Indiana clearly states that child support is money held in trust by the custodial parent for the child.
- The custodial parent cannot voluntarily forgo child support (which is borne out by the Child Support Guidelines requiring a written explanation for any deviation from the Guidelines).
- Indiana law specifies the ways that a parent-child relationship can be terminated.
Stopping the Divorce
I was thinking about posting on this topic and then I saw this post on the Tennessee Divorce and Family Law Blog. Mr. Justice has some very good points but I was hit hard by this:
Sometimes clients think that their divorce lawyer will get mad at them if they change their minds, this is not true. I am always happy when a client decides to try and save their marriage.There is whole lot of truth in those two sentences. I cannot imagine a divorce lawyer who seriously practices family and is not happier that a client reconciled.
I would point out that Tennessee law is not Indiana law. Our statutes recognize reconciliation in two ways. First, the Petitioner can file a Motion to Dismiss:
IC 31-15-2-12 Motion to dismiss by party who filed action; counter petition; hearingI think our procedure sets out a quick way to determine if the other party sincerely wants the reconciliation.
(a) This section applies if a party who filed an action for dissolution of marriage under section 2 of this chapter (or IC 31-1-11.5-3(a) before its repeal) files a motion to dismiss the action.
(b) A party that files an action shall serve each other party to the action with a copy of the motion.
(c) A party to the action may file a counter petition under section 2 of this chapter not later than five (5) days after the filing of the motion to dismiss. If a party files a counter petition under this subsection, the court shall set the petition and counter petition for final hearing not earlier than sixty (60) days after the initial petition was filed.
The second place for a reconciliation to occur is at the Final Hearing:
IC 31-15-2-15 Final hearing; evidence; dissolution decree; continuance; motion for dissolutionI have never seen a court decide that there was a "reasonable possibility of reconciliation" but I have heard a commissioner tell a pro se Respondent that the only thing the commissioner was sure of was that the Respondent would be divorced that day. I tell my Petitioner clients that they control the decision of whether they will be divorced or not. Many have decided to reconcile before the Final Hearing but none have ever gone to the Final Hearing and been anything but adamant that the marriage was irretrievably broken.
(a) At the final hearing on a petition for dissolution of marriage the court shall consider evidence, including agreements and verified pleadings filed with the court. If the court finds that the material allegations of the petition are true, the court:
(1) shall enter a dissolution decree as provided in section 16 of this chapter; or
(2) if the court finds that there is a reasonable possibility of reconciliation, may continue the matter and order the parties to seek reconciliation through any available counseling.
(b) At any time forty-five (45) days after the date of a continuance:
(1) either party may move for the dissolution of the marriage; and
(2) the court may enter a dissolution decree as provided in section 16 of this chapter.
(c) If no motion for the dissolution is filed, the matter shall be, automatically and without further action by the court, dismissed after the expiration of ninety (90) days from the date of continuance.
A footnote to the counseling that the court could order, Indiana's Family Code devotes an entire chapter to the idea.
Things to do before a divorce
Thanks to Kemplog for the link to this post from Al Nye, the Lawyer Guy: A Dozen Things To Consider Before Filing For Divorce. While I have not had the same exact experience as Mr. Nye, this sounds too familiar:
You know the numbers. It's projected right now that about half of all new marriages end up in divorce. It's a horrible statistic that doesn't begin to suggest the emotional and financial strain that it puts on families. Other than the death of your spouse, divorce is probably the most stressful event you'll ever face. I've had women discussing their divorce in my office become violently ill. I've seen hardened fishermen cry in open court during their divorce hearing. Make no mistake – divorce is hell.Do read the entire post if you are contemplating divorce or in the middle of a divorce case. Good practical advice about the practical issues.
Cohabitation Agreements - same sex couples
I have been spending some time here discussing litigating cohabitant claims. The American Bar Association's GP Solo e-zine has an article on agreements between same-sex partners.
As the article states, these agreements are critical for same-sex couples. However, I think they are also important for heterosexual couples. While same-sex couples cannot marry in Indiana and thus have the protections of Indiana law, those heterosexual couples who choose not to marry suffer the same disabilities under Indiana law as same-sex couples. Without an agreement, the only option is litigation.
Why I say do not do a divorce with real estate by yourself
This report from the Noblesville Ledger is not about a divorce but sure shows how tricky it can be for lawyers to deed property properly.
Regardless of who owned the land originally, county attorney Mike Howard said the trustee's lawyer had the wrong land description when the township's title was entered, so the commission's title was accepted last summer. He said the commission now has the right to the land, and asked Demaree if he wanted to evict the township.
When Demaree did not answer, Commissioner Steve Holt told Howard to void the township's title.
I seriously suggest anyone thinking of doing their own divorce and having real estate read this article closely. Yes, a lawyer screwed up and that rarity is what made it news. How often would a non-attorney make the same or similar problems?
Social Security links
Special Needs Children and The U.S. Supreme Court - news
While not probably technically within the brief for this blog, I really think this is important news that does affect quite too many people. At issue is whether parents should be able to sue a school for failing to comply with the IDEA (Individuals with Disabilities in Education Act).
Parents unhappy with a district's plan can appeal the decision through an administrative process. If they remain dissatisfied, they can file a civil lawsuit on their child's behalf, federal courts have said.
At that point, however, they must find a lawyer, the 6th U.S. Circuit Court of Appeals ruled in the Winkelmans' case. People who are not lawyers can represent themselves in court proceedings, but not other parties. The appeals court said the law requires the child to be the plaintiff.
The Bush administration and 12 Democratic lawmakers, including Sen. Edward Kennedy of Massachusetts, have sided with the Winkelmans. They contend Congress clearly intended the special education law to allow parents to go into court without a lawyer's help.
The AP report can be seen here.
Saturday, February 24, 2007
Enforcing Child Support and Relocation
I have had relocation on my mind lately. (See this post and this one and this one). I noticed the following thought it needed pointing out in the context of relocation:
Unlike moving the entire case (see this post), this statute allows for the support enforcement in another county. The statute does not make this distinction, but it would be appear useful when only one parent has moved from the county where the child support originated.
IC31-16-12-12 Registration of child support order
(a) This section applies if:
(1) the parent who is entitled to receive child support; and
(2) the parent who is ordered to pay child support;
are both present in Indiana.
(b) The parent who is entitled to receive child support may register a child support order issued by another Indiana court or foreign court for the sole purpose of enforcement in accordance with IC 31-18-6-1 through IC 31-18-6-8 of the Uniform Interstate Family Support Act.
This same statute gets duplicated somewhat at IC 31-16-13-1 ("Registration of child support order"):
If:
(1) the parent who is entitled to receive child support; and
(2) the parent who is ordered to pay child support;
are both present in Indiana, the parent who is entitled to receive child support may register a child support order issued by another Indiana court or foreign court for the sole purpose of enforcement in accordance with IC 31-18-6-1 through IC 31-18-6-8 of the Uniform Interstate Family Support Act.
Enforcing Support: Suspending Licenses, A Checklist
Indiana law permitted the suspension of a driver's license for many years. I recall only one case in all that time where I filed a petition to suspend a license and then the suspension was abated so long as the payor was current in his child support.
Why abate the suspension? Because he needed the license to get to work and my client needed him working to get the money needed to pay his child support. I think that was the case where I learned some remedies do better to wake up the opposing party than to punish them fully. I actually got that phrase from my client - she just wanted to wake him up. We did, too.
The issue of suspending a driver's license came up again and I decided it might be a good post to list the licenses which can be suspended for failing to pay child support:
- A driver's license.
- Any professional license (including applicants for a professional license).
- A horse racing commission or gaming commission license.
- A insurance, recovery, or bail agent's license.
I think that an income withholding order pretty much trumps the need for a license suspension. I do not think that many cases will be stayed other than with an income withholding order. After all, it is not too often we see people making lump sum payments of $2,000.00 or more.
Enforcing Custody or Parenting Time: A Surety Bond
Amongst the more obscure parts of the Indiana Code on Family Law is IC 31-17-3.5. This section possesses the austere title of "Security to Secure Custody and Parenting Time Orders". I have never seen this remedy used and I have not had what I would consider a proper opportunity for its use.
The statute has all the virtues of simplicity. It sets out the language for a surety bond, that the bond is to be from a commercial surety or a freeholder of real estate, and defines the uses for the bond upon forfeiture.
I had two cases in the past few years involving visitation where I looked at this statute. We repeatedly file contempt citations against the custodial parent for violating the Parenting Time Guidelines. Both cases had the custodial parent would switch visitation without make up time. So much for our self-enforcing Parenting Time Guidelines. I paused but did not stop at this remedy.
Why did I not think this statute offered any help to my clients? Neither custodial parent owned any real estate and neither was employed. In short, the offending party lacked the ability to obtain a bond.
Still, I wonder if this statute might offer some solution to the more problematic visitation problems. The statute itself gives a hint towards the problems sought to be solved in how the proceeds from the bond are to be disbursed:
(1) reimburse the nonviolating party for actual costs or damages incurred in upholding the court's order;I hear an echo here of IC 35-42-3-4, which is felonious Interfering with Custody. That statute has the following provision:
(2) locate and return the child to the residence as set forth in the court's order; or
(3) reimburse reasonable fees and court costs to the court appointed trustee.
(e)If a person is convicted of an offense under this section, a court may impose against the defendant reasonable costs incurred by a parent or guardian of the child because of the taking, detention, or concealment of the child.Which leads to the question, why use the bond statute when there is a criminal statute? Well, the bond statute seeks to prevent the need for a criminal court to impose the costs of IC 35-42-3-4(e).
Where I can see the bond being used defensively are a very limited number of cases. First, we need grounds for the bond - a parent who creates problems with visitation. Second, the problem parent needs the wherewithal to pay for a bond. I would also add a third, more ethereal, item but not as a requirement. I would prefer a non-custodial parent who will find the bond a deterrent to bad behavior. Unfortunately, I can easily imagine the scenario where a bond is in effect and the non-custodial parent remains undeterred from interfering with custody.
Purchasing the bond bothers me. I can think of a situation where, if the issue arises during a divorce, marital assets could be assigned for purchase of a bond.
I can also imagine where this statute could be used offensively. I presume this upon having an amendable client with the funds to purchase the bond. We still need the bad behavior of the other parent regarding visitation. When the problem parent misbehaves the bond will be in place as sort of an insurance policy.
Meanwhile, the statue does moulder a bit as an interesting curiosity. It does seem to hold out the hope that economics might force rational behavior. I may be feeling especially cynical this evening but as most of us who do practice family law, rationality can be a scarcity in these cases.
Indiana Child Support: What if both parents move from the county?
You petition the court to transfer the case to the county where the child now lives. The statute applies to divorce cases, support cases, legal separation and paternity cases. The three requirements are: 1) custodial parent moves to another county; 2) non-custodial parent lives in another county or cannot be otherwise found; and 3) the custodial parent petitions the court which entered the order for support for a transfer.
After filing the petition, notice and a hearing are required by the statute. While the statute uses "may" in describing the original court's power to transfer the case, I cannot think of a good reason for not transferring a case. The custodial parent pays a new court cost to the receiving court and that is all - except collecting the child support.
The custodial parent can transfer a case as often as necessary for the child's best interests.
In the old days, a certain firm would file divorces in Marion County even though the parties lived in Madison County or elsewhere. These divorces included those with children. This firm marketed to those seeking an expensive divorce. What was inexpensive for some was anything but inexpensive for those with children. In many, many ways this created a headache for everyone. Getting the case back into a county where enforcing the support order could be efficiently enforced was cumbersome. This statute may have been a reaction to this kind of scenario, but it also makes life easier for those moving from Anderson to Evansville or from New Albany to Gary or Fort Wayne to Lafayette.
One last point, the statute does not require a hearing if both parties file a joint petition. A rather easy way to lower the costs for the parents.
Cohabitation litigation- A Checklist
This list just hits the high points. There should be follow up questions to get the details. If you have not read my earlier post here on cohabitation, you should do so. That post describes where these questions came.
1. The length of time the parties lived together.
2. The parties’ income presently and over the time they lived together.
3. If either party is self-employed.
4. Any financial contributions by either party to the other’s business.
5. Any financial contributions by either party to the relationship.
6. Any children born out of wedlock and whether a support order was entered.
7. The property the parties acquired while living together.
8. If the property is titled, then in whose name it is titled.
9. Who has possession of what property?
10. The value of the property
11. Why the relationship ended and who ended the relationship.
12. If money was commingled, any writings showing instructions by one party to the other about spending the first party’s money.
13. If money was commingled, how the money was spent.
14. Any indications - oral or written - that the party supplying the money told the party paying the bills that only certain bills were to be paid or that they expected the money repaid?
Living Together in Indiana - And then breaking up
What to do if you are living with someone, the relationship ends and there is property to divide? With married people, the answer lies in the dissolution of marriage statutes. Without a written agreement, Indiana has nothing comparable for those unmarried persons living together. Indiana stopped recognizing common law marriages over forty years ago. Palimony does not exist in Indiana. Few will enter into a cohabitation agreement. However, case law does offer some protection for unmarried persons who have not entered into a cohabitation agreement.
Indiana case law consists of three cases: Bright v. Kuehl, Turner v. Freed, and Fowler v. Perry. To get back money used by one side of the unmarried relationship, the Indiana Court of Appeals held that unmarried couples may sue one another under the theories of implied contract and/or unjust enrichment.
For an implied contract case, the plaintiff must prove "...that the defendant impliedly or expressly requested the benefits conferred.." For unjust enrichment, "...a plaintiff must establish that a measurable benefit has been conferred on the defendant under such circumstances that the defendant's retention of the benefit without payment would be unjust."
Put simply, the person who is being sued for an unjust enrichment claim must have gotten more of an economic benefit from the relationship than the other person. For a successful implied contract suit, the person suing must have given notice that they expected repayment.
All three cases involved the commingling of funds and the acquiring of property. In two cases, the boyfriends sought repayment of money commingled with the girlfriend. They did not win. In the third case, the girlfriend sued and won. All three cases share two common factual patterns: 1) the boyfriend kept the majority of the property or received a substantial economic benefit from the relationship, and 2) the female had the lesser of the economic/financial resources in the relationship.
I will be posting a checklist for cohabitation litigation but that checklist is built upon these three cases. I do not want to suggest that these cases will be easy to try. Both Bright and Fowler were originally judgments for the plaintiff which were reversed by the Court of Appeals. Nor should I be taken as suggesting that these cases dictate a judgment for the female. I do think the following points need to be taken into consideration when considering a cohabitation suit (and they are listed without consideration of ranking):
- It will be extremely difficult to win on an unjust enrichment theory when the defendant has a lower paying job or fewer assets than the plaintiff.
- When the plaintiff has more economic/financial resources than the defendant, it looks like bullying and therefore inequitable.
- These are equity actions and the parties' motivations do count.
- If one party did not intend to benefit the other unconditionally, where is the evidence of that intent?
- How much money about here? Is it a substantial sum for the parties?
Relocation: how it affects more than custody and the relocating parent
I have posts here and here detailing more on how a custodial parent relocating may affect child custody. However, the statute requires attention from anyone with parenting time rights or grandparent visitation rights. The court has the power to modify any of these rights - if the person with those rights requests a modification from the court. The court will do nothing on its own.
I also read the statute as requiring notice from the non-custodial parent. The statute starts with this language: "[a] relocating individual must file a notice of the intent to move with the clerk of the court...." The statute's remainder contains a grab bag which tilts the matter towards custodial parents but not so much as to absolve the non-custodial parent of giving notice of any change of residence. While the statute penalizes a custodial parent who moves (see my post here), the non-custodial parent faces no comparable penalty. How the non-custodial parent will be penalized is by increasing his or her costs to exercise parenting time.
The statute provides protections if there is a risk of substantial harm to the parent or child by disclosing any of the required information. Thus, a custodial parent who believes they faces harm from another has no justification in moving and not giving notice.
More on Relocating and Custody - Timeline for giving notice
I have already written a bit on the (fairly) new relocation statute here. That post concerned itself more with when custodial parents should give notice of relocating. Here, I want to point out the statute has the potential for a rather serious penalty for custodial parents who do not give the proper notice. Without giving proper notice, the court can order the child not to be moved out of state or order the child returned to the non-custodial parent pending a hearing . Therein lies the major problem for a relocating parent who has custody of children: grounds for a change of custody. It also poses a rather ugly surprise when one has moved and receives an order to turn the child over to the non-custodial parent or even just to return to court for a hearing.
For those of you who do not have a divorce case but a paternity case: this statute applies to you also.
I have had cases where the custodial parent removed the child from the state without any notice to the non-custodial parent. I have had other cases where the custodial just moved across town without telling the non-custodial parent. That the statute hopes to end this kind of behavior is a very good thing. At the present my concern is with those people who move from one rental to another or who acquire another home within the same area and then find themselves fighting an injunction because they failed to give the proper notice of the move.
The following charts when notice must be given, what the notice must contain, and the time in which the non-relocating individual must respond.
| When to give notice | What Information to Give | Time for response |
| Not later 90 days before moving - unless not able to do so sooner | (A) The intended new residence, including the: (i) address; and (ii) mailing address of the relocating individual, if the mailing address is different than the address under item (i). (B) The home telephone number of the new residence. (C) Any other applicable telephone number for the relocating individual. (D) The date that the relocating individual intends to move. (E) A brief statement of the specific reasons for the proposed relocation of the child. (F) A proposal for a revised schedule of parenting time or grandparent visitation with the child. (G) A statement that a parent must file an objection to the relocation of the child with the court not later than sixty (60) days after receipt of the notice. (H) A statement that a nonrelocating individual may file a petition to modify a custody order, parenting time order, grandparent visitation order, or child support order. | 60 days after receiving notice |
| Not later than 10 days after the relocating individual learns of the information to go into the notice and not later than 30 days before moving. | Same information as above | Same as above |
Wednesday, February 21, 2007
Annulment in Indiana
Let me explain a few things about annulment in Indiana:
It is certainly not a substitute for dissolution of marriage.
Annulment differs greatly from divorce. Annulment does not dissolve the marriage. Annulment means there never was a marriage.
Annulment has very specific grounds to prove. One cannot just appear before the judge and say that the marriage is irretrievably broken. The grounds for annulment divide into two broad categories.
The first category requires that the petitioner was under 18 years or was mentally incompetent to marry. If the potential client was past 18 years of age when married or appears mentally competent, that leaves the second category of annulment cases.
The second category requires fraud on the part of the non-petitioning party. That fraud must have lead to the petitioner marrying the fraudster. If that were not enough of a difficulty, the statute states that the petitioner living with the spouse after discovering the fraud is an affirmative defense for the respondent.
If you can get past these hurdles, the procedure follows those of divorces. Annulment is another narrow type of legal action. Maybe even more narrow than legal separation.
It has been a while since I had a divorce client inquiring about annulment. Used to be, annulment would come up about every eighteen months or so. I was always curious about the interest in annulments. I never got a good answer for the interest in annulment. When I asked, no religious reasons were offered. I got a vague impression that someone told them that it might be easier or more palatable than a divorce. Some times I was left wondering if someone had watched The Wives of Henry the Eighth one too many times. When I explained annulments, their interest withered.
The liability of married people for their spouse's debts
I cannot generally fault the online Indiana Code that the State of Indiana has on its website. However, today I can because I really wanted to check the legislative history of a statute and I cannot. The online version only shows the date that Indiana revised Title 31 back in 1997. That it does not have the full legislative history shows a basic good sense. For the statute I am interested in, I really do not need to know the date that the statute first passed into Indiana law. I know it has been a very long time. It is just that I get asked quite frequently about a wife's or a husband's responsibility for a debt of the other and I would like to be able to say "Since 18- or 19-, Indiana law has been ....." Oh, well, I will take a look at the courthouse library. Following here is the law on the liabilities of married couples:
IC 31-11-7-1Bottom line: if one incurred a debt only in their own name, then the other cannot be liable for the debt. However, if they both incur a debt in both their names, then both are liable.
Abolition of legal disabilities of married women to make contracts
31-11-7-1 Sec. 1. All legal disabilities of a married woman to make contracts are abolished.
As added by P.L.1-1997, SEC.3.
IC 31-11-7-2
Married women's property rights
31-11-7-2 Sec. 2. A married woman has the same rights concerning real and personal property that an unmarried woman has.
As added by P.L.1-1997, SEC.3.
IC 31-11-7-3
Tort liability of married women
31-11-7-3 Sec. 3. A married woman is liable for torts committed by the woman.
As added by P.L.1-1997, SEC.3.
IC 31-11-7-4
Husband's immunity for wife's contracts or torts
31-11-7-4 Sec. 4. A husband is not liable for the contracts or torts of his wife.
As added by P.L.1-1997, SEC.3.
Legal separation in Indiana
Every once in a while I get asked about legal separation. In just over nineteen years of practice, I have filed only one petition for legal separation (Update 7/31-09: make that now two) Why so few? It seems when I finish explaining to the potential client what they get from a legal separation that they always ask me why they should want to go through all of that? My first legal separation case was converted to a divorce.
I think some people confuse separating from the spouse as part of the divorce with legal separation as separation as a kind of legal action. In a divorce, separation means the date that the parties split up and the date of separation has relevance to division of property. All which occurs before filing anything with a court.
Legal separation as a kind of legal action begins with filing a Petition for Legal Separation with a court. Most of the requirements parallel those of a dissolution petition (residency, for example), but there are three major differences:
- The marriage is not irretrievably broken but "conditions in or circumstances of the marriage make it currently intolerable for both parties to live together."
- Instead of the marriage being dissolved, "the marriage should be maintained."
- A legal separation is only effective for one year.
Such is legal separation in Indiana. The procedure does have its uses so long as its limitations are understood.
7/31/09: Since writing the above, I have written more about legal separation. Follow the link below that says "legal separation" or see here and here and here.
How long do I have to live in Indiana before I can get divorced?
We call this the residency requirement. You have to live in Indiana for six months and three months in the county where you are filing the divorce.
For the vast majority of cases, there ends the questions. However, in a very few cases there can be more questions. Those cases where the other party moved out of state or the potential client moved into Indiana with children or property out of state require more questions about whether Indiana is the best place for filing divorce. For that scenario see this post.
My spouse lives outside of Indiana - can I file in Indiana?
Sure, you can file in Indiana if you meet the residency requirements. The question is should you?
- Can you afford to file a separate case in the other state for enforcing the Indiana Decree?
- Can you afford to leave personal property to the care of the other spouse?
- Are there children?
- Do you need information from the other state to set support?
- Will you have problems with visitation that will need the court to enforce the Parenting Time Order?
One consideration underlies these questions - a court's power ends at the state borders. The practical overtakes the legal sometimes. One can overlook the problems posed in the questions above by ignoring the limitations of the court's power to fully exert itself as it would if the parties were both Indiana's borders. Just do not expect to be happy with the results of these limits.
Tuesday, February 20, 2007
New Jersey civil unions law in effect now and New Jersey will recognize other jurisdictions
Story here about the law taking effect today and about New Jersey's signaling that it will recognize civil unions and gay marriages from other jurisdictions here and here. This topic is not something I have followed closely. Indiana law does not recognize common law marriages, civil unions or palimony. Instead, Hoosiers have decided they need a constitutional amendment restricting how people arrange their intimate relations. One that poses for heterosexual couples the potential for great harm. See here for more of an explanation.
I hope this will be as close a political rant I put on this blog.
Indiana prenuptial agreements
Nothing seems so unappealing to a prospective bride and groom as a prenuptial agreement. True love sneers at the thought of such materialistic matters as property and protecting it from a bad match. Contemplating such things seems akin to admitting the marriage is a failure before speaking the vows.
For some, if not most, marriages these thoughts are not wrong. For others, not having those thoughts can be worse than wrong. This writer articulates a very good reason why prenuptial agreements may be beneficial to a marriage:
While the mention of a prenuptial agreement may seem negative or too personal, bringing up the topic with your wealthy clients may open a healthy exchange about their financial goals while also strengthening their impending marriage. Most people would imagine that negotiating a prenup is potentially divisive, but, in fact, it may be the best way to evaluate a couple’s goals on money and property while eliminating misunderstandings that could cause a future conflict. It also complements a couple’s estate planning efforts.The common presumption that one needs property for a prenuptial agreement is correct. Also correct is the common preconception that prenuptial agreements are for when things go wrong in the divorce. I suggest putting these two ideas together; if things go wrong is there any property you do want future spouse not to have?
Let me also introduce another player in this domestic play. Children from a prior marriage. You may not want the property for yourself but for your children. Again, from Ms. Hirshman:
Despite its negative reputation, there are times when a prenuptial agreement may be advisable—for example, when husband and wife are marrying late in life and each brings substantial assets to the relationship. A spouse who owns a business or may be expecting an inheritance might use a prenup to direct those assets to his or her children or grandchildren in the event that the marriage is cut short by divorce or death.Keeping in mind that divorce and death would put each individual’s assets at risk, it is reasonable to suggest that divorcing without a prenup is somewhat akin to dying without a will. If explicit instructions from each spouse are absent, the courts will apply their own formulas for deciding who gets what—formulas that will probably not sit well with either party or their heirs.
One can disinherit children but not a wife. A prenuptial agreement can preserve assets for one's children. Let us also remember that children from a prior marriage can disrupt a second (or a third or a fourth) marriage. I know of circumstances where a prenuptial agreement eased those tensions.
Implied above is the presumption that prenuptial agreements interest only those previously married. I do find that most people previously married are less inhibited about prenuptial agreements and have the assets to lower those inhibitions even more. However, another trend needs taken into account. This is from U.S. News & World Report:
The current boom in prenups makes perfect sense. "Couples are looking at marriage like a business contract for several key reasons," says Dubin. First, they are getting married later in life than previous generations, often in their mid-30s. By then, they have accumulated some wealth in 401(k) retirement plans and IRAs and often a home or a condo. "People are shocked when they realize that an IRA in their name is really a marital asset," she says.For those wondering about Indiana includes in the marital pot, take a look at my post here. Those previously married know what goes into the marital pot. As the quote above makes clear, newbies get what might be called sticker shock.
So what does Indiana law allow you to do with a prenuptial agreement? You determine your rights to:
(A) buy;That list includes dividing property upon:
(B) sell;
(C) use;
(D) exchange;
(E) abandon;
(F) lease;
(G) consume;
(H) expend;
(I) assign;
(J) create a security interest in;
(K) mortgage;
(L) encumber;
(M) dispose of; or
(N) otherwise manage and control;property.
(A) legal separation;While the prenuptial agreement can modify or eliminate spousal maintenance (on maintenance, see my post here), the agreement cannot adversely affect the right of a child to support.
(B) dissolution of marriage;
(C) death; or
(D) the occurrence or nonoccurrence of any other event.
I never suggest that the parties write their prenuptial agreements. Lawyers can get in enough trouble with prenuptial agreements. However, I think the client must be involved in the drafting process and the following advice from the U.S News and World Report article is sound:
Writing a prenuptial agreement isn't cheap. It will cost you anywhere from $1,000 to tens of thousands, depending on how complicated it is. To save some bucks, you might draft an agreement ahead of time. You can hire a mediator for a fee typically below what you'd pay for a lawyer's time. Or you can write a preliminary pact together with help from a guidebook such as Equality in Marriage's The Commitment Conversation($10). Then you can meet with your lawyers to fine-tune the document.I would comment that "cheap" is relative. For things may go wrong with the marriage and then the costs can skyrocket as the division of the property is left to the discretion of the trial judge. The California Divorce and Family Law Blog has a few other suggestions, also.
As with many things, the real question is whether an ounce of prevention is worth a pound of cure - a prenuptial agreement offers a tool for dealing with the financial underpinnings of a marriage as much as protecting assets from a golddigger. As such, it is worth considering by those in tax brackets well below Sir Paul McCartney.
Third Party Custody in Indiana - Part 1
Custody cases usually involve the parents. When a person not the parent seeks custody, we call this third party custody. Indiana court have wrestled with this type of case for years. What follows is only an introduction to the law in this area.
Indiana has a common law rule that "in a custody dispute between the child's natural
parent and a third party, it is presumed that it is in the best interest of the child to remain in the
custody of the parent" (In Re Marriage of Simmons (1985), Ind.App., 487 N.E.2d 450, 454). "[T]his presumption serves to protect the parent's right to be free from unwarranted interference by third parties into the parent's fundamental relationship with the child."
Because of this presumption, Indiana law also imposes a more strenuous burden of proof on a third party who seeks to replace the natural parents as the child's legal custodian. The third party must prove its case by clear and cogent evidence. Parents have only the preponderance of the evidence burden of proof when the matter is only between themselves.
The third party must prove by clear and convincing evidence that the parent is unfit or have acquiesced in or voluntarily relinquished custody to the third party. Such evidence rebuts the parental presumption and the third party moves to the next step in its case. That next step is proving that the child's best interests will be better served by placing the child in the custody of a third party compared to the natural parent.
If the third party wins, the third party has a even less stable custody order than would a parent. A parent may ask for a modification and the parent will generally have less of a burden of proof than the third party. For when a parent initiates an action to regain custody of a child that has been in the custody of another, the burden of proof stays with the third party. (In Re Custody of McGuire (1985), Ind.App. 487 N.E.2d 457, 460-1, citing Hyatte v. Lopez, (1977) 174 Ind.App. 1497, 366 N.E.2d 676, trans. denied).
Monday, February 19, 2007
Enforcing the Decree: Generally
If the court orders something done by either party and it is not done, you need to know that the court does not keeps tabs on us or take steps itself to enforce its order. The parties enforce the court’s orders. There are several tools for enforcing the court’s orders:
1. Contempt of court.If you do not obey the court’s order, then you can expect any of these being used against you. If the other side does not obey the court’s order, you must let me know.
2. Income withholding orders or wage assignments for support.
3. A bond to secure custody or parenting time.
4. Garnishment
5. Any other method that might be used to collect any other judgment - of which there are many but these depend on the facts of the case.
Preparing for the divorce
I had this question asked me in the past few months and I thought I had a pretty good explanation until I found these posts at the Kansas Divorce & Family Law Blog from the Alabama Family Law Blog, and the Oklahoma Family Law Blog.
Preparing for a Divorce: Step 1 - Find a Wise Guide
Should I move out of the house?
(I would say that the paragraph on what to do about moving out if there are children contains some great ideas that I never really had thought of before reading this. On the other hand, I do think that it has been a very long time since I had a factual situation where a mother was forced from the home. Indiana's protective order statute has dealt with those situations rather handily.)
Preparing for Divorce: Step 2 - Make an accounting of the family finances
I suggest reading this if you are contemplating a divorce or e-mail this post to anyone you think who might be thinking of divorce and make sure they read them.
USA Today article on Parental Alienation Syndrome
I picked up the link for this article from Grant Griffith's Kansas Family & Divorce Lawyer Blog. I wish I could say it was the latest tool in divorces.
I had a case in 1999 where the psychologist made this diagnosis of my client's wife. The judge felt certain that there was something wrong with my client and kept refusing visitation. When he finally did order the visitation that he promised, the wife took off with the child. We managed to get the judge to modify visitation and had the local prosecutor pursue her. My client got the child back and the mother may still be on probation.
Not a pretty case and for a long time we had no idea how it would turn out.
Sunday, February 18, 2007
Changing your mind about not changing your name?
Sometimes I get calls about name changes. Women have the right to change their name during a divorce but do not always take advantage of the law. Then sometimes they decide they wish they had changed their names.
Adults can change their name with fair ease. Only incarcerated persons cannot change their names. (IC 34-28-2-1.5) The Indiana Judicial Center posted a self-service form for adults here. If you want to save a few dollars, then you might want to try this yourself.
One thing about name changes, they require notice in a legal publication. It is just about the only kind of legal action I can think of with this kind of requirement outside of probate matters. This creates the kind of pain in the lower back that can screw up the whole case. I do think it worth seeing what a lawyer will cost you. I know that I do not charge much for this type of case and I think you might be surprised at what attorneys charge for a change of name.
2007 Madison County Children in the Middle Seminars
The schedule for the resto f the year:
These take place at the Anderson Public Library.
Tuesday, Wednesday & Thursday, 6:30 p.m. to 8:30 p.m.
Saturday 1:00p.m. to 3:00p.m. or 3:00p.m. to 5:00p.m.
Limit of 15
February
Sat. 24th
Wed. 28th
March
Wed. :7th
Sat. 10t1I
April
Wed. 11th
Sat. 14th
Wed. 25th
May
Sat. 5th
Tues. 15th
Wed. 23rd
June
Sat. 2nd
Wed. 6th
Wed. 27th
July
Tues. 3rd
Wed. 11tb
Sat. 28th
August
Wed. 22nd
Sat. 25th
Thurs. 30th
September
Wed. 19th
Sat. 22nd
Wed. 26th
October
Wed. 3rd
Sat. 6th
Wed. 10th
November
Sat. 3rd
Tues. 6th
Wed. 2Pt
December
Sat. 1st
Tues. 4th
Children & inheritances & lessons from Anna Nicole Smith
Along with the snow that shut down our courthouses and schools came the media circus following the death Anna Nicole Smith. I usually avoid these kind of stories but with courthouse and office shutdown I could not seem to miss the story. Even NPR was in on it! So, I assume everyone knows the outline of the story and I can pass onto a more interesting item.
For me Ms. Smith's Last Will and Testament was very interesting. She left everything to her son and her son predeceased her. Nothing to the newborn child with the unknown father. Wills, Trusts & Estates Prof Blog analyzes the Will here.
Nothing keeps a parent from disinheriting a child - so long as the proper procedure is followed. At the simplest and with an existing child, name the existing and say they get nothing. What I am finding unusual is leaving out the unborn child. I suspect some explanation for that hangs upon the identity of that child's father.
Let me try to explain my perspective here.
The usual estate planning clients usually have one goal: they want to make sure that their money goes intact to their heirs. Divorced clients sometimes have an additional goal of making sure that the former spouse cannot get their hands on the money.
While a guardianship will protect a child's assets till they reach age 18, this a bit of a clumsy approach. First, some people do not want their eighteen year olds having absolute access to a bunch of money. Second, someone has to come forward and request a guardianship. Creating a trust is more complex but a trust avoids the problems of a guardianship.
So, the tools were quite well within the reach of a woman with the financial means of Anna Nicole Smith. Maybe we will learn why she chose to completely disinherit the baby. All I can do is be very surprised.
D.I.Y Divorce - pros and cons
During our being snowbound almost all of last week, I caught up with some Law Guru inquiries. Two had something in common with this post's topic. One claimed she had not enough money to hire an attorney for her divorce. The other claimed not enough money to pay an attorney for help with their uncontested divorce. The first exemplifies what happens when one ought to have gotten an attorney and did not. I told the second case that they were likely to create very large problems for themselves. I heard nothing further from them.
Generally speaking, I think people with children, real estate, and or pensions ought to get themselves to an attorney before the divorce is final. I also think most people receiving this advice think I am being wholly self-serving in looking for a fee. I doubt that I would have taken either of these cases, so the reason is not just a fee. My reason is that I really hate to see a botched job and having to explain how much work (and cost) it will take to fix the problem - if the problem can be fixed at all. I have a small post on Indiana law regarding attorney fees here. Please read this before deciding that you cannot afford an attorney.
This afternoon I spent time seeing what I had missed on the web between work and shoveling snow. I found two different blogs with posts that cover this territory.
Thanks to Grant Griffiths who posted the link to this South Carolina Family Law Blog post. This is definitely the post for not doing itself and it is better written than anything I have been able to do on the subject.
When faced with these important issues, most people want to seek the advice and assistance of an experienced, competent attorney. Ideally, you want to find an attorney who is not only trained in and very knowledgeable of the law, but who also has experience in preparing documents, courtroom procedure, settlement negotiation, and other aspects of Family Court cases. Hiring an attorney will help things to run more smoothly in your case and will increase the likelihood of your receiving a favorable result in your case.
Although it is possible to represent yourself in Family Court, it is not advisable in the vast majority of cases. Should you choose to represent yourself, the Court will not be able to assist you with your case in any manner. You will be held to the same requirements of the other party’s attorney with regard to the law, procedure, and all other issues. Should you mishandle your own case due to lack of knowledge or lack of skill, it is unlikely that an attorney will later be able to undo your mistakes.
Please read the whole post. It articulates very well why lawyers cringe when people do their own divorces.
I distinguished divorces with children, real estate and/or pensions. I probably ought to articulate the reason for distinguishing those kind of cases. Bluntly put, those cases involve the possibility of injuring third parties as much as yourselves. That possibility raises many issues with me about people who are doing their own divorces. Some of them being impolite, I will not voice them all here. However, I will mention one - and that is an ignorance of how their actions do extend beyond the two parties of the divorce.
For the pro-DIY side,shlep: the Self-Help Law ExPress has a very long post here. I suggest anyone reading this post and seriously wants to do their own divorce, then go to the shlep post and take the link to the page they have so you can evaluate your potential as a pro se litigant. I am also very sympathetic with the idea of unbundling and have been for years. However, the last I knew unbundling was considered unethical in Indiana. (I do need to check on that point).
What to do if we do not like the court’s decision: Appeals
Trial courts make mistakes. Because courts make mistakes there is what we call the appellate process. Appeals are a bit more complicated and this is the barest outline about appealing a case. I am writing this from the perspective of the party doing the appeal. The not doing the appeal
First, the Court of Appeals and Indiana Supreme Court do not have trials but only pass judgment on how the trial judge’s applied the law to our facts. That is, the judge incorrectly applied the law to the facts of the case or that there are no facts supporting the trial judge’s judgment. The appellate courts will not do anything if our complaint is only how the trial judge judged the evidence. Sounds a bit like splitting hairs but just remember if there is any evidence supporting the trial judge, the appellate courts will find no error in the trial judge’s work.
Second, there are no trials before the Court of Appeals or Indiana Supreme Court, we just file what are called Briefs. In our Brief we write how the trial judge erred in applying the law to our case.
Lastly, appeals take time and have pretty rigid rules about time, too. As soon as we get the Decree of Dissolution, we need to consider whether to appeal or not. Thirty (30) days after the date of the Decree, we must file a Notice of Appeal. Then ninety (90) days after that, the clerk is to have the transcript of the hearing ready for filing with the Court of Appeals. Then thirty (30) days after that, we need to file our Brief and then the other party has thirty (30) days to file their Brief, and we can file a Reply Brief thirty (30) days after that. So far there is 210 days involved in the appeal. The time increases waiting for an opinion from the Court of Appeals.
Filing an appeal also means an additional cost in the shape of a filing fee with the Court of Appeals.
What you need to understand most is that the case does not necessarily end with the trial judge.
Maintenance
Indiana does not allow for alimony. Indiana does allow for maintenance. Maintenance is the payment of money to the former spouse for their support.
Temporary maintenance is only allowed from the provisional hearing to the Final Hearing. Here the purpose is to keep the other spouse afloat during the transition out of marriage and two incomes. The spouse seeking maintenance must not be able to support themselves. My experience is that courts are not likely to grant maintenance and when they do order it, the spouse paying maintenance is ordered to pay bills rather than pay cash to the other spouse.
Post-divorce maintenance is of three varieties and the statute defines them so that they are available only in specific cases. First, one spouse is disabled and incapable of supporting themselves. Second, one spouse has custody of a child who is so disabled that the spouse must give up work to take care of the child. The last type of maintenance is called rehabilitative maintenance and the statute sets out the criteria for rehabilitative maintenance:
(A) the educational level of each spouse at the time of marriage and at the time the action is commenced;No maintenance is permanent. Rehabilitative maintenance lasts only three years. Where the court gives maintenance because of the spouse’s disability when the spouse can support themselves is the end of the maintenance. When a child’s disability is the reason for the maintenance order, the court orders the maintenance for what it considers to be an appropriate amount of time.
(B) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both;
(C) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and
(D) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment....
Child Support
Indiana has child support guidelines. These guidelines tell us how to calculate child support. Basically, it depends on the income of you and your spouse and how many children. The Child Support Guidelines can be found on the Internet here. You can get all the details there.
What you need to understand more than anything else is this: 1) the mathematics is more complicated than say $50.00 per child per week, 2) it is impossible to get an accurate child support figure without accurate numbers going into the computations, and 3) there is no standard child support figure - put three families of three together and you will get three different child support figures unless they have exactly the same income, same deductions allowed by the Guidelines and have the same amount of overnight visitation.
The State of Indiana also provides us with an online child support calculator. You will find this particularly useful after the divorce is final. You can find the calculator here. If you are online, I suggest that you add this site to your Favorites/Bookmarks list.
Property Division
Every case involves the division of property. Some people do not realize that they have property. Property is stuff. The value need not be great but there is a need for dividing this between you and your spouse. All too often clients do not want to think about their belongings but want only to be rid of their spouse. Think about the cost of replacing the things you do not want to "fight over" and ask your self if you can really afford not to get your 50-50 split. This is the principal reason I will tell you that you need to get your half and advise against cutting off your nose to spite your face.
The law presumes a 50-50 split of property. This means that there is no fighting over property unless you deserve or your spouse wants more than 50-50 split. This also means that neither party can take the other to cleaners without rebutting this presumption. The law sets out how to rebut this presumption. The party wanting more than 50% of the marital property must show that a 50-50 split is unjust and unreasonable using these factors:
(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.Marital property includes property "(1) owned by either spouse before the marriage; (2) acquired by either spouse in his or her own right: (A) after the marriage; and (B) before final separation of the parties; or (3) acquired by their joint efforts." Notice that you and your spouse must own the property to be divided. One type of property where the ownership may not be clear involves retirement benefits. Unless the retirement benefits have vested, there is no ownership.
(2) The extent to which the property was acquired by each spouse:(A) before the marriage; or(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
(B) through inheritance or gift.
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:(A) a final division of property; and
(B) a final determination of the property rights of the parties.
The court has several ways to divide property. It can divide by kind - there are two cars and so one goes to you and the other to your spouse. If there are retirement benefits, the court can order them distributed between you and your spouse. Then, too, the court can order the property sold. Lastly, the court has the power of "setting the property or parts of the property over to one (1) of the spouses and requiring either spouse to pay an amount, either in gross or in installments, that is just and proper." Whatever method the court uses must be just and reasonable. The court must take into consideration the tax consequences of any property division.
One other tool available to the court in property division is set out in this statute:
If the court finds there is little or no marital property, the court may award either spouse a money judgment not limited to the property existing at the time of final separation. However, this award may be made only for the financial contribution of one (1) spouse toward tuition, books, and laboratory fees for the higher education of the other spouse.
I have not seen it used but the law is there as limited as it is to cases with little or marital property and for the spouse receiving the money who is attending a school of high education.
The Provisional Hearing
Simply put, the provisional hearing means a temporary hearing. They are generally short and to the point. Quite often, the parties agree to matters before the actual hearing. The purpose here is for preserving as much of the status quo as possible and provides for a transition to a post-marriage life for the parties. Only the Final Hearing determines the issues with anything approaching permanency. Indiana Code 31-15-4-13 specifically deals with this: "The issuance of a provisional order is without prejudice to the rights of the parties or the child as adjudicated at the final hearing in the proceeding." The provisional order ends in one of the following ways: 1) at the Final Hearing, 2) the Petitioner dismisses the Petition for Dissolution, or 3) a petition to modify is filed before the Final Hearing.
If either you or your spouse needs possession of property until the Final Hearing, this needs to be brought up at the provisional hearing. Dividing that property permanently is for the Final Hearing.
We may also request a temporary restraining order. Indiana law allows a temporary restraining order to only property issues. You and your spouse may be restrained from transferring, encumbering, concealing, or in any way disposing of any property, except in the usual course of business or for the necessities of life or granting temporary possession of property to either party. For protecting people, there is a protective order proceeding. The law requires a protective order be filed separately and the joined to the divorce case.
Law allows courts to order counseling. I am aware of one judge who will not order counseling for the parents if one parent objects. He reasons that counseling will have no effect if both parties are not willing to make an effort. I think his reasons are valid. The statute says this about counseling:
The court may require the parties to seek counseling for themselves or for a child of the parties under such terms and conditions that the court considers appropriate if:The next statute specifically forbids joint counseling without the consent of both parties or "or "if there is evidence that the other party has demonstrated a pattern of domestic or family violence against a family or household member."(1) either party makes a motion for counseling in an effort to improve conditions of their marriage;
(2) a party, the child of the parties, the child's guardian ad litem or court appointed special advocate, or the court makes a motion for counseling for the child; or
(3) the court makes a motion for counseling for parties who are the parents of a child less than eighteen (18) years of age.
Saturday, February 17, 2007
Parenting Time
Parenting time includes what we all once called visitation but is also more than visitation. The Parenting Time Guidelines include rules on sharing information about the children and transportation as well as visitation. The Guidelines breakdown visitation according to the age of the children and the type of visitation. The Indiana Supreme Court designed the Parenting Time Guidelines to be understood by you and your spouse and to be self-operating - that is without the need to go to court for hammering out details. You can find the Parenting Time Guidelines online here.
I suggest that my clients bookmark this site, download the Guidelines or both. The Guidelines are quite long. They break down parenting time by the age of the child and by holidays. I gave up any attempt at memorizing them as I have cases with children from newborn to over eighteen years of age. As I have a copy close to hand, I suggest that you do likewise. Especially as the Guidelines require that the parties make an attempt at working out matters between themselves.
Exchanging Income Information - a proposed best practice
Many years ago I made a motion at a Final Hearing that the parties be ordered to exchange income information at least yearly when tax returns were filed. The Commissioner hearing the case looked at me as if I were speaking in tongues and denied the motion.
Since then, I incorporated this idea into my uncontested property settlement agreements. I also found more success with younger lawyers agreeing to this type of provision.
Looking back, I have came to two conclusions about my rejection. The charitable one is that the Commissioner confused the idea of exchanging income information with an automatic increase in child support. Case law forbids automatic increases of child support. Automatic increases violate due process because they omit the ability of the payor to have his/her day in court.
With the increasing numbers of people online and with Indiana's Child Support Calculator online, people can review their child support obligations on their own. They lack accurate information to perform these calculations. Exchanging income information whenever either party changes employment and when filing tax returns provides the clients with the accurate information necessary to perform an accurate child support calculation.
Currently, a client comes to me about a support modification and has a suspicion that support ought to change. They pay me to prepare a Petition to Modify Support, prepare discovery, respond to the other side's discovery, calculate child support, and go to a hearing. In essence, they have to bid into the pot before they know if they have anything to modify. One case I had in recent years showed a ten dollar increase in support after a ten year hiatus. I was very unhappy that the client had to pay what she did to find out she got almost nothing but we had no alternative. In support modification cases the major cost lies in discovery.
My modest proposal should eliminate a major cost in support modification cases. In turn, it ought to let us weed out the cases where modification is not yet ripe. Which might mean judges less annoyed with cases that ought not to have been filed and clients less disappointed when an anticipated increase disappears in the face of the facts. On the hand, it would mean less discovery and smaller fees for us lawyers. Which lead to my other, more uncharitable conclusion about that long ago decision.
Defining Some Legal Terms for the Divorce Case
These definitions might differ some from the dictionary but my hope here was to define them so that they are understood in everyday English.
Petitioner: the person who files for divorce first. Being the Petitioner does nothing more for the person filing than having control over whether the divorce becomes final or not and (generally) gives the person the choice of court to file in.
Respondent: the person who is not the Petitioner.
Contested divorce: means that you and your spouse have not agreed completely on dividing property and debts, and, if there are children, decided custody, parenting time, and child support issues. Contested does not mean whether or not you will get divorced.
Uncontested divorce: you and spouse have decided between yourselves all of the issues that are to be decided in your divorce - property, debts, custody, support, parenting time (visitation).
Irretrievable breakdown of the marriage: that the marriage cannot be fixed. Part of what the Petitioner has to say to get the divorce finalized - "I agree that the marriage is irretrievably broken. So long as the Petitioner says that the marriage is irretrievably broken, there will be a divorce.
Provisional Hearing: the hearing between filing the Petition and the Final Hearing where temporary support, temporary maintenance, temporary custody, temporary child support, and temporary parenting time are set by the court.
Final Hearing: the hearing where the marriage is ended.
Discovery: the process of getting information from the opposing party and others that we need for our case. Discovery is a set of tools including interrogatories (written questions), motions to produce (to get documents), motions to produce directed to third parties (same as a motion to produce but not for you or your spouse), and depositions (appearing before a court reporter and being asked questions under oath).
Temporary maintenance: payment to the spouse for expenses; not child support and not always granted by a court.
Decree of Dissolution of Marriage: the formal name of the court’s Order that dissolves your marriage, divides your property and determines child custody, support and parenting time.
Parenting Time: the technical term now used for visitation.
Modifying the Decree: Parenting Time (Visitation)
As with other matters relating to children, the law allows for changes over time. Compared with child support and custody, Indiana law has rather narrow grounds for modifying parenting time. As with everything else regarding the child, the child's best interest rule applies to parenting time. A parent moving out of the area is grounds for modification. Otherwise, restricting parenting time means showing the court "that the parenting time might endanger the child's physical health or significantly impair the child's emotional development."
And this is definitely not a place for self-help. I define self-help as deciding on your own that the child does not need to go on visitation or allowing the child to refuse to go on visitation. Both are grounds for contempt. Which can mean jail for the custodial parent.
If visitation presents a danger to the child, then the custodial parent must contact an attorney and file a Petition to Modify Visitation. I write that assuming that the parties have followed Parenting Time Guideline I. E.1:
Disagreements Generally. When a disagreement occurs regarding parenting time and the requirements of these Guidelines, both parents shall make every effort to discuss options, including mediation, in an attempt to resolve the dispute before going to court.Notice I.E. 2. requires mediation unless otherwise ordered by the court. I find that courts in my area will otherwise order and allow the parties to escape the cost of a mediator.
After filing the Petition to Modify Visitation, the matter is heard by the court. The judge makes a decision. Generally, there ends the matter unless there are grounds and support from the client for an appeal.
A point that I think could be made here concerns the custodial parent. In the past two years, i have had three cases involving parenting time and with almost entirely similar personalities. I use "personalities" because those personalities determined the facts. I had the non-custodial parent in two of those cases and won both of those cases. In those cases, the custodial parents shared an obstinate disdain for the Parenting Time Guidelines over a period of a year or more. One mother told my client that she did not care what the Guidelines said, she was not going to do it unless a judge told her to do so. (Yes, she had counsel. In all three cases all the parties had attorneys. Someone with a more philosophical bent might ponder if the drafters of the Parenting Time Guidelines overestimated the intelligence of our citizens.) I lost with my custodial parent. She was concerned about a dog that bit the child, they could not just talk to one another, and in the end I think her resentment towards the father hurt us. Summing up, be certain about the motives of the custodial parent in seeking a modification. If the custodial parent comes across as trying to use visitation to harass or needle the non-custodial parent, I think the judge will take a dim view of the case.
Relocation presents its own problems but also is a bit simpler. Instead of showing possible harm to the child, the only thing needed shown is the fact of relocation. True, relocation may trigger a modification of custody but that depends on the facts of each case. I suggest you read my earlier post on relocation. I think I should point out that the Parenting Time Guidelines have not been updated to reflect the changes in the relocation statute. However, there good advice still resides in the following:
4. Relocation. When either parent considers a change of residence, reasonable advance notice of the intent to move shall be provided to the other parent so they can discuss necessary changes in the parenting schedule as well as the allocation of transportation costs in exercising parenting time which may result from the move.
Commentary
1. Impact Of Move. Parents should recognize the impact that a change of residence may have on a child and on the established parenting time. The welfare of the child should be a priority in making the decision to move.
2. Indiana Law. Indiana law (Ind. Code § 31-14-13-10 and Ind. Code § 31-17-2-23) require that if a custodial parent intends to move outside Indiana, or more than one hundred (100) miles from the individual’s county of residence, a notice of intent to move must be filed with the clerk of the court that issued the custody order, and a copy of the notice must be sent to the other parent.
Enforcing the Decree: Parenting Time (Visitation)
What do you do you if the child refuses to go on parenting time?
What if the other parent refuses to allow the parenting time?
The court does not supervise visitation. The only people enforcing visitation are the parties themselves. The parties ought to have complied with Parenting Time Guideline I. E.1:
Disagreements Generally. When a disagreement occurs regarding parenting time and the requirements of these Guidelines, both parents shall make every effort to discuss options, including mediation, in an attempt to resolve the dispute before going to court.(Notice I.E. 2. requires mediation unless otherwise ordered by the court. I find that courts in my area will otherwise order and allow the parties to escape the cost of a mediator.)
Custodial parents need to consider the following from the Parenting Time Guideliness:
3. Child Hesitation. If a child is reluctant to participate in parenting time, each parent shall be responsible to ensure the child complies with the scheduled parenting time. In no event shall a child be allowed to make the decision on whether scheduled parenting time takes place.What the Commentary obliquely describes as "assistance of the court" means a modification of the Parenting Time Order. The custodial parent cannot cut off visitation without approval of the court. See my post here about modifying Parenting Time.
Commentary
In most cases, when a child hesitates to spend time with a parent, it is the result of naturally occurring changes in the life of a child. The child can be helped to overcome hesitation if the parents listen to the child, speak to each other and practically address the child’s needs.
Parents should inquire why a child is reluctant to spend time with a parent. If a parent believes that a child’s safety is compromised in the care of the other parent, that parent should take steps to protect the child, but must recognize the rights of the other parent. This situation must be promptly resolved by both parents. Family counseling may be appropriate. If the parents cannot resolve the situation, either parent may seek the assistance of the court.
Not that the non-custodial parent can sit on his rights. The law loses all respect for those sitting on their rights. If the parties cannot negotiate a settlement between themselves, the non-custodial parent must file a contempt affidavit. The court will then determine the proper punishment if the non-custodial parent shows that the custodial parent willfully and intentionally violated the court's order.
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