From England, a perspective on cohabitation

Mostly this blog discusses cohabitation in terms of litigation and private agreements. That pretty much sums up the state of Indiana law at this time. We may see a discussion about litigating private agreements but I think those cases are a long ways off. So discussing legislation, especially foreign legislation means going a bit off the beaten path. However, I think the journey may be worth effort. Particularly, when the article criticizes the legislation and lets the world see possible pitfalls. From England's The Telegraph: Cohabiting 'rights' campaign is taking a liberty.

I doubt that many in Indiana will see the benefit of a cohabitation agreement and those that do will be leery of the costs financial and emotional. Which leaves many people in this state with only two recourses when a relationship ends in which there has been an intermixing of assets: 1) they can slink off and lick their wounds or 2) they can hope that the vagaries of litigation do not work against them. Legislation does solve those problems.

Need a change in child support?

Changing child support means filing a Petition to Modify Support with the court that set the child support order. That original order was not set in stone but reasons must be given for any change. Changes in income or changes in childcare expenses or changes in the other parent's income can be be grounds for modification. Changes with the child such as the child being emancipated or going to college can also be grounds for modification.

Then there is the question of timing. Timing? Yes, as Indiana Code 31-16-8-1 points out, one cannot file a petition to modify support whenever one feels like filing one:

(b) Except as provided in section 2 of this chapter, modification may be made only:
(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.

If after getting past all of these issues and you still think you have a case, then the question is it worth filing the Petition to Modify Support? You might get a partial answer to this question by using the online Child Support Calculator to figure your support but even then you should talk to an attorney. Your calculations are only as good as your numbers and your experience.

General family law information

Indiana Legal Services has a page devoted to several of the same topics I have been or I will be discussing on this blog. Use this link to reach that page.

Free Forms

Indiana Legal Services provides a few free legal forms for its clientèle - which are specifically those persons too indigent to afford an attorney - but they are online for the use of anyone in Indiana.

Parent's disciplining their children - Indiana

Generally speaking, my criminal practice is severely limited nowadays and so I missed Willis v. State when the Court of Appeals handed down its decision on May 17, 2007. I do try to keep up my reading of the Indiana Law Blog which noticed a South Bend Tribune article on the case's transfer to the Indiana Supreme Court and provided to an earlier ILB post on the case which follows:

Sophia Willis v. State of Indiana - "We sympathize with Willis’s argument that she is a single parent who is doing the best that she can, but we cannot condone her choice to whip her child with an extension cord to the point of causing him bruises and extended pain. The trial court is in the best position to determine what is reasonable under any given circumstances, and we must give substantial deference to the trial court’s decision herein. Willis’s argument that her behavior was justified under the circumstances is a request that we reweigh the evidence—a practice in which we do not engage when considering the sufficiency of the evidence. See Mitchell, 813 N.E.2d at 428 (finding that father’s argument that his actions were justified, not excessive, and merely parental discipline was an invitation to reweigh the evidence). We acknowledge that this was a closer case than some of the examples cited above, but ultimately, we cannot say that the trial court erred in finding sufficient evidence to convict Willis of class A misdemeanor battery on a child. The judgment of the trial court is affirmed."

My contracts law professor used the phrase "weasel words" when describing words like reasonable. The clients listen to us explaining reasonableness and I am sure we leave them somewhere between either completely confused or believing that lawyers can explain nothing. I doubt that the Indiana Supreme Court can make any rule that will clarify matters one iota. We fall back on reasonableness because the facts will vary from case to case and what would shock our consciences into saying that act is unreasonable comes from the facts of each case.

Until the Indiana Supreme Court does speak, I suggest all use common sense and not a bad temper when disciplining any child.

Enforcing your child support order

Not getting child support as the court ordered? I have written about enforcing child support when the parties relocate, and about how non-support can lead to the payor losing his driver's license or a professional license. However, I have not written about using contempt to enforce child support.

Contempt means the willful and intentional disobedience of a court order. With child support, that means the party who is supposed to pay child support did not do so when they had the ability to pay their child support obligation. I do not think a person lying comatose will have a hard time defending themselves against a contempt citation.

Contempt requires filing an affidavit with the court. The affidavit states how the other party violated the court order and is signed under oath. The court sets the matter for a hearing. The other party gets served with a copy of the affidavit and a citation telling them when to be in court.

The court can order the person into jail or add an additional amount to be paid for the child support arrears or a combination of things or order payment of attorney fees.

Sounds simple? It can be and sometimes there are surprises.

Doing business with your spouse

Do any of these remind you of yourself?

1. You want to take your spouse into the business?
   
2. Or you have a business, maybe at home, and your spouse is just helping out?
   
3. Or are the two of you are thinking of starting a business together?

I suggest - strongly - under any of these scenarios that you get yourself to an attorney now.

Why? Take the second scenario first because it hides its problems like a snake in the grass. You may not know that the law can imply partnerships by actions as well as by a formal agreement. Two spouses start a business and even without a formal agreement, a partnership can be created by their acts. I willingly admit to an aversion against partnerships. I think most attorneys do not like them. Law school beats us over the head to avoid liability for our clients as much as possible. If anything goes wrong with a partnership, then business creditors can go after all the joint assets. Since most businesses fail, why would you not be talking to a lawyer before problems start?

The other two scenario at least get the horse before the cart. The first scenario might only require tinkering with the business format and maybe a prenuptial agreement or a post-nuptial agreement while the third does require advising on the business format (corporation, limited liability company or partnership) and a post-nuptial agreement.

Why a prenuptial/post-nuptial agreement? If the clients want to keep the business running as long as possible, they need to consider all of the problems including divorce. I think this kind of l agreement needs to be considered regardless of the business type used by the husband and wife. With a partnership and limited liability company having a written document (and a LLC requiring a written operating agreement) setting out how the business shall be run, incorporating some of the prenuptial/post-nuptial's terms does not seem out of place. Based upon that reasoning, they need a separate prenuptial/post-nuptial agreement if the business is to be set up as a corporation.

Then they need to consider their retirement and estate planning objectives. If the business entity is a partnership or a limited liability company, these objectives need expression in the partnership agreement or the LLC operating agreement and for corporations in a separate document.

Grandparent visitation case

I have not had time to read the case but the Indiana Lawyer Daily reported a new Court of Appeals on grandparent's visitation. The report makes the case seem far from ordinary:

Grandmother Maxine Handshoe is appealing the Steuben Circuit ruling that terminated her visitation privileges with her biological grandson, J.E.M, who was born out of wedlock in 2001 to her daughter, Ridgway. The grandmother had guardianship until April 2005, when Ridgeway - at age 22 - was adopted in Michigan by her second cousins. She filed a petition to end guardianship and visitation, arguing that Handshoe was no longer J.E.M.'s grandmother by virtue of the adoption. The trial court agreed.

The report says that the cased is a first for Indiana.

Probably not the best sort of language

Christopher Vebert, Sr. sued Atashia Lynn Wildey over an engagement ring. Vebert lost and then appealed his loss to the Indiana Court of Appeals. The following comes directly from the Indiana Court of Appeals' opinion (PDF format and not-for publication):

Wildey then filed, in the form of a letter, a motion for change of venue, which provided, in pertinent part:

[Vebert] is full of crap[;] he has never bought a ring[,] not a 25¢ one let alone a $250.00 ring . . . He is like a lying[,] th[ie]ving snake. I have also looked into this Trent Goodsen fellow and he doesn’t [exist]. [Vebert] signed his name to that so[-]called receipt as well as the [alleged] seller[’]s name.

Probably not the sort of language one expects to find in an appellate court opinion but I guess it accurately sets out Ms. Wildey's view of Mr. Vebert.

Getting engaged? Make sure you keep the receipt for the ring.

Premarital questions

Take a look at the post PreMarital Financial Counseling from 2million - My Journey to Financial Freedom. Especially those seeking information on prenuptial agreements may find it useful to ask these questions of themselves and their spouses. I would say that all, and certainly most, are questions I will ask of clients seeking a prenuptial agreement.

Do-it-yourself - a really good point

Whether you want to do your own divorce, support modification, contempt affidavit, grandparent visitation, or custody case, you need to think about two things:

First, you pretty much got to create your own forms in Indiana. See my post here on the subject of forms: http://haslerlaw2.blogspot.com/2007/07/online-indiana-family-law-resources.html

Second, think about this post from The Kansas Family and Divorce Lawyer Blog:

Before you consider filing your divorce yourself, please remember one thing. Almost anyone can fill in a form. But, the legal process can be a complicated process and those of us who deal with it every day truly know what is needed to take a case from start to finish. You need to remember there is always the chance that you may run into a problem....

Neither time nor geography deduct anything from the wisdom in that paragraph.

Not Indiana law but interesting - alimony and same-sex couples

Indiana lacks alimony - unless the parties agree to alimony. California law provides for alimony. Indiana does not have a domestic partnership statute while California has a domestic partnership law. Thanks to the Indiana Law Blog for a post here about a Los Angeles Times article (registration required for the L.A. Times but it is free) on a case where California's alimony law intersects with its domestic partnership law.

Indiana Law Blog got most of the story but I would like to add these bits:

State marriage laws say that spousal support ends when the person receiving it dies or remarries, unless otherwise specified in an agreement.

"If he had signed that agreement under the same factual scenario — except marriage, not domestic partnership — his agreement to pay spousal support would be null and void," said William M. Hulsy, Garber's lawyer.

Edwin Fahlen, who is representing Garber's former wife, Melinda Kirkwood, said the agreement was binding, regardless of whether his client was registered as a domestic partner or even married. Both sides agreed the pact could not be modified, and Garber waived his right to investigate the nature of the Kirkwoods' relationship, the lawyer said.

This could still happen here if: 1) the parties agree to alimony and 2) the agreement does not provide for the alimony's end with cohabitation regardless of the cohabitant's gender.

Office news

I have a funeral to attend and will not be blogging for the rest of the week.

A reminder about this blog - no advice given!

This blog exists for many reasons but it does not exist for giving of advice about particular cases. Those leaving requests for such advice as a comment to a post will find those comments rejected. I am sorry J. Schilling, but that is how it is. I did remove the "About this Blog" section last night and did not provide a replacement for its disclaimer, but I have corrected that problem today.

Cohabitation agreements and basic estate planning

Hoosiers do not often discuss the problems of living together or cohabitation agreements. When we do the topic seems to come up most in terms of gay marriage. What most people here overlook is that more than just gays and lesbians live together. True, heterosexuals living together but unmarried do the marriage option open to them.

You need to think about a a cohabitation agreement whenever either of you intend to mix assets and income without any plan of marriage. When you and your partner intermingle money there always exists the possibility for conflict and the cohabitation agreement provides a means for solving that conflict. Yes, you can go to court and let the court sort out the problem. Consider this post on the New Jersey Family Law Blog with this rather self-explanatory title: Unmarried couples who buy property together should consider a written agreement. The New Jersey factual scenario can occur here in Indiana. You can look at how Indiana's courts have treated these kind of cases here on my Indiana Divorce and Family Law Blog at this post: http://haslerlaw2.blogspot.com/2007/02/living-together-in-indiana-and-then.html .

Cohabitation agreements also serve in another kind of crisis: the death of a partner. Admittedly my views on cohabitation agreements did not originally include more of what I consider basic estate planning. I will say that the Indiana appellate court cases colored my views - they are wholly focused on the breakup of the relationship. My view changed and I think most people today think a cohabitation agreement should include Wills, powers of attorney and health care powers of attorney. Read the New Jersey Family Law Blog post I linked to above for a concurring opinion. Indiana probate law no more protects unmarried persons than do our family law statutes. The financial and emotional investments made with your partner may be lost during a serious illness and/or death.

Remember this as the bottom line for anyone living together and sharing a substantial amount of their income and assets: get a lawyer and get a cohabitation agreement.

Marriage and divorce - something more philosophical

I wandered across a law-related blog that I have not read in a year or more, Althouse. The "Stem selves" post there lead me to AmbivaBlog and "The novel that most of us are living in."

Interesting stuff, even if working hours meant a skim rather than a good read. Both reminded me of a lament from a clinet of mione last week. We had a custody hearing and he was commenting on all the things that happened during his relationship with the mother of his child. I remarked that such was a life - only in the movies and novels is life done neatly.

Terminating Parental Rights - new case

From Indiana's Court of Appeals came a new case on terminating parental rights, due process, and local rules, and attorneys withdrawing from a case. Termination of Parental Rights of D.A., D.A., D.A.; Herman Andrews v. Monroe County Department of Child Services is a 20-page opinion in PDF format but worth the time.

Divorce: Starting the process

Everything starts with the Petition for Dissolution of Marriage. The Indiana Code (our statutes) sets out the requirements for the Petition.

IC 31-15-2-5
Verified petition; averments
31-15-2-5 Sec. 5. A petition for dissolution of marriage must:
(1) be verified; and
(2) set forth the following:
(A) The residence of each party and the length of residence in the state and county.
(B) The date of the marriage.
(C) The date on which the parties separated.
(D) The name, age, and address of:
(i) any living child less than twenty-one (21) years of age; and
(ii) any incapacitated child;
of the marriage and whether the wife is pregnant.
(E) The grounds for dissolution of the marriage.
(F) The relief sought.

The Indiana Supreme Court's Self-Service Legal Center has a Petition for children and without children.

Indiana law requires the Petition state one of four grounds for dissolving a marriage:

(1) Irretrievable breakdown of the marriage.
(2) The conviction of either of the parties, subsequent to the marriage, of a felony.
(3) Impotence, existing at the time of the marriage.
(4) Incurable insanity of either party for a period of at least two (2) years.

Generally, we all use irretrievable breakdown of the marriage in our petition.

One oddity involves the wife's former name and the Petition. As I read the statute, only a wife has the ability to request a name change:

31-15-2-18 Sec. 18. A woman who desires the restoration of her maiden or previous married name must set out the name she desires to be restored to her in her petition for dissolution as part of the relief sought. The court shall grant the name change upon entering the decree of dissolution.

The Petition and Summons go to the County Clerk for filing. If there are children or a request for a restraining order, a Notice of Hearing also goes along. The Notice of Hearing informs the other spouse of the date and time for the provisional hearing.

The County Clerk sends the Petition and Summons out to be served on the other party. There are three ways to get the Petition served: certified mail, personal service, or by publication. The Indiana Rules of Trial Procedure have rules on each type of service.

I think certified mail is pretty obvious. For personal service, the Sheriff or the court's bailiff serve the summons and Petition on the other party by giving it to them or just by leaving it in the door. If you look at your newspaper's legal classified section, you may see a summons by publication entry and that is what we call service by publication.

Of the three, the best method for service is personal service. The divorce cannot be final so long as the other party has not received a copy of the Petition.

Minimum wage, and child support

The Madison County Unified Court's Court Administration Office kindly sent out a flier reminding us that with the increase in child support comes an increase in the imputed income figure for child support calculations. Imputed income being the amount used for a parent without a job. That figure now goes to $234.00

Self-help: An example of what can go wrong

So you want to handle your case by yourself and save all that money in attorney fees? Here is a cautionary story: IN THE MATTER OF J.H., MINOR CHILD (PDF format). The mother appeals when the court gives custody to father. More importantly, mother appeals without an attorney. The Indiana Rules of Trial Procedure are complicated enough but the Appellate Rules increase in complication.

Mother lost her appeal but lost in such a way that she now has to pay the father's attorney fees:

Having found that Mother committed both procedural and substantive bad faith, we order her to pay Father’s appellate attorney fees in this matter. We hereby remand to the trial court for a determination of Father’s appellate attorney fees.

As the Court of Appeals points out, appellate attorney fees are not to be granted willy-nilly. While this case cannot be cited a precedent, I do think the opinion gives a good example of why you need a lawyer. (I think she also represented herself at the hearing but the Court of Appeals' opinion does not make this clear. I make the assumption based on the lack of objections mentioned in the opinion.)

Besides the technical skills (and the not so technical skill of reading the applicable rules), lawyers provide an objective view of the case. Many clients hate that from their lawyers - they expect advocacy equates with slavish engagement with all of the client's engagement. However, slavishness is not our job. We are there to present the best case we can for our clients and that may mean dropping the weaker arguments.

With appeals, what I have just written is even more important. With my last appeal, I had a client who had an emotional need for including all the arguments presented to the trial court in the appeal. Somewhat foolishly, I tried to accommodate her. I could (unlike the mother in the case above) cobble together a cogent argument but it took my time away from what I thought was the best argument and diverted the attention of the Court of Appeals. Of course, we got nowhere and she is no longer a client.

Resource for Indiana lawyers: Indiana Law Journal

The Indiana University Law School at Bloomington has for a long time published its law review articles online. I think they are still the only Indiana law review doing so, but then IU Bloomington was a leader on the Internet.

What I am finding odd is that only the current volume is online. You can access this page through this link. I cannot find the archives and the site is a bit more barren than I otherwise recall. On the other hand, I found a very interesting article Constitutional Challenges to Indiana's Third-Party Custody Statutes by Kristen H. Fowler.

Where to pay child - a rant of sorts

How many times does it have to be said: pay your child support through the clerk of the court. Do not pay the custodial parent directly!

A statute requires it and there is an even better reason: the clerk keeps better records than you or your former spouse. Better records lead to better health for you and for your lawyer. How so? Neither of you will have the stress and worry imposed by facing a contempt citation alleging years of non-payment increased by non-existent payment records.

For those paying the custodial parent directly, go to the county clerk and set up your payments. Do it today.

End of rant, thank you.

Online Indiana Family Law Resources

I think I have mentioned some of the following as web pages that everyone who is involved with an Indiana family law case ought to have bookmarked. Some are in my links to the right of this post. Still, I see the kind of searches bringing people to this blog and I realize that I might not have made things as easy as possible.

1. Online Child Support Calculator.
2. Indiana Parenting Time Guidelines
3. Indiana Child Support Guidelines
4. Indiana's Dissolution of Marriage Statutes
5. Indiana's Paternity Statutes
6. Indiana's custody and visitation Statutes
7. Indiana's Child Support Statutes
8. Indiana's Appellate Court Opinions.
   
9. Indiana's Rule of Court
   
10. Indiana Supreme Court forms

If you want to do your own legal work, then bookmark all 10. Otherwise, you need only bookmark 1 - 3.

About the forms: remember Indiana does not have forms for each and every conceivable thing to be filed with a court. Practicing law means having to take a statue's or rule's requirements and put them into a form. I hope this helps some of you understand what your lawyer does and I hope those bound to do things on your own understand now why they cannot find a form online.

Yes, lawyers have to keep track of all this information.

Local Rules: Hancock and Marion Counties

For those who want to handle their own legal matters, a word of caution. Indiana has trial rules applying to all courts in all counties and those rules allow for each county to create its own local rules. You need to know these rules as well as the state-wide rules. Here are links to two of those local rules.

Hancock County: http://www.hancockbar.org/LocalRules.html

Marion County's Local Family Law Rules are here.

Prenuptial agreements and probate

From the Philadelphia Daily News on June 28:

ATTORNEY Edward J. Hayes says that Harry Jay Katz's lawsuit against the estate of Katz's late wife Tracey Birnhak is "completely meritless."

Katz, 66, a reformed playboy, former restaurateur and theater owner, filed suit last year in Common Pleas Court in an attempt to set aside and void a prenuptial agreement signed in April 2000 by him and Birnhak. The matter is listed for trial on July 23.

Katz and Birnhak married in May 2000. Birnhak, who died of cancer four years later at age 45, was a part-owner, with her parents Marilyn and J. Robert Birnhak of Weight Watchers of Philadelphia, Inc. Her assets, including real estate, Weight Watchers stock, and other investments, were listed at over $2 million. The prenup essentially states that in the event of divorce, both parties would keep their pre-marital assets and wouldn't owe each other.

Interestingly, Katz's assets in the pre-nup are listed as none.

The document says his sole income is a trust set up by his parents, and states that the expenses of the trust are greater than the income he receives.

Katz's legal complaint alleges that his late wife's finances were not properly revealed in the prenup and therefore the document should be nullified, and he should be entitled to part of her estate.

Hayes, attorney for the Birnhak estate, says Katz had six months after Birnhak's will was exercised in 2004 in which to contest it. "Mr. Katz, with very competent counsel, signed a prenuptial agreement of his own free will." His counsel was Chuck Peruto, Jr., who gave his legal service as a wedding gift.

Katz's lawyer Michael E. Stosic declined comment, but reached yesterday, Katz said that "Promises were made to me by the Birnhaks when I took care of their dying daughter and was a permanent caregiver to her in my own home until her death.

"I married her after she was diagnosed with Stage 4 terminal cancer and I loved her," Katz says.

Katz points out that he received the Wellness Community's "Caregiver Award" for "giving up my life to care for my wife," and is confident his suit has merit.

Time may not be on your side

Always remember that time is the enemy in any legal matter - more so than any other factor. You need to act within such and such time and not doing so can end the case. Here is an example: Paternity of D.T.B., a child born out of wedlock; Andre D. Barr v. Paula J. Frison (NFP). Yes, it is a not-for-publication case but it does a good job of illustrating the problem of procrastination). Waiting six years exceeds any idea of reasonableness.

50 States, 50 Different Kinds of Family Law - part 1

What to do about the following:

• Person moves to Indiana from another state where he/she was divorced?
• Person moves to Indiana from another state files for divorce here?
• Person has custody of children from another state where he/she was divorced and moves to Indiana?
• Person moves to Indiana from another state with children and files for divorce here?

In the first scenario, there is not much that an Indiana attorney or court can do for the person. Most lawyers are licensed only for one state. I am licensed only to practice law in Indiana. That means I do not the law of any of the other forty-nine states. For you that means going back to the original state and the original court for custody, support and visitation matters.

The person moving to Indiana who wants to file for divorce in Indiana has to live here for six months and live in a particular county for three months. That rule applies with or without children. If you have children in the other state, then the Uniform Interstate Family Support Act may apply to you.

A person moving to Indiana who has been divorced in another state and has custody of their children can come under the Uniform Child Custody Jurisdiction Law. There may be other exceptions to this including the Uniform Interstate Family Support Act.

If you have a paternity case instead of a divorce, then the above observations really do not change.

I will come back to some exceptions to these general rules but remember that divorce law is pretty much a horse of different colors between the states. But this rule does not change: an Indiana lawyer advising you on Oklahoma (or whatever state other than Indiana) law commits malpractice unless they are admitted to practice law in the other state.

Post-nuptial agreements - new appellate court case

The Indiana Court of Appeals handed down a new opinion on post-nuptial agreements. Remember, post-nuptial agreements are agreements entered into after marriage (and prenuptial agreements are made before marriage).

The new case turns on the issue of modification. The parties agreed on the souring of the marriage, they created an agreement that included a provision about insurance and the beneficiary of that insurance, and then the husband filed for divorce in Indiana. During the divorce, husband requested that the court change the insurance beneficiary from his wife (as in the Agreement) to their adult children. The trial court made this change. The trial judge makes the wrong decision.

The trial court gets reversed because the husband failed to show "'fraud, duress, and other imperfections of consent, . . . or with manifest inequities, particularly those deriving from great disparities in bargaining power....'"

The Court of Appeals provides selections from the Agreement in the opinion and it may be worth checking out for that purpose, too.

The case, and a link to it, is Marie B. Augle n/k/a Marie B. DeLuca v. William H. Augle.