Remaining Family Law Legislation for This Year's General Assembly

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

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

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

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

News - Child Support and Casino Winnings

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

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

***

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

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

Correction to Child Support Duty to End at 19

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

Pending Indiana Legislation - Child Support Duty to End at 19

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

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

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

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

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

News on Child Support Collection and Indiana Casinos

This in from today's The Indianapolis Star:

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

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

***

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

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

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

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

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

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

Not Quite The Usual Child Support Case

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

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

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

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

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

Maybe that explains the law on this subject clearly enough.

General Assembly Looking to Change Child Support Statutes

The Indiana General Assembly digests the Bill this way:

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

Indiana Child Support Guidelines Explained

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

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

Calculating Indiana Child Support - Imputing Income

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

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

Commentary to Guideline 3A

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

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

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

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

The trial court imputed minimum wage to Jessica but also concluded that the "fact that she was living at home and had help from family members to meet her day to day needs is not imputable to her as income." Appellant's App. p. 11. Jessica points to our decision in Terpstra v. Terpstra, 588 N.E.2d 592 (Ind.Ct.App.1992), as an example of the way in which we apply this Guideline. In Terpstra, we agreed with the trial court, which declined to include the father's company vehicle as imputed income. In so doing, we noted that "whether to include this amount in the weekly gross income is a matter for the trial court's discretion .... Viewing all the evidence before it, the trial court decided not to impute additional income to Father for his business automobile. We do not find this decision to be an abuse of discretion here." Id. at 595-96.

Robert, in contrast, points to our Supreme Court's decision in Glass v. Oeder, 716 N.E.2d 413 (Ind.1999), as support for his position. In Glass, our Supreme Court affirmed the trial court's order, which included the father's rent-free living arrangement as imputed income. The court noted that the father's "rent-free living arrangement provides him with a lower living cost that presumably frees up money for the support of his children and was a proper basis for the trial court to impute income." Id. at 417. In addition to his living arrangement, the father owned a corporation and received over $40,000 per year as income from that corporation.

Support Too Much for Your Income?

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

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

Answer: ***

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

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

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

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

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

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

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

Commenting on Prosecutors in Indiana Paternity Cases

Z.S. v. J.F. rises and falls on the issues of notice and knowledge, and particularly how the Hamilton County child support enforcement prosecutor did not deliver a custody petition to the mother. This passage raised something that I have observed for several years now:

Here, Father filed a petition for custody but failed to serve it on Mother, whom he knew was without counsel. Although the Hamilton County prosecutor‟s office received a copy of the petition, it did not forward it to Mother since it was not representing her. Thus, Mother was unaware that custody would be at issue during the final hearing. Based upon the agreed preliminary order, she believed that only issues regarding child support, medical expenses, and tax exemptions were to be resolved during the final hearing. Although Mother attested that she had received the petition for custody when shown the document from a distance, she later testified that she believed the document shown to her to be Father‟s discovery request. At no time during the proceedings, did Mother have benefit of counsel.

From conversations I have had with women who have used the prosecutor's office to establish paternity, they do not understand how they do not have a lawyer for everything.

For a very long time,Indiana law provided for the local prosecutor's office to represent people wishing to establish paternity.

IC 31-14-4-2

Prosecuting attorney to file action and represent child
Sec. 2. (a) Upon the request of:

(1) the child;
(2) the mother or expectant mother;
(3) a man alleging to be the father or expectant father;
(4) the department; or
(5) the county office of family and children;
the prosecuting attorney shall file a paternity action and represent the child in that action

(b) A prosecuting attorney's office may file a paternity action if the child is:

(1) or is alleged to be, a child in need of services; and
(2) under the supervision of the department or the county office of family and children as the result of a court ordered out-of-home placement.

Filing a paternity action requires establishing paternity, custody, child support and parenting time.

Now let me point out where I think the policy of not representing a parent has problems:

1. Disclosure. Paragraph (a) in the statute says "represent" the child in that action. Not mom, not dad but the child. I doubt any prosecutor's office makes this limitation clear to the parties listed in (a)(2) or (3).
2. More Disclosure. I doubt the prosecutor offices make it clear that they limit their representation after the initial filing. I read action to limit the prosecutor to limit its representation after the paternity determination - which would include custody issues. I have yet to see a prosecutor's office handle a custody fight.

(For why disclosure is such a big deal, give Managing the risk of unbundled legal services a read).

What makes this all confusing is that federal law has now given all prosecutors a child support enforcement function. Child support enforcement follows after the state imposed duties. Whether the prosecutors are putting the child support enforcement before their representation is not something that I have good evidence for one way or another.

It may be that I am altogether wrong on this. Feel free to leave comments.

Using Indiana's New Online Child Support Calculator

As noted in All Things Family Law - Indiana Divorce & Family Law Blog's Indiana Child Support - New Child Support Calculator and Divorce Law Indiana's New child support guidelines now in effect, Indiana has a new online child support calculator.

Having botched a save on a child support calculation from last year, I found myself on January 4 using the new child support calculator.

I noticed first how there is now only one calculator (no more downloadable one - which had been the only doing the parenting time credit correctly).

Secondly, I noticed that is very much geared towards the DIY crowd - lots of disclaimers and warnings and buttons to click showing that the person understands the disclaimers and warnings.

Third, the interface changed - and may even be improved. It starts with asking the child's first name and date of birth. So far so good but I put the date in as yy instead of yyyy. Somehow I started back at the disclaimer and warnings page. Great.

Then I get to this page: Step One: Add Child(ren) Information. Lots of instructions here but having only one child and that one not being in post-secondary education, I moved on.

What once was step one (if my memory serves - it often does not any more) is now second - Step Two: Weekly Gross Income of Both Parents. Five paragraphs of instructions here - including one of one sentence. Not sure how understandable it will be to all non-lawyers (I can see some people I know getting stumped by "imputed income").

Somehow I get kicked back to the start page. I get thinking you cannot pause or it kicks you back. Which is an excuse not to answer the wife's telephone calls again.

Then I get the pages with adjustments - prior born children, other support orders, work-related child care expenses, health insurance, overnight parenting time. The insurance pages are new and there is also a page asking for out-of-state child support/maintenance orders.

Then I am done with the calculations. I see a button to save and I click. Back to the beginning - the pause was as long as it took me to write the above paragraph. "Once more into the fray, dear friends, once more into the fray."

Whiz through it again. Not that I am getting that used to it but what I entered is still there mostly. The adjustment pages are like check boxes and not too hard to get them done.

Ah, the thing does not create a form automatically and after saving the program takes me to a page to put in the case information. If you used the old calculators this is exactly backwards to the old process. Which leaves me with the idea that its creator meant to give up the child support number first for the non-lawyers doing their calculations. Not a bad idea, really.

Tip - when it says save pay attention to the next page. It gives a number for the operation. That way if you were to leave the computer for a while, you got a shortcut through all the questions. No place to input that identification number on the form, so I copied it and went back to - maybe - getting through this thing. (Another tip - when you have all the form information inputted do not leave - regardless of how much you have ingested of liquids - until you have clicked the submit button.

The next screen gives you links to the child support worksheet and health insurance worksheet. Make sure you got Adobe Reader or an analogous application. I do not recall a warning that this software was needed but I did go through some of the screens quickly.

All done, the PDF's downloaded to the hard drive soon to be e-mailed to the client.

Thoughts so far - better than the old online version except for this time limit thing. Wondering if it will do this one has not filled in the page's blank fields before pausing. See that as a problem for anyone who does not read the instructions quickly. Otherwise, I think used once teaches one all needed to know.

(By the way, for the technically inclined I use Firefox 3.5.5 to access the calculator. No problems noted. I assume that the calculator is compatible with Internet Explorer).

Indiana Case Law: Contempt

Vandenburgh v. Vandenburgh presents an unique defense or two to a contempt finding.

While reading this I kept hearing this phrase in my head: Do not try this at home, kids.

Before getting to the father's argument, explaining what father did may help - father calculated his own support worksheet and started paying the amount calculated by him. (See pages 8 - 9). This might also be father's first argument:

Father invites us to hold that a party who disregards an existing court order for
payment of child support may avoid contempt by calculating an amount he believes is more appropriate and then paying the amount he has himself calculated. Father offers no legal support for this premise, and we decline to adopt it....

Father makes a clearer argument (page 9 - 10) here:

We also find offensive Father’s suggestion throughout his argument on this issue that his contempt is the trial court’s fault. E.g., ―[Father] had no support arrearage until one was judicially created when Magistrate Johnson held the support matter under advisement for nearly one (1) year after the hearing, then made the support modification retroactive . . . .‖ (Br. of Appellant at 11-12.) See also id. at 18: ―Did the court abuse its discretion in finding [Father] in contempt when the prior judge failed to rule on the
pending petition to modify for over one (1) year when there was a clear modification of support warranted . . . .‖ (Underlining and bold type removed.)

Yeah, right. The Court of Appeals responded to this argument as follows:

The trial court did not abuse its discretion when it found Father in contempt.

Contempt occurs when there is a willful and intentional disobedience of a court order. Court orders come from judges and no one else.

Indiana Case Law - Parenting Time Credit

Yes, a bit behind time reporting on Vandenburgh v. Vandenburgh as the decision dates back to November 16. DIVORCE LAW INDIANA has already reported on this case with its Indiana Family Law Case Update: parenting time credit isn't automatic. The case makes a good introduction into how courts interpret statutes and Child Support Guidelines.

The father having the children on Monday and Thursday nights raised the parenting time issue. The Indiana Court of Appeals noted that Indiana Child Support Guideline 3(G)(4) does not specify an outcome but gives discretion to trial courts (relying on Grant v. Hager, 868 N.E.2d 801, 802 (Ind. 2007). (Opinion at 3).

The Court of Appeals laid out the law on statutory interpretation in this passage (Opinion at 3):

In Sherrard v. Bd. of Comm’rs of Fulton County, 151 Ind. App. 127, 130, 278
N.E.2d 307, 309 (1972), we noted the rule of statutory construction that ―[w]ords and phrases shall be taken in their plain, or ordinary and usual, sense. Technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.‖ (quoting Ind. Code § 1-1-4-1).

For those thinking, the Child Support Guidelines are not statutes - you are correct. The Indiana Court of Appeals commented on that fact, too.

We acknowledge this guideline is not a ―statute,‖ but believe this rule provides useful guidance in this situation, as it does in contract interpretation. See Armstrong v. Federated Mut. Ins. Co., 785 N.E.2d 284, 292 (Ind. Ct. App. 2003) (when interpreting a contract, clear and unambiguous language will be given itsplain and ordinary meaning), reh’g denied, trans. denied 804 N.E.2d 750 (Ind. 2003).

Which lead to this conclusion:

We do not believe language in the Child Support Guidelines must be interpreted
―in a technical nature, and accordingly hold the language ―may grant the noncustodial parent a credit toward his or her weekly child support obligation‖ means what it says – such credit is not mandatory. See Grant v. Hager, 868 N.E.2d 801, 802 (Ind. 2007) (noting under the Guidelines, a Parenting Time Credit is ―authorized‖ based on the number of overnights children spend with the non-custodial parent). We accordingly decline to hold the trial court was obliged to grant parenting time credit just because Father asked it to and provided evidence that might permit such credit.

I think passage contains some ideas that non-lawyers should absorb about the parenting time credit:

The Child Support Guidelines contain a formula for calculating parenting time
credit based on the number of ―overnights per year that the noncustodial parent spends with the children. Child Supp. G. 6 Table PT. The commentary to the guidelines provides an ―overnight ―should include . . . the costs of feeding and transporting the child, attending to school work and the like. Merely providing a child with a place to sleep in order to obtain a credit is prohibited.‖ Child Supp. G. 6 cmt. The rationale behind the parenting time credit is that overnight visits with the noncustodial parent may alter some of the financial burden of the custodial and noncustodial parents in caring for the children. Young, 891 N.E.2d at 1048. Because calculating the amount of financial burden alleviated by an overnight visit is difficult, the guidelines provide a standardized
parenting time credit formula. Id. Not all visits in which a child stays overnight may qualify for the parenting time credit. Id.

Indiana Family Law Resources

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

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

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

Every parent should bookmark the first three links.

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

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

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

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

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

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

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

Child Support: Overpaying

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

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

Husband pays via wage garnishment.

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

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

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

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

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

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

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

Moral of Case: wake up and get with it.

Fayette County: CHILD SUPPORT GUIDELINES

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

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

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

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

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

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

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

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

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

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

Fayette County: Child Support Orders and Mandatory Discovery

Indiana law gives the option of modifying child support to the date of filing a Petition to Modify Support.  Twenty-two years ago, it was pretty much impossible to get a Madison County court to modify back to the date of filing.  That has changed.  Fayette County explicitly shifts to an expectation that child support will go back to the date of the filing of the petition.

It has been standard in most counties around Madison County - the general area in which I usually practice - to issue a Motion to Produce and/or Interrogatories which have their own requirement of updating information.

LR21-FL00-FL-12

CHILD SUPPORT ORDERS

There is hereby created a rebuttable presumption that provisional child support orders shall be made retroactive to the date of the Initial Provisional Order Hearing.  Such presumption may be rebutted upon a showing that such retroactivity is inappropriate under the facts of a particular case.

There is hereby created a rebuttable presumption that modification of post-decree child support orders shall be made retroactive to the Date of the first hearing on the petition for modification.  This Rule shall not apply where a change of child custody is involved.

At least fourteen (14) days before the scheduled provisional or modification hearing, the parties shall exchange their three (3) most recent pay stubs, most recent W-2 and tax return, 1099's for income earned, and any documentation as to unemployment compensation or disability pay received within the last year

Reading Around: Social Security FAQ, Sperm Donors Paying Child, More Social Networking Troubles

Another post of selected articles that bear some looking at but not quite needing comment from me.

What I would call a Social Security FAQ from The Ohio Law Blog:  Commonly asked Social Security Disability / SSI questions.

Gay Dads, Surrogacy and Portable Parenthood discusses a recent Pennsylvania case imposing a child support obligation on a sperm donor.

Gabriel Cheong published Same-Sex Marriage Statistics and it packs a punch for all of its brevity. I think most lawyers see this as an issue of fairness being denied to a select group.  Most of the political talk on the subject miss these points:  1) the state court decisions are based on state constitution provisions incorporating the natural rights of the Declaration of Independence, 2) by denying these rights we are saying that we can deny other natural rights, and 3) the granting of rights cannot constitutionally detract from our religious rights.  Good job, Mr. Cheong.

A bit more on the McCourt divorce from Family Law Guy in his McCourts: Minding (And Dividing) The Family Store. I noted this case here.  Still glad Indiana is not a community property state but it made me think of what might happen to the Yankees if New York were a community property state.  The Red Sox might want to think about this....

If you think your divorce is/was bad, I offer Billion Dollar Divorce as an antidote.

Maryland Father's Rights Blog nails why to be very discreet with social networking sites with his Social Networking and Litigation:

But if I do have to try a case, evidence is the thing that either wins, or loses, my case. It’s true in any litigation, whether it’s a divorce case with adultery allegations, or complicated financial issues....

We may know things - call them facts.  But if we cannot get those facts before the court, then they are not evidence.  Photos of partying the night away posted to a MySpace page open to the public becomes evidence rather easily.  Related to this:  Ed Poll's Revenge and Social Media.

Finally,  a few words about bankruptcy and divorce from Upstate Family Law Blog.  Check out Bankruptcy During Divorce.

New Divorce and Family Law Blogs

Bankruptcy and divorce, two subjects existing closer than will please many is the subject of The Interplay Between Bankruptcy and Divorce Law in Virginia. Not exactly a zinger for a blog name but spot on accurate for its content.  The posts concentrate on Viriginia, naturally.  Which does not mean it lacks value for Indiana - just check its bankruptcy reports against our Seventh Circuit.  (I do not expect many differences but what differences exists will probably be significant.)

I found interesting what differences exist between Indiana and Virginia in its Top Ten Costly Divorce Mistakes to Avoid During a Recession (as well as good points for Hoosiers, too):

1. Adultery may eliminate spousal support in Virginia.

Even if our temporary maintenance equals their spousal support, there is no support for this in our statute.  On the other hand, I think our economy and the closeness of income between parties makes maintenance (temporary or otherwise) difficult to get.  For more on Indiana maintenance go my archived articles.

2. Be aware of formulas and guidelines for determining support in Virginia: child support guidelines are the presumptively correct starting point for support; pendente lite spousal support: w/child – 28/58%, w/o child – 30/50%.

This is true for Indiana, too.  Diverting from our Child Support Guidelines means having a very good reason.

3. Alimony: request it, reserve it, or lose it.

Not got alimony in Indiana but maintenance we do have.  Request a provisional hearing and ask for temporary maintenance and save permanent maintenance for the Final Hearing.  But go back and see my comment to 1.

4. You have 2 years to file for an annulment and you may lose your right by cohabitation after knowledge of the facts.

Looks like annulment may be as hard to get in Virginia as in Indiana.  Cohabitation is also a defense in Indiana.  This did point out to me that there is no explicit statute of limitations for annulment in Indiana under the Indiana Code (and certainly none mentioned in any of the available cases).  I suppose that our general statute of limitations on fraud may apply.  For more about annulment in Indiana, follow this link to the annulment articles archive.

5. Do not delay the filing of a motion to modify support upon a material change in circumstances.

Damned good advice.  This applies everywhere.  Even when there is not a recession.  Do not say that you cannot afford a lawyer - find one that will unbundle services or one that takes payments.  Getting behind in your child support means contempt, which can mean jail.  You figure out which is cheaper - a lawyer or jail time.  For my articles on contempt, go here.  For my atricles on attorney fees go here, and for child support articles follow this link.

6. Judges are hostile to the concept of separating under the same roof in Virginia.

Never seen this problem in Indiana.  Especially locally with our post- General Motors economy, judges can have no problem with two people living together who do not want to be married any longer.

7. A suit for a divorce from bed and board can be filed immediately in the Circuit Court. You may be able to obtain pendente lite relief for temporary support, attorney’s fees and costs, protective orders, temporary custody and child support, exclusive use of the marital residence, or a freeze on assets.

Take out the "from bed and board" and add after Circuit Court "or Superior Court", and  take out "protective orders" and , and you have a good description of what Indiana courts can do.  Protective orders need filing separately here.  I have an arichive of my aticles on our courts and an archive on protective orders.  I put in these links so that more specific information is can be gotten to, please use them to get at this information.

8. Consult with your tax advisor concerning the tax consequences of spousal support, allocation of the dependency exemption, exclusion of gain from sale of marital residence, etc.

Another good idea that applies here as well as Indiana.

9. Be careful about leaving the marital residence without a separation agreement.

I do not think this is as a lethal in Indiana as it appears to be for Virginians.   That any agreement is a good thing, I will not deny.

10. Consider the possibility in your agreement that one spouse may file for bankruptcy relief.

Always, always consider the fact of bankruptcy.   Maybe it is all my years when I did practice consumer bankrutpcy law but I am a bit surprised by lawyers who do not think of bankruptcy.

McLean County Divorce comes from Illinois lawyer, Jon D. McLaughlin, with me having a bit of concern over the two months from his last post.  However, Hoosiers still might learn from his Change of Child Custody and Simple Divorces (we have a better procedure here). I have some quibbles with his Suggestions for Fathers going through a divorce but on the whole, it is a good collection of suggestions for Indiana fathers.  Let us hope that Mr. Mclaughlin continues to publish his blog.

Okay, it is Canadian but Collaborative Practice Canada does a more than adequate job of promoting colllaborative law.  I cannot say that anything specifically applies to Indiana but that has is not quite the point either.  If the general public wants a less adversarial approach to family law cases, then the general public needs to know that an alternative not only exists but why it is preferable.  That said, give a look at Collaborative Law - in the interests of families and children..


 Another family law blog, this time from California's Orange County.  Hence the name being Orange County Family Lawyer Blog. It looks fairly new but the articles are clearly written and succinct.  Still fairly new and may interest those who want to contrast Indiana's courts with another state.