Cooper Legal Services Dwayne E. Cooper, Atty at Law

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Common Questions

1. Divorce - What to do if your spouse (or your) wants a divorce

2. Property Settlement - Who will get what

3. Child Custody - What to do if you want (or don't want) the children

4. Child Support - What is a fair amount of child support; what should I do if the ex-spouse is not paying child support

5. Visitation - What to do if your ex-spouse is denying you access to your children

6. Paternity - Who is the father of the child

7. Child Abuse/Neglect - What to do if your spouse is abusing your children

8. Spousal Abuse - What to do if your spouse is abusing you

9. Adoption - What to do if you want to adopt a child

10. Emancipation - What to do if the child wants to be free

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"Family Law Guide"

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1. Divorce - What to do if your spouse (or you) wants a divorce

No kidding here folks...quick action is imperative in divorces. Oftentimes, the first spouse who gets to the courthouse will often win (temporarily) their choice of the family possessions, including the house and car, and temporary custody of the children.

With the use of modern technology, good lawyers should have no problem filing divorce actions within sixty minutes...if necessary.

Quick action is also important if a protective order or restraining order is needed in the case.

However, before racing to the courthouse, a person needs to be completely sure that a divorce is necessary. In Indiana, there are four statutory grounds for a divorce:

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.

I see and hear a lot of strange things in this area and I could go on for hours and hours about all the terrible consequences I have seen from fouled-up divorces.  Let me just say this...Everybody knows somebody who has been through a divorce.  However, this is not the time to be listening to lay advice as to what you should do.  There is nothing worse than getting legal advice about divorces from Betty at work or good ol' Uncle Joe...

This is the time when you absolutely must contact a good lawyer!  A lawyer has specific training on how to deal with the many issues that can arise from a divorce in Indiana

A common misconception that I often hear is that "getting a lawyer means that the divorce will automatically turn nasty."  And, obviously, some lawyers will even bark super-loud to feed this misconception in an attempt to get clients.

Allow me to set the record straight folks...good lawyers know that the bark of these misfit lawyers are usually worse than their bite!  You see, a good lawyer should be able to "calmly and rationally help achieve your goals during a divorce."  A good lawyer stays up to date on the latest cases in the family law area and will do those extra things that help make sure that your divorce doesn't turn nasty.

2. Property Settlement - Who will get what

The court will divide the property of the parties, whether owned by either spouse before the marriage or acquired by either spouse in his or her own right after the marriage and before final separation of the parties or acquired by their joint efforts.

In Indiana, the division of marital property can be made in several ways. The court will divide the property in a just and reasonable manner by:

1) Division of the property in kind

2) Setting the property or parts of the property over to one of the spouses and requiring either spouse to pay an amount, either in gross or in installments, that is just and proper

3) Ordering the sale of the property under such conditions as the court prescribes and dividing the proceeds of the sale

4) Ordering the distribution of benefits that are payable after the dissolution of marriage, by setting aside to either of the parties a percentage of those payments either by assignment or in kind at the time of receipt.

Indiana courts presume that an equal division of property should be made. However, this presumption may be rebutted by relevant evidence that an equal division would not be just and reasonable.  Indiana courts will look at factors like:

1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.

2) The extent to which the property was acquired by each spouse before the marriage; or through inheritance or gift.

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.

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 final division of property and a final determination of the property rights of the parties.

Additionally, it is possible to get spousal maintenance/alimony for up to 3 years if the court finds that a spouse is physically or mentally incapacitated (under certain circumstances) or if a spouse lacks sufficient property to provide for their needs and the spouse is taking care of a child whose physical or mental incapacity requires the spouse to forgo employment.

3. Child Custody - What to do if you want (or dont want) the children

In Indiana, the court will determine custody by looking at the "best interests of the child."

Indiana law (IC 31-17-2-8) clearly states that there is no presumption favoring either parent. The court must consider all relevant factors, including the following:

1) The age and sex of the child.

2) The wishes of the child's parent or parents.

3) The wishes of the child. More consideration is given to the child's wishes if the child is at least fourteen (14) years of age.

4) The interaction and interrelationship of the child with the child's parent or parents, the child's sibling, and any other person who may significantly affect the child's best interests.

5) The child's adjustment to the child's home, school, and community.

6) The mental and physical health of all individuals involved.

7) Evidence of a pattern of domestic violence by either parent.

A guardian ad litem may be appointed by the court to represent and protect the best interests of the child. The court may also assign additional duties to the GAL such as assuring that the custodial or visitation terms of an order are being carried out as required by the court.

The court may award joint legal custody if it is in the best interests of the child. Joint legal custody usually means that both parents may determine the child's upbringing, including the child's education, health care, and religious training.

In determining whether joint legal custody is prudent, an Indiana court will consider:

1) Whether the persons awarded joint custody have agreed to an award of joint legal custody.

2) The fitness and suitability of each of the persons awarded joint custody

3) Whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare

4) The wishes of the child. More consideration is given to the child's wishes if the child is at least fourteen (14) years of age

5) Whether the child has established a close and beneficial relationship with both of the persons awarded joint custody

6) Whether the persons awarded joint custody live in close proximity to each other and plan to continue to do so

7) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody

Modification of an earlier child custody order is possible if the modification is in the child's best interests and there is a substantial change in a relevant factor listed in IC 31-17-2-8. However, an Indiana court will not hear evidence on a matter occurring before the last custody hearing unless the matter relates to a change in the factors relating to the best interests of the child as described by IC 31-17-2-8.

4. Child Support - What is a fair amount of child support; what should I do if the ex-spouse is not paying child support

In Indiana, the court may order either parent or both parents to pay any amount reasonable for support of a child, without regard to marital misconduct, after considering all relevant factors, including:

1) the financial resources of the custodial parent

2) the standard of living the child would have enjoyed if the marriage had not been dissolved or the separation had not been ordered

3) the physical or mental condition of the child and the child's educational needs

4) the financial resources and needs of the noncustodial parent.

The child support order may also included amounts for the child's education, special medical, hospital or dental expenses and/or fees mandated under Title IV-D of the federal Social Security Act.

There is a rebuttable presumption that the state-approved Child Support Guidelines are correct. However, there are many situations that may prompt a judge to deviate from the Guideline amount.

Child support can be terminated when child the child reaches age 21. However, it is possible that child support can be terminated before the child reached 21 if:

1) Child is emancipated before 21 or

2) Child is incapacitated or

3) Child is at least eighteen (18) and has not attended a secondary or post-secondary school for the prior (4) four months and is not enrolled in a secondary or post-secondary school and is capable of supporting theirselves through employment.

Modification of an earlier child support order is possible if:

1) Upon a showing of changed cirsumstances so substantial and continuing as to make the terms unreasonable or

2) If the previous child support order differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines and the order was issued at least 12 months before the petition requesting modification was filed.

In Indiana, unless the Court enters another method of payment, child support payments are to be paid to the clerk's office.

If one does not pay child support as ordered, the custodial parent should hire a lawyer to help enforce the order. There are many things a court can do to enforce a child support order. The court can issue an assignment of wages or other income (income withholding order) or hold a person in contempt if there is an intentional violation of a support order.

A possible finding of an intentional violation of a child support order is very serious. Those found in contempt may be ordered to perform community service without pay or to think things over in jail. Furthermore, the court has authority to suspend one's professional, occupational license or driving privileges. Those accused of violating a child support order should definitely consult a lawyer...

Click here to see the Indiana Child Support Guidelines!

5. Visitation - What to do if your ex-spouse is denying you access to your children

A parent who doesn't have custody is entitled to reasonable visitation rights unless the visitation might endanger the child's physical health or significantly impair the child's emotional development.

Visitation rights may be enforced by a permanent injunction against the custodial parent. If the court finds that a custodial parent intentionally violates the injunction without justifiable cause, the court must find the custodial parent in contempt. The court then must order the exercise of visitation that was not exercised due to the violation and may order payment by the custodial parent of reasonable attorney's fees, costs and expenses. Furthermore, the court may order the custodial parent to perform community service without compensation.

Modification of an earlier order granting or denying visitation rights is possible if the modification is in the child's best interests.

6. Paternity - Who is the father of the child

Paternity is the relationship between a father and his child. Establishing paternity is the process of making this a legal relationship. Interestingly enough, Indiana courts usually will not recognize a father-son relationship unless that legal relationship has been established.

There are several reasons why establishing paternity is very important:

1) Gives the child a sense of who he/she is.

2) Gives both parties a greater opportunity to develop a father-son relationship.

3) Allows the child to know if he/she has inherited special health problems.

4) Gives the child right to possible benefits from the father.

- Social Security from a deceased or disabled parent

- Inheritance rights

- Veteran's benefits

- Life Insurance

- Child Support

7. Child Abuse/Neglect - What to do if your spouse is abusing your children

The U.S. Department of Health and Human Services estimates that more than 1 million cases of child abuse and neglect will be reported this year. As a result of abuse, approximately 15,000 children will suffer permanent brain damage and as many as 4,000 children will be killed.

Indiana law requires all persons to report suspicions of abuse or neglect. Reports should be based on facts that a real threat exists, not merely on substandard living conditions or parenting practices. All reports should be directed to the nearest law enforcement agency or child protective services. A good lawyer will help you obtain the assistance you need and obtain the necessary protective orders in your case.

Obviously, there is much question as to what constitutes abuse or neglect. Some of the things that Indiana law lists that may constitute abuse or neglect are the following:

1) Child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision and the child needs care, treatment, or rehabilitation that the child is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court.

2) Victim of sex offense

3) Child's parent, guardian, or custodian allows the child to participate in an obscene performance

4) Deprived of nutrition that is necessary to sustain life or is deprived of medical or surgical intervention that is necessary to remedy or ameliorate a life threatening medical condition

5) Child is born with fetal alcohol syndrome or any amount, including a trace amount, of a controlled substance or a legend drug in the child's body

In order to decrease child abuse and neglect, your awareness and cooperation is very important. Children are precious. Children also require emotional support from their parents in order to develop a sense of self-confidence and worth.

8. Spousal Abuse - What to do if your spouse is abusing you

A protective order can be obtained if your spouse is abusing or harrassing you or your children. The protective order can be issued immediately.

Protective orders remain in effect for one year and can be renewed for an additional year.

With the help of your lawyer, protective orders are filed with the appropriate law enforcement agencies and can be enforced through criminal penalties.

Spouses who violate protective orders can face possible criminal charges of invasion of privacy, battery, stalking, violation of a stay away order.

9. Adoption - What to do if you want to adopt a child

In Indiana, adoption can take place by direct private placement or a licensed private or public agency.

Adoptions can be simple and they can also be complicated. If you are involved in an adoption process, you should seek a lawyer.

Before an adoption can be approved by the court, a medical report of the health status and medical history of the adoptee and the adoptee's biological parents must be released to the adoptive parents. This medical report must not contain any identifying information.

Additionally, all records pertaining to the adoption are sealed and may not be disclosed unless there is a court order.

Generally, most Indiana courts will require a child-placing agency or county welfare department to do a report and recommendation as to the advisability of the adoption. Usually, a period of supervision is necessary before an Indiana court will grant the adoption.

Generally, each living and known parent of a child must consent to the adoption as must any adoptee who is 14 years or older. However, there are several exceptions to this rule.

10. Emancipation - What to do if the child wants to be free

It is possible for the juvenile court to emancipate a child if the court finds that the child:

1) Wishes to be free from parental control and protection and no longer needs that control and protection;

2) Has sufficient money for the child's own support;

3) Understands the consequences of being free from parental control and protection

4) Has an acceptable plan for independent living.

The juvenile court can also partially emancipate the child.

The consequences of the emancipation may include the following:

1) Suspension of the parent's or guardian's duty to support the child.

2) Suspension of the following:

- parent's or guardian's right to the control or custody of the child.

- parent's right to the child's earnings.

- Empowering the child to consent to marriage.

- Empowering the child to consent to military enlistment.

- Empowering the child to consent to medical, psychological, psychiatric, educational, or social services.

- Empowering the child to contract.

- Empowering the child to own property.

And no...emancipation does not excuse a child from compulsory school attendance.

Please send mail to dwayne@cooperlegalservices.com with any questions or comments that you might have about this web site.

Disclaimer to Reader:: The above is not legal advice and you should not rely on it. Everything on this web page is general information only. Nothing on this web page establishes an attorney-client relationship. If you have a legal question or problem, please consult an attorney.

Home Page | About Cooper Legal Services | What's new on this site? | Contact Dwayne

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Copyright (1997) - Cooper Legal Services, Dwayne E. Cooper, Atty at Law - 317-873-3600; 1-800-959-1825

Send email to dwayne@cooperlegalservices.com with any questions or comments about this web site.