"Family Law
Guide"
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here to check out my recommended books at the Family Law Bookstore!
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.
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.
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.
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!
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.
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
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.
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.
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.
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.
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