One that Hammond family law attorneys sometimes see crop up is when one parent becomes involved with a new paramour, be it a boyfriend or girlfriend or a new legal spouse. It may be uncomfortable for the ex-spouse; beyond that, it could mean changes in the previously agreed-to parenting plan. That’s why it may be wise to avoid inviting new love interests to spend extensive time with one’s children until the developing relationship becomes more serious.

There have been a significant number of cases in which a parent will apply to limit the amount of exposure children have to their ex-spouse’s new boyfriend or girlfriend. In some cases, this desire arises out of legitimate concern, either a fear that the child will form too close an attachment too quickly, or a worry about the child’s safety due to the paramour’s history. In other instances, it’s simply done out of spite or jealousy. more

In either case, it can have a significant impact on the outcome of a child custody case. Take for example the recent case of Nolan v. Huff, before the Indiana Court of Appeals.

Here, according to court records, the parties were married in 2003 and have twins, born in 2010. Father filed for divorce in 2012. At some point during the divorce proceedings, the father began dating a woman, “Kim.” Soon after, Mother began dating Kim’s then-husband, “Tony.”

By the fall of 2013, both parties had worked successfully through mediation, and it was agreed by both sides that neither parent’s significant other would be left alone with the children without the parent being present. When the divorce was finalized, it was also determined that the mother’s boyfriend was not to live with the mother (with whom the children primarily resided) and Tony was not to be alone with the children. Father was given parenting time in excess of Indiana Parenting Time Guidelines.

Two months later, Mother filed a motion to relocate, seeking permission to move across the state to be closer to her parents and asking that her boyfriend be allowed to live with her. In response, Father opposed that motion and alleged the boyfriend was already living with her in violation of the decree.

At a hearing, the woman said the boyfriend stayed overnight at her home 3 or 4 nights a week, but it was not his legal residence. At that hearing, Kim also testified to the court that her still-husband had anger and violence issues and had raped her more than 20 times over the course of 18 months when she refused him sex. She also said he was violent with their own children.

The court ultimately granted Mother’s request to relocate, but found in her in contempt of court for allowing her boyfriend to live with her in violation of the order, citing her “blatant disregard” for it. The penalty for that was taken under advisement, but the court did award father more parenting time.

Mother appealed, arguing parenting time should not have changed, as neither party had requested it. The appeals court affirmed, noting that the mother impliedly consented to having custody considered when she petitioned the court to relocate, and the court was entitled to consider all matters before it.

This case reveals why parents must tread carefully when it comes to bringing a significant other into their lives in the midst of child custody disputes.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Nolan v. Huff, May 20, 2016, Indiana Court of Appeals

More Blog Entries:

Andrick v. Andrick – Indiana Child Custody Modification Order Affirmed in Part, Remanded in Part, May 20, 2016, Hammond Family Law Attorney Blog

But there are still some gray areas in our nation’s civil court systems with regard to these relationship. Take for example the recent case of Luttrell v. Cucco, weighed in on by the Virginia Supreme Court.

At its core, this case was a dispute over spousal support. As is common in many temporary spousal support agreements, a provision indicated that the support agreements were subject to termination in the event of “cohabitation,” as defined in Va. Code 20-109. The law states that maintenance and support of an ex-spouse may be discontinued upon cohabitation, remarriage, or death. Specifically, the law states that an ex-spouse who has been “habitually cohabitating with another person in a relationship analogous to a marriage for one year or more” is subject to termination of spousal support benefits. more

In this case, plaintiff (Husband) and defendant (Wife) were married in 1992. They later separated and Wife filed for divorce in 2007. Pursuant to the divorce agreement, Husband was to pay Wife monthly spousal support for a term of eight years. However, those payments could be terminated earlier if the wife died, remarried, or began cohabitating in a marriage-like relationship. The agreement also indicated that reasonable expenses incurred by a party in the successful enforcement of the agreement would have to be paid by the defaulting party.

In 2014, the husband hired a divorce lawyer and sought an amendment of the spousal support agreement, arguing that his ex-wife was engaged to be married and had been living continuously with her fiancée for at least a full year. He sought to terminate his spousal support agreement, and he also wanted his ex-wife to refund the equivalent of one year’s worth of payments.

At the hearing, Wife did not dispute the allegations, but she contended that because her relationship was with another woman, it wasn’t technically “cohabitating” under the terms of the law.

The circuit court decided that the right to marry was a separate question from the issue of cohabitation for spousal support purposes. Citing dissent in a prior Court of Appeals decision, the court ruled that only opposite-sex couples could cohabitate for purposes of spousal support termination. Several prior decisions had held that cohabitation be interpreted as a “man and a woman” and as “husband and wife.” Husband’s motion was denied and he was ordered to pay his ex-wife’s legal fees.

He appealed. The court of appeals affirmed, but the Virginia Supreme Court reversed.

Justices stated that they favored an interpretation that would further the statute’s purpose, rather than obstruct it. The court noted that the legislature, in wording the law, had not modified the word “person” with the phrase “of the opposite sex,” meaning it could include persons of either sex. The court further noted that although same-sex marriage wasn’t legal in Virginia in 1997 when the law was written, that was not relevant because the phrase “a relationship analogous to marriage” doesn’t equal “marriage.”

Therefore, a same-sex relationship could be considered “analogous to marriage,” regardless of whether the two could legally marry (which, of course, now they can). The lower court’s ruling was reversed.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Luttrell v. Cucco, April 28, 2016, Virginia Supreme Court

More Blog Entries:

Ahls v. Ahls – Appeals Court Favors Wife in Indiana Divorce Settlement, April 20, 2016, Indiana Divorce Lawyer Blog

But it was no laughing matter.

The case came about because, as The Daily Mail reported, the man was still legally married to that woman, his long-estranged wife. The pair had never formally divorced. In Iowa – just like in Indiana – a woman’s husband is the presumed father if:

• He and his wife were married when the child was born;
• The child is born no later than 300 days after the marriage ends.

more

The father in that case spoke to the state agency, explained the situation and offered to take a paternity test. However, the state agency informed him it would not be so simple. His only option, she said, is to “de-establish” paternity. That means he’s got to hire and attorney and take the matter to court. And in the meantime, he’s going to be paying child support.

It may seem nonsensical, but the law was written to ensure that children would be protected. But of course, infidelity is a reality in many unions. And then of course, there are situations like this in which spouses are long-estranged.

This case makes a strong argument to avoid putting off divorce. Beyond this example, some reasons you may want to avoid a long-term separation:

• Lack of control over expenditure of marital assets;
• Ample opportunity to hide assets;
• Divorce settlement may ultimately be less if either of your financial circumstances change;
• Spouse could move out-of-state or out-of-country, complicating legal matters;
• Alimony laws in your state could change;
• If your spouse gets into trouble financially, you may be liable too.

And then, of course, there is the matter of future relationships and future children.

When it comes to paternity, there have been many Indiana child support cases in which men have been expected to pay for children who are biologically not their own because the law presumed they were the father.

Some examples of this include:

• Parents not married with no formal establishment of paternity, but father has been informally supporting child and holding child out as his or her own;
• Parents are married – or in the process of divorcing – but have not yet finalized that divorce;
• Parents are divorced and father is paying child support, but now has reason to believe the child is not biologically his own;
• Paternity has been established by means other than a formal DNA test and now father wants to challenge paternity with a formal test.

In the first scenario, the father generally won’t be ordered to pay unless a paternity test establishes he is the biological father. Otherwise, he wouldn’t be required to pay support unless he chose to do so.

In the other scenarios, the father may have to request a paternity test and after that, file a formal request to terminate the child support order and ask that the child not be considered a product of the marriage.

Keep in mind, though, courts generally will not overturn a finding of paternity after two years of being established, no matter what the circumstances.

If you have concerns about establishing paternity, de-establishing paternity or arranging for child support, contact our Gary, Indiana paternity attorneys.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Man protests law requiring him to pay child support for another man’s child, March 24, 2016, By Tribune Media Wire

More Blog Entries:

Betancourt v. Betancourt – Indiana Child Support Arrears Dispute, March 11, 2016, Gary Paternity Lawyer Blog

This is not to say that fathers aren’t a part of the children’s lives, but the parents are not in a marital relationship. Even if this has no bearing on the relationship parent has with child, it may have implications for the child’s financial stability.

IC 31-14 sets forth laws regarding establishment of paternity, including methods, persons permitted to file, venue and other provisions. IC 31-14-5-3 spells out some of limitations on paternity actions.

Essentially, both parents, if unmarried have three days after the child is born to establish paternity at the hospital via paternity affidavit. If mother is married, husband is presumed to be the father. A man will also be presumed the father if mother has been divorced or widowed less than 10 months. Otherwise, mother or father will have to go through additional administrative steps – and possibly the courts.more

The law says the mother, man alleging to be the child’s father or the state must file a paternity action no later than 2 years after the child is born unless:

• Both mother and father jointly waive the limitation and file jointly;
• Support has been furnished by the father acting on his behalf;
• Father acknowledges in writing he is father;
• Father files petition after mother acknowledges in writing he is child’s biological mother;
• Petitioner was incompetent at time child was born;
• Responding party can’t be served with summons during the two year period.

Even in these situations, the action has to be brought within two years or it is forever lost.

An example of a situation in which paternity rights can be lost by waiting too long to file was recently seen in the case of Bryan M. v. Anne B. This was a matter weighed by the Nebraska Supreme Court, but that state has similar laws regarding limitations on establishment of paternity.

According to court records, a man appealed dismissal of a paternity action by the lower court, brought on behalf of himself and “next friend” of the minor child in question. He sought declaration of paternity and custody of a child who was born 8 years before his action was filed.

In that state, statute of limitations on paternity action is four years. However, he argued the statute should be tolled based on legal doctrines of fraud and equitable estoppel because the mother had made misrepresentations that he was not the father.

Mother was married to another man, and had been since 1999. In five years of marriage, the two tried unsuccessfully to have a child. Plaintiff had been married 25 years and had two children.

In late 2003 and early 2004, mother and plaintiff regularly engaged in an extramarital affair and regularly had sexual intercourse without contraception. Mother also continued relations with her husband.

When mother became pregnant, she ended relationship with plaintiff. Plaintiff repeatedly inquired about whether he was father, but was told he was not. When the child was born in 2004, plaintiff again asked if he was the father and was told no.

Meanwhile, the husband raised the child as his own. Child had only limited contact with plaintiff at meetings that were unplanned. Husband for all intents and purposes was the child’s father.

In 2012, mother and plaintiff resumed their extramarital affair. At that time, plaintiff requested a DNA test to determine whether he was the father. The test showed he was, in fact, the child’s biological father.

But that doesn’t automatically grant legal rights. The following year, plaintiff filed his initial complaint, seeking to establish paternity and custody. In so doing, he alleged the four-year statute of limitations on such actions was unconstitutional, and even if it wasn’t, should be tolled based on mother’s alleged deception.

District court rejected this argument. First, the court found plaintiff hadn’t been deceived, but simply failed to exercise diligence after the child was born. It was also established plaintiff didn’t initially want to be the father because he wanted to salvage his own marriage.

Plaintiff also tried to name himself “next of friend” to child because, while fathers in the state only have four years to establish paternity, someone who is a guardian or “next of friend” to the child can do so anytime before the child’s 18th birthday. (Again, this is just in Nebraska.) However, the court denied him this designation, as the boy lived solely with his biological mother at the time of this action.

The Nebraska Supreme Court upheld this finding.

Those in Indiana exploring the possibility of legally establishing paternity – and all the benefits and implications that come with it – should contact an experienced family law attorney to learn more about your options and obligations.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Bryan M. v. Anne B., Feb. 12, 2016, Nebraska Supreme Court

More Blog Entries:

Gertiser v. Gertiser – Indiana Supreme Court Weighs Spousal Maintenance, Dec. 20, 2016, Gary Child Paternity Lawyer Blog

That was the ruling handed down by the Indiana Court of Appeals in the recent case of In Re: the Marriage of Carr v. Carr.

This was a couple who had been married for 16 years and had two children together when the husband sought a divorce. For 14 years before the pair were married, husband had worked in the military, and his service continued while the pair were together. Prior to their marriage, the husband had begun building up his pension. During the marriage, that pension grew. He’d also earned a pension prior to the marriage from a private company.more

While the two were married, both made substantial contributions to the acquisition of marital assets, though husband’s contributions were more financial while wife’s were more non-economic.

Husband filed for divorce in Indiana while he was deployed overseas. He expected when he returned to leave the military and find a job that paid less, but his earning capacity still far outpaced his soon-to-be-ex-wife’s.

The pair agreed on most issues – including the parenting time schedule with the kids. However, they could not agree over the value and treatment of husband’s civilian and military pensions. An expert was hired to calculate the value of these assets. He determined the survivor benefit wife would earn if husband died was $2,750 a month or $226,500 total. The total amount that could be earned under the pension was $1.2 million.

Wife countered this by pointing out that her non-economic contributions to the marriage allowed her husband to stay in the military and if he’d not been able to do so, he would have no pension. She stated she counseled him to maximize his retirement benefits, and therefore she should be entitled to half of the $1.2 million.

Wife received half of the total military pension’s present value, which was $315,500.

There was dispute between parties about whether this should be considered a “marital asset.” If it was, wife would be entitled to fewer other assets in an equitable distribution arrangement. Wife pointed out – and trial court agreed – there was no guarantee she would ever collect survivors’ benefits because she would have to live longer than him to do so. Accordingly, the court didn’t count the survivor benefits as a marital asset. Ultimately, she was awarded more than $800,000 of a total marital estate of more than $1.3 million.

Husband appealed, arguing the survivor benefit plan should have been counted as a marital asset.

The appellate court agreed. Justices noted that actually, this benefit to the other spouse because it creates an incentive for the pension-earner to secure a survivor benefit plan in the first place.

The court ordered that the case be remanded to the trial court to either justify the 65/35 split of assets, or to conform it to the 60/40 split that resulted when the survivor benefit plan was added to the marital pot for distribution of assets.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

In Re: the Marriage of Carr v. Carr , Jan. 27, 2016, Indiana Court of Appeals

More Blog Entries:

Gertiser v. Gertiser – Indiana Supreme Court Weighs Spousal Maintenance, Dec. 20, 2016, Hammond Divorce Lawyer Blog

Parents can choose to voluntarily terminate their parent-child relationship, but only when the action is initiated by the Department of Child Services or an adoption agency. Cases if involuntary termination are initiated by DCS. more

Success in these cases is going to depend on a myriad of factors, not the least of which is the dedication and skill of your Indiana family lawyer.

If a termination of parental rights is granted, the parent does have the option of appeal, and that’s what happened recently in In the Matter of Termination of the Parent-Child Relationship of K.R. and T.R. v. Indiana Department of Child Services.

According to court records, plaintiff/ mother has four children, two of whom are still minors. The youngest child was born in 2010. When the older children were young, DCS was involved with mother for various issues. When the youngest was born, the agency was notified when mother admitted to hospital staffers she used prescription pills and marijuana while pregnant.

When the child was 3-years-old, law enforcement reportedly responded the child was left unattended, strapped in the back seat of a vehicle in 80-degree weather for 35 minutes. Mother was arrested for felony neglect and custody of child went to a relative.

DCS launched investigation and found mother was using K2 spice around the time child was removed. However, mother denied needing drug treatment because she insisted she could quit whenever she chose.

While classifying the girl as a “child in need of services,” the agency did work on reunification. Mother lived with her brother and had no job. Her contact with DCS was irregular and the brother was arrested for methamphetamine possession after a search of the home.

Mother’s subsequent visitation with her daughter was characterized as “irregular,” at least partially because she was in and out of jail for alleged felony thefts and drug-related issues. She was locked up during the CHINS hearing and termination proceedings.

Mother was ordered to undergo mental health evaluation, have contact with her child, attend parenting classes and complete drug treatment.

However, she was sentenced to five years in prison on her pending charges, with two years suspended. She did complete a parenting class, faith based seminar and other programs, but she also had disciplinary issues. She was caught cheating in a literary class and was expelled from that and another program.

In total, mother was locked up for seven months and, over the objections of an appointed child advocate, the two saw each other four times.

Child had been outside her mother’s care for 22 months when a termination hearing was held. She conceded that she hadn’t taken advantage of DCS services, including drug treatment services, mental health evaluation or individual counseling.

The court terminated her parental rights and she appealed. She alleged trial court abused discretion by refusing a 23-day continuance of proceedings until she was released from lockup. She also argued the court erred in termination of rights based on conclusions that issues that led to child’s removal wouldn’t be remedied.

However, the appeals court affirmed, finding no abuse of discretion.

Courts in these cases do value due process for parents, but the primary interest will always be the best interest of the child or children involved. That means having a skilled attorney who is able to convince the family law judge of your commitment and present your actions and intentions in the most favorable light.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

In the Matter of Termination of the Parent-Child Relationship of K.R. and T.R. v. Indiana Department of Child Services., Dec. 31, 2015, Indiana Court of Appeals

More Blog Entries:

Stekr v. Beecham – Deviation from Child Support Guidelines, Oct. 25, 2015, Northwest Indiana Family Law Attorney Blog

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal statute that sets the minimum standards for most voluntarily-established health plans and pensions in private industry, and it’s intended to protect those enrolled.

Under this law, many plans allow for a survivor annuity, meaning if the recipient of the retirement funds dies, the surviving spouse will continue to receive benefits under the plan.

Of course, the person designated as one’s survivor at the time the plan is formed may not be the same person to whom you are married when you die. In the event of a divorce, litigants need to carefully consider the necessary steps to either preserve their access to this benefit or remove the other spouse as a named beneficiary. Many times, a simple declaration in a divorce settlement is not enough. What may be needed is a qualified domestic relations order (QDRO), and even then, there may be certain stipulations. more Our Highland divorce attorneys recognize these factors need to be carefully parsed prior to the finalization of the divorce agreement, or else there is risk the outcome may be unfairly skewed against one spouse or the other.

In the recent divorce case of Vanderkam v. Vanderkam, before the U.S. Court of Appeals for the District of Columbia, it was failure to follow rigid protocol that caused one man to lose out on the opportunity to transfer the survivor annuity from his ex-wife to his new spouse.

Under ERISA, the ex-wife had a survivor annuity under the old plan. However, claimant/ex-husband argues state law – including a divorce decree – required a declaratory judgment indicated that, after his death, those annuity payments be placed in a constructive trust for his estate. District court rejected this claim, finding ERISA preempted any state law or state-court decree that might defeat a spouse’s annuity. That decision was later affirmed by the federal appellate court.

This case presented a conflict between state community property law and ERISA. The question was whether, after the survivor annuity is vested and without a QDRO, the plan holder could use state law to wrestle control of the former spouse’s benefit.

According to court records, the pair married in 1984. Husband worked at a corporation and enrolled in the firm’s retirement plan, designating his wife as the beneficiary of a 100 percent qualified joint and survivor annuity. Husband retired in 1994, at which time the survivor annuity became irrevocably vested in his wife. He began receiving monthly benefits.

Eight years later, the pair divorced. According to the divorce decree, husband was to be awarded all benefits existing by reason of his past, present or future employment.

The following year, husband re-married and wanted to designate his new wife as the beneficiary of the survivor annuity.

A representative with the pension plan indicated it would be allowed if it was carried out pursuant to a QDRO and, in alignment with ERISA, didn’t require an increase of benefits beyond he and his ex-wife’s actuarial estimates for life expectancy.

To further this cause, ex-husband filed a motion in state court to modify the divorce decree such that his new wife would be named the beneficiary of the annuity and calculating those benefits based on the life expectancy of his ex-wife. However, ex-wife opposed the motion, asserting she consented to the divorce decree allowing him retirement benefits because she believed the survivor benefits would be separate and go to her. She indicated the agreement had been a trade-off, especially considering the retirement funds he earned included “quite a large sum.” She also noted she was not a beneficiary on his life insurance policy, and should he die, the annuity would be her only mean’s of providing for the couple’s son.

State court rejected ex-wife’s assertions and entered a “purported” QDRO stripping her of all interest in the retirement fund – including the annuity.

Pending appeal, the company terminated its pension plan and the Pension Benefit Guaranty Corporation became the statutory trustee. After reviewing this case file, PBGC ruled the state-issued QDRO wasn’t valid because it would have required payment of benefits in a form or option not otherwise provided in the existing language. Essentially, if his new wife survived him, she would get benefits for the remainder of her life rather than the remainder of his ex-wife’s life, which would, the agency argued, result in a “bizarre, hybrid” benefit that was otherwise unavailable. Besides that, the survivor annuity as irrevocably vested in the ex-wife within 90 days of the time it started (in this case, when he retired). Thus, the order couldn’t be transferred to the new wife.

Ex-husband then filed a lawsuit in federal court, challenging the finding. The district court upheld the PBGC’s findings, and that decision was later affirmed by the appellate court.

Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Vanderkam v. Vanderkam, Jan. 20, 2015, U.S. Court of Appeals for the District of Columbia More Blog Entries: George v. George – Divorcing an Abusive Spouse, Jan. 20, 2015, Highland Divorce Lawyer Blog

Child support orders in Indiana can still be enforced for parents who are receiving unemployment benefits, but the amount may be significantly less if the court grants a modification in line with current income.

As we emerge from these tough times, we find that some people are still struggling more than others. But in some situations, the courts have found parents who could work and earn more if they wanted – but they aren’t doing it. The courts call this being “voluntarily underemployed.” more A parent who is deemed voluntarily underemployed by the court can be ordered to pay more in child support than what his or her income might otherwise suggest they could afford. Sometimes, the court will allow a grace period for the offending parent to secure more work, but it’s usually on a strict deadline.

In these situations, the court will determine your potential income based on:

• One’s employment potential;
• One’s probable earnings level, based on work history;
• Occupational qualifications;
• Prevailing job opportunities;
• Earnings levels in the community.

One such case, Reilly v. Northrup, recently reviewed by the state supreme court of Alaska, supported a lower court’s finding of the father’s “voluntary and unreasonable underemployment,” and subsequent denial of his request for ordering reduced child support benefits.

Here, the two parents, who were not married, had a son in Alaska before separating. The father moved to Montana, where he worked part-time, repairing and renting out homes and managing a bar. The mother retained physical and legal custody of the child, and the father retained visitation for six weeks during the summer.

Shortly after the move, the father requested his child support be modified due to the fact that his income had fallen. The mother argued he was voluntarily underemployed. The father claimed he couldn’t find full-time work because of his obligations to a special needs daughter from a previous relationship. The superior court did not find his reasoning credible, and as such, denied his child support modification request.

A similar case was heard by the Indiana Court of Appeals in 2008. In the case of Ziegler v. Hunt, the mother alleged the father was $6,000 in arrears on child support. In response, the father requested a modification of the support order.

Here, the father had previously worked as a salesman earning $55,000 annually. However, he was terminated from that post and began working as a wedding photographer, earning about $20,000 annually. He later ceased doing wedding photography and took a job with a student loan firm, earning about $8.50 hourly.

The court found that the husband was voluntarily underemployed because he chose to discontinue his wedding photography business. In reviewing the case (and later affirming the earlier ruling), the Indiana Court of Appeals specifically reviewed Indiana Child Support Guideline 3(A)(3). According to this statute, a parent is voluntarily underemployed when he or she has some history of working and is capable of entering the work force but voluntarily fails or refuses to work or to be employed in a capacity keeping with his her abilities.

The court offered the example of a parent who has a nursing license, yet is choosing to work a minimum wage job. His or her earnings potential will be based on what he or she could earn as a nurse, not what they are earning now.

Most of these cases may not be as clear-cut, so it’s important, whether you are seeking a modification or fighting the modification, that you consult with an experienced Indiana family law attorney.

Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: Reilly v. Northrup, Dec. 20, 2013, Alaska Supreme Court More Blog Entries: Revisiting Indiana Parenting Time a Common Issue in Family Court, Dec. 6, 2013, Hammond Child Custody Attorney Blog

A recent report by the National Center for Family & Marriage Research at Bowling Green State University revealed that the U.S. remarriage rate has plunged by 40 percent over the last two decades.

That doesn’t mean, however, that they’re living in isolation. Rather, our Indiana family law attorneys recognize that many of them are instead opting to cohabit. By living together without the formality of marriage, many couples feel they can avoid the messiness that might ensue should they decide some day to part ways. more Many believe that by not making it legal, they’re keeping it simple.

For some, this may be true. However, if couples live together in the long term, co-mingle their finances, their assets and decide to have children, they could be setting themselves up for an even messier split than if they were married.

There is a misconception that if one party in this non-legally binding arrangement wants to leave, he or she can simply walk out the door, no strings attached. They won’t have to pay for an attorney or endure costly litigation.

However, what they may not realize is that with marriage comes certain legal protections for both parties. For example, Indiana is an equitable distribution state. That means that all marital property – including home sale proceeds, bank accounts, pensions and other assets acquired during the union (including debt) – is divided equitably between parties. So let’s say one half of the couple put all the credit card debt relative to marital expenses in his name, he’s not stuck paying for the entire bill.

Those who simply cohabit, even for decades, don’t have those kind of rights. Indiana does not recognize common-law marriages.

The reality is, the court system is set up to make it easier for those who were married to transition to divorce, with considerations for dividing property, sorting finances and arranging custody. Those same kind of considerations are not made for couples who aren’t married. That’s not to say they can’t seek legal remedies through the courts for these matters, but because the path is less clear, the process can be inexact and the costs can often be prohibitive.

The only exception that helps with clarification in these matters is the cohabitation agreement. It’s similar to a prenuptial agreement, except both parties are in agreement that no marriage is expected to take place.

Typically, the goal of a cohabitation agreement is to hopefully avoid court altogether. It defines in advance how couples will split up property, who should pay which debts and so forth. It’s become an increasingly popular planning tool that in the end can save couples an enormous amount of time and money, should they later choose to separate.

It may also help in the event your partner becomes gravely ill or dies. Without a marriage license, your rights to make decisions or take ownership of certain property will be in doubt. A cohabitation agreement can help to make the wishes of both parties clear.

We have already seen a surge in the popularity of these kinds of agreements, and we expect to observe a continuation of that trend.

For one thing, living together has become far more acceptable in society. No longer are these couples seen to be “living in sin.” For many younger couples, it’s seen as a logical first step toward a possible marriage. However, about 37 percent of cohabiters have been married previously, and many have no intention of making it official.

Those with questions about these agreements should contact an experienced Highland family law attorney.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: Remarriage rate declining as more opt for cohabitation, Sept. 12, 2013, By Sharon Jayson, USA Today More Blog Entries: More Indiana Divorces Could be Spurred by Government Healthcare Reform, Oct. 15, 2013, Indiana Divorce Lawyer Blog

Highland divorce lawyers know the tides shifted dramatically. In fact, there has been legislation mulled in at least a dozen states that would effectively eliminate alimony, or at least lifetime alimony. One of those, Massachusetts, has passed such a measure and another, New Jersey, is likely to do so before the end of this session.

No such measure is currently being weighed in Indiana, but such debate could be on the horizon in the near future. more Alimony, also sometimes called spousal support or spousal maintenance, is a payment made in either monthly or quarterly installments (or in rare occasions, a lump sum) that is supposed to serve as a financial buoy to the spouse who is disadvantaged.

In years past, when it was more common for women to be homemakers and men to be breadwinners, such financial support made a great deal of sense. It wasn’t fair for the wife and mother to be left destitute simply because the union didn’t work out.

However, a recent Pew poll revealed that some 40 percent of mothers are now the primary wage earners in the family. Still, only 3 percent of alimony recipients are men.

Of course, alimony as a whole is much rarer than it used to be. Permanent alimony payments are unheard of, and even long-term arrangements are becoming more scarce.

If alimony in Indiana is awarded, it is typically on a temporary basis and even then, only under very specific circumstances.

The first possibility is that one spouse is either physically or mentally incapacitated in such a way that it impacts that person’s ability to be self-supporting. In these cases, support could last for as long as the incapacity exists, though courts always retain the right to go back and later modify the order.

The second possibility is that the court determines that one spouse lacked enough property, even after the marital property is divided, to meet his or her needs AND that he or she has custody of a child who is mentally or physically incapacitated. Further, that incapacity has rendered the parent unable to work. All elements must be true in order for support to be awarded under this clause. The judge can order support payments to span whatever time frame he or she may deem appropriate.

In the third possibility, the court finds that it is appropriate to award support considering both parties’ education and earning potential. The court is also going to look at whether one spouse interrupted his or her career or education in order to care for family needs. In these cases, support is considered “rehabilitative,” and is only intended to last long enough for the aggrieved party to become retrained or gain meaningful employment.

The state doesn’t have any hard-and-fast guidelines, so the judge truly has a great deal of discretion in these cases.

Still, the courts are certainly not handing out support payments with reckless disregard for each individual’s situation. Eliminating certain alimony options entirely might not affect a large percentage of the divorcing populace, but taking it off the table could be highly detrimental to a few.

Making a strong case in your favor is going to require an experienced family law attorney with a proven track record of success.

Indiana Family Law Attorney Burton A. Padove handles divorce, alimony and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: Is This the End of Alimony? June 27, 2013, By Cheryl Lock, LearnVest More Blog Entries: Highland Divorce Lawyers Caution Against “Destination Divorces,” Aug. 1, 2013, Gary Divorce Lawyer Blog

In the U.S. v. Windsor decision, the question was whether the Defense of Marriage Act, also frequently referred to as DOMA, which had defined marriage for all purposes under federal law as one man and one woman, was unlawful due to deprivation of equal protection for same-sex couples who were legally married in their state. The court ruled ultimately that, yes, DOMA violated the Fifth Amendment rights of these individuals.

However, that ruling didn’t mean that gay marriage automatically became legal in all 50 states. What it meant was that couples who are legally married can’t be denied federal benefits.

Where it becomes slightly more complicated in states like Indiana is when homosexual couples are legally married in other states and then move to Indiana. They may now be able to collect federal benefits, but the state still will not recognize their union.

The same is true with regard to family issues. As of right now, because the unions of same-sex couples aren’t recognized by the state, neither will the state grant divorce proceedings between these pairs.

There are some states that bar same-sex marriage recognition – except for the limited purposes of ending the union, although as of today, Indiana isn’t one of those states. As such, many divorcing homosexual couples have been forced to move back to the state where they married (or another that recognizes their union) in order to obtain the residency requirements necessary to obtain a legal divorce. It’s unclear whether they will need to continue to do this in light of the DOMA ruling.

It’s worth noting that child adoption by a single person who is LGBT is allowable in the state and joint gay adoption isn’t expressly prohibited. In some areas, we have seen that second-parent adoption has been allowed.

When issues of contention arise in these arenas, they may still be fought in state court.

National public opinion on the issue has shifted dramatically, even in the last decade, with 58 percent of the country now in favor of legalizing same-sex marriage. In December, a poll conducted in Indiana by the Bowen Center for Public Affairs found that while the majority of voters did not want the state’s same-sex marriage ban written into the state constitution, they were about evenly split on the issue of whether gay marriage should be legal in the state.

Marriage equality advocates have vowed a vigorous fight against having the current law engraved into the state constitution, and have further promised ongoing efforts to have the current law struck down. more Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary, Hammond and Calumet City.

Additional Resources: Gay marriage rulings clear path for Indiana battle, June 26, 2013, Associated Press More Blog Entries: Keeping Your Indiana Divorce Costs Down, June 20, 2013, Highland, Indiana Divorce Lawyer Blog