Schrag v. Spear - Relocation of Custodial Parent Requires Strict Procedural Following

March 5, 2015

Anytime a custodial parent wishes to relocate with a child - whether it's across the street or across the country - the parent must first notify the court and obtained permission.
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Further, non-custodial parents have several options with how to proceed, particularly if they fear the move could have a detrimental impact on the parent-child bond.

Indiana Code 31-17-2.2-1 requires custodial parents to file a Notice of Intent to Relocate with the court at least three months prior to moving. Once the notice is filed, the non-custodial parent has 60 days in which to file an Objection to Relocation with the court.

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In re Marriage of Gust - Spousal Maintenance Amount, Duration, Weighed

February 15, 2015

Indiana law generally presumes following a divorce each spouse will work and support him or herself after the marriage has ended. However, there are some exceptions, and in these cases, spousal maintenance is granted.
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Courts are more likely to grant temporary spousal maintenance during the interim period between when divorce is filed and when it becomes final. This is the provisional period, and temporary maintenance is rather common.

Less common is an award of spousal maintenance after a divorce. In order for the court to award spousal maintenance, the law requires certain criteria, as set forth in Indiana Code 31-15-7-2, to be met. Primarily, the court considers whether the receiving spouse is physically or mentally incapacitated to the extent his or her ability to self-support is materially affected. The court may also consider the spouse's lack of sufficient property to provide for his or her needs, the custody of an incapacitated child requiring him or her to forgo employment as well as the educational level, earning potential and the amount of time necessary to seek and acquire sufficient training/education to become self-sufficient.

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Vanderkam v. Vanderkam - Consideration of Retirement Benefits Key in Divorce

February 4, 2015

In many divorce cases, one of the primary considerations that must be made concerns retirement benefits - whether that be through a typical 401k or a pension or through federal Social Security benefits.
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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.

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George v. George - Divorcing an Abusive Spouse

January 20, 2015

While divorce certainly has its challenges, it's usually preferable to remaining in a union that isn't working.
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However, when the element of abuse is involved, there are unique and important considerations that must be made before proceeding. It has been proven violent spouses are most prone to extreme acts when the victim is attempting to leave the relationship.

That's why in these circumstances, it's imperative to consult with a legal team that understands the situation and can help guide you safely through the process by putting you in touch with social service resources such as shelters, law enforcement and crisis counselors. Safety of our clients is a No. 1 priority. We work to help ensure that by requesting emergency orders of protection, emergency child custody hearings and other measures intended to keep you safe while you leave a toxic relationship.

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Pre- and Post-Nuptial Agreements Must Be "Just" and "Equitable" to be Valid

January 10, 2015

Both pre- and post-nuptial agreements have increasingly come into favor among many couples, particularly those who are waiting longer to marry (or are marrying later in life) or may have issues to resolve during the course of the union.
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These are formal agreements that will be recognized by Indiana civil courts in the event of marriage dissolution - barring certain findings of impropriety at the time the agreements were signed.

For example, Indiana Code 31-11-3 addresses the enforceability of pre-nuptial agreements, stating the agreement isn't enforceable if one party did not execute the agreement voluntarily, it was unconscionable when executed, provisions modify or eliminate spousal maintenance or cause one party to suffer extreme hardship under circumstances not reasonably foreseeable at the time of the agreement.

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Indiana Appeals Court Affirms Loss of Parental Rights, Cite Drug Use

December 20, 2014

Indiana courts are rarely eager to terminate the rights of faltering biological parents, who often receive numerous opportunities to reform and provide a stable, loving environment.
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Termination of parental rights is seen as a last resort option, allowing the child to be either formally adopted by a more stable third party or to be deemed a child in need of service, in order to secure access to public support and services.

Still, parents who face this kind of action must recognize that such decisions, when they are handed down, are final and may forever close the door on an opportunity to establish a relationship with that child. Once appeals are exhausted, there may be no further right of action.

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Higgins v. Cumber - Step-parent Rights Weighed by State High Court

December 10, 2014

Approximately one in three children will live at least some portion of their childhood with a stepparent, according to recent statistics. These are individuals who will play an important and lasting role in children's lives.
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However, from a legal standpoint, stepparents - even residential stepparents - generally have fewer rights than even legal guardians or foster parents. Still, in situations where a stepparent voluntarily receives a stepchild into his or her family and treated the child as a family member, he or she could be considered in loco parentis, meaning he or she assumes an obligation to maintain and support the child.

But absent a formal adoption, a stepparent who later separates from the child's biological parent and then seeks to establish visitation will face an uphill battle. It is absolutely possible, particularly if the child lived with the stepparent and the relationship was long-term. However, it's not an automatic right. If a biological parent opposes, the matter will have to be addressed in family court.

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Carr-MacArthur v. Carr - On Mental Health and Child Custody

November 18, 2014

Mental illness does not carry the same stigma it did even just a few decades ago. This has brought many conditions to light that may have otherwise been hidden, and allowed for better treatment plans with greater family support.
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However, in the course of dissolving a marriage or within a child custody dispute, the mental health of one parent or both is sometimes called into question. Often, one side will press for the introduction of evidence such as medical records or the testimony of one's psychotherapist in order to undercut that person's fitness as a parent or to gain some other advantage in the case.

It's important to understand confidential information and communication is protected by mental health professionals, but only to an extent. Particularly in child custody proceedings, the court will find it relative to determine whether one parent is "unstable" or "depressed." If the information may directly relate to the well-being of a child or the parent's ability to adequately care for the child, the court is likely to admit the information.

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Indiana Appeals Court Affirms Adoption Ruling

November 3, 2014

While Indiana family law courts strive to make the adoption process and transition as seamless as possible for children and their families, inevitably, there are going to be bumps in the road.
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This is especially true when the adoption is in any way disputed or when the adoptive parent or parents have any kind of background (criminal, immoral, etc.) that could give the court pause.

A recent example of possible complications that can arise, even in intrafamily adoptions, was that of In re the adoption of I.B. and W.B. and B.B. v. B.C. & J.L. et al., out of Jasper County. The Indiana Court of Appeals ultimately affirmed the adoption placement of three siblings with their maternal grandmother and her fiance of 13 years. However, it was not without significant legal wrangling.

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Bogner v. Bogner - Indiana Appeals Court Weighs Child Support Change

October 20, 2014

Changes in Indiana child support payments are only going to be made in circumstances where the court has held there has been a substantial change in condition and it's in the best interest of the child or children involved.
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Deviation from the Indiana Child Support Guidelines also generally isn't done without good cause. Of course, there are always exceptions. Whether you're the one requesting the change or trying to fight it off, an experienced family law attorney can help.

The recent case of Bogner v. Bogner before the Court of Appeals of Indiana reveals how one such battle played out.

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Hardman v. Hardman - Allocation of Child Tuition Expenses in Divorce Settlement

October 10, 2014

Most parents want to ensure their children have the best possible chance of success as an independent adult, and that means having a solid education. However, there are many varying schools of thought about what a good education looks like - and how much it costs. so.jpg

In matters of divorce, disputes about education (specifically the funding) can become especially heated. The cost of private school can be as much annually as college tuition. And while most parents aren't legally obligated to pay for either private school or college tuition for their children, that could change in the midst of a divorce.

Increasingly, family courts are allowing for the enforcement of "reasonable" educational costs when one parent argues for it. The decision is typically based on both parents' income, the kind of education the child was receiving prior to the split and whether there is already a fund established.

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In re J.T. - Grandparent Visitation in Indiana a Long Shot

September 18, 2014

It's been 14 years since the U.S. Supreme Court's watershed ruling in a grandparent visitation dispute. In the years since, Indiana courts have still struggled to strike a balance between parental rights and the strong desire of grandparents to be a part of the children's lives.
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Indiana Code 31-17-5 details the circumstances under which a grandparent may seek visitation of a child. Primarily, these circumstances are when the child's parent has died, the child's parents are divorced or the child was born out of wedlock. The court does not permit paternal grandparent visitation where the child was born out of wedlock and paternity has not been established.

Our Gary child custody lawyers know that above all, the court is going to weigh the best interests of the child. Still, the U.S. Supreme Court's 2000 decision in Troxel v. Granville is considered guiding. Although at the time, many state courts were broadening the rights of grandparents to see their grandchildren, the Troxel case shifted the direction. There, the supreme court held that a Washington state law allowing "any person" to petition a family court for visitation rights was unconstitutional, as it violated a parent's 14th Amendment rights, interfering with a fit parent's right to raise their children as they deem best. The state, the court held, has no grounds to question the parent's decisions in raising those children.

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Balogh v. Balogh - Post-Nuptial Agreements Can Protect Property

September 3, 2014

By now, most people are familiar with the concept of pre-nuptial agreements. These are contracts signed before a couple recites their vows, and are typically intended to protect assets acquired by the individuals prior to the union.
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Less recognized, but no less formal before the courts, are post-nuptial agreements. These contracts are very similar, except that they occur after the marriage. Our Hammond family law attorneys recognize that while the courts will give great weight to contracts signed by both parties at any point, having the record drafted or reviewed by an experienced lawyer can help eliminate the possibility that a judge might later find it unenforceable due to being unconscionable and/or involuntary.

It's worth noting there are some elements - such as child support or child custody - that generally can't be decided in such a contract. The courts are more concerned with the child's well-being than the desires of the adults in the situation, and that will take precedent.

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Shae v. Shae - Modification of Child Support Orders

August 18, 2014

While child support guidelines in Indiana were modified nearly five years ago in order to promote fairness in family law proceedings, many parents still find themselves battling a system that is either forcing them to pay more than they can reasonably afford or isn't making the non-custodial parent pay what is necessary to provide for the child.
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Our Gary child support lawyers know that family court judges have a fine line to walk in terms of balancing these interests. But making decisions in the best interest of the child is always the primary goal. So when mistakes are made, challenges must be mounted.

The case of Shae v. Shae, weighed recently by the North Dakota Supreme Court, provides an example of how the courts occasionally get it wrong the first time around, and why it can be beneficial to challenge such orders.

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In re: J.A.L. - Securing Elderly Guardianship in Indiana

August 8, 2014

Typically when our Highland family law attorneys talk about guardianship of an individual, we are speaking of children. However, as the population ages, with increasing frequency we are seeing individuals seeking guardianship of elderly relatives and loved ones.
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Adult guardianship in Indiana, similar to child guardianship, is a legal process whereby the court determines that a person lacks the capacity or ability to communicate decisions for themselves. While this can involve older adults with incapacity rooted in certain forms of dementia, such as Alzheimer's disease, it could also involve a person over 18 with developmental disabilities or an adult who has suffered a traumatic brain injury.

The process involves first speaking with a qualified attorney who can relay your options. From there, your lawyer can help you obtain a physician's statement, which describes the person's diagnoses and functional limitations. Then, your attorney will file a petition on your behalf in court. A notice will be sent to that individual and any others who may require notification under law. The court will likely hire a guardian ad litem, who will act as an advocate for the incapacitated person during the proceedings. The court will then hold a hearing and make a determination based on the merits of the claim.

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