Monday, October 29, 2012

What to Expect: Modification of Custody

In family law cases, there are times when one parent seeks a modification of the custodial arrangement. As with any family law issue, if the parties agree to the modification, they can enter into a formal agreement which outlines the terms of the modification and file the agreement with the Court for approval. Absent an agreement however, custody modifications can be difficult cases for the party requesting the modification.  This is due to the fact that under Indiana law, the party requesting the modification has the burden to prove that (1) a substantial change in circumstances has occurred so as to warrant the modification of custody and that (2) such modification is in the best interest of the child(ren).

Keep in mind there are two forms of custody: physical and legal. A party may request to modify either physical custody, legal custody, or both. When a party requests a modification of custody, the Court must find that both elements of the applicable statute have been satisfied.  This can be a difficult burden for the requesting party to meet.  For instance, a change in the non-custodial parent’s circumstances is not a substantial and continuing change so as to warrant a modification of custody.  So a change in the non-custodial parent’s circumstances – better job, better home, more stable overall – will not in and of itself be sufficient to modify custody.  

The most common arguments that successful modifications rely upon involve the safety and/or well-being of the child in question.  The most extreme cases involve abuse of a child.  Also, a showing that the health of the child has been compromised can support a request to modify custody.  Less dramatic factors, such as a significant decline in academic performance, can also be persuasive.

With respect to legal custody, a modification from joint legal custody to sole legal custody may be appropriate if it is shown there has been a breakdown in communications between the parents such that they can no longer communicate with one another to make the child-related decisions.  The breakdown in communication can involve verbally or electronically abusive comments, or could simply be a failure of one parent to participate in decision-making that negatively impacts the child (e.g. missed sign-up deadlines).

Custody modifications are not readily granted as courts prefer to see custodial arrangements with children to remain consistent. If you are considering requesting a custody modification, you would be well advised to seek the assistance of counsel specializing in family law.

At Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to assist with your family law needs.  If you have questions or concerns regarding divorce, mediation, collaborative law or any other family law concerns, please contact our firm at 317.DIVORCE or visit our website at

Wednesday, October 17, 2012

What to Expect: Going to Court

In family law cases, there are times when a settlement between the parties is not possible. Therefore, the parties must proceed to Court.  In such circumstances, often the “fear of the unknown” is a major concern for clients.  Most people do not have experience with court proceedings.  In the event your case proceeds to a hearing, knowing what to expect (to the extent that is possible) in Court can help to ease your concerns.

Request the Hearing.  With limited exceptions, a hearing will be scheduled upon the request of either party.  The request for a hearing typically includes an estimate of the amount of time it is anticipated will be needed to present the evidence.  If it appears settlement will be unlikely, it is advisable to request a hearing as soon as possible to ensure your hearing is scheduled promptly.

Be Prepared.  Preparation is the key to going to trial. While in Court, there is a limited time within which to present your evidence to the judge.  Therefore, being prepared will ensure that you are able to present as much testimony and evidence as possible.  It is important to meet with your attorney prior to any hearing to prepare your testimony and discuss what to expect at the hearing. 

What to Wear?  It is not necessary to dress in a suit when appearing in Court. Clean, conservative business-casual dress is recommended. 

Can My Child Testify?  As a general matter, Court’s prefer to determine the issues of a case without the child’s testimony.  In the event a party would like the child to be interviewed by the judge only – rather than appear in front of all parties in the Courtroom – a party may request that the judge speak to the child in his office. There are many variables to consider in making such a request and you should consult with your attorney before making a decision.

The Day of the Hearing.  When you arrive in the courtroom, you should ensure you are on time.  It is likely that the parties to the case, their attorneys, the judge, and court staff will be the only individuals present in the Courtroom.  When the judge enters, he/she will begin the proceeding and the Petitioner (the party requesting the hearing) will begin to present his/her case.  At the close of the Petitioner’s case, the opposing party will present his/her evidence.  When all evidence has been presented, the judge will consider the evidence and issue a ruling.  This may be done in court immediately after the hearing, or at a later date if the judge takes the matter under advisement. 

At Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to assist with your family law needs.  If you have questions or concerns regarding divorce, mediation, collaborative law or any other family law concerns, please contact our firm at 317.DIVORCE or visit our website at

Tuesday, October 16, 2012

Options to Resolve Your Case Prior to Trial

In family law, a majority of cases settle outside of the courtroom.  There are many reasons to attempt to reach a settlement, including uncertainty as to the judge’s decision, anxiety about testifying in court, the potential to increase animosity between the parties, and the attorney’s fees associated with attending a hearing.  It is common for a party to never step foot inside of a courtroom because the parties reach an Agreement on all terms without the requiring the court’s intervention.  There are two primary methods to reach an out-of-court agreement:  informal negotiations and mediation.  Informal negotiations involve communication between the parties and/or their counsel concerning the terms of a final agreement.  This process involves communication as to the terms of a final agreement without the assistance of a third party (a mediator or judge).  In some instances, the parties may be able to reach an agreement on the general terms of an agreement and engage counsel to assist with the finalization of those terms to ensure approval by the court.  In other cases, counsel for the parties will exchange proposals and draft agreements in an attempt to reach a resolution.

In the event parties are unable to reach an Agreement through informal negotiations, mediation is a common next step.  Mediation may be agreed upon by the parties or ordered by the court.  At mediation, the parties are typically placed in separate rooms with their counsel and the Mediator serves as the neutral third party who exchanges proposals between the parties in intensive and focused settlement negotiations.  The Mediator’s role is to assist the parties in their attempt to reach common ground by addressing certain considerations as to an anticipated reasonable outcome in court as well as other realistic and pragmatic concerns with any proposed settlement.  There are instances where parties do not reach an agreement during mediation.  In that case, a final hearing is the next step as the mediator does not have the authority to order the parties to comply with certain terms or reach a final agreement.

A recent trend in family law is for parties to engage in a collaborative divorce process.  In such instances, parties are focused on reaching a collaborative agreement and hire respective counsel trained to do so.  The process is similar in many respects to informal negotiations and mediation, with the ultimate goal of reaching an agreeable settlement.  One different aspect of the collaborative law process is that in the event parties are unable to reach a settlement, they must hire new counsel and begin the process anew.

At Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to assist with your family law needs.  If you have questions or concerns regarding divorce, mediation, collaborative law or any other family law concerns, please contact our firm at 317.DIVORCE or visit our website at

Monday, October 15, 2012

What to Expect: Maintenance / Alimony

In Indiana, what was historically referred to as alimony is now termed “spousal maintenance.” Parties going through a divorce should be advised that there are two (2) types of spousal maintenance: (1) temporary spousal maintenance, which may be ordered to be paid by one party during the pendency of the divorce; and (2) spousal maintenance after entry of the final Decree of Dissolution by the court.

Temporary maintenance can be ordered by a court at the preliminary hearing or agreed upon by the parties.  The purpose of this order is to allow the parties to maintain the “status quo” in order to meet all financial obligations during the pendency of the divorce.  When determining whether an award of temporary maintenance is appropriate, courts may consider which party will be living in the marital home with the children during the pendency of the divorce and any discrepancy in the parties’ earnings or income in relation to the existing marital obligations.  When appropriate, the court may order one party to pay the other’s obligations, such as the monthly mortgage, utilities on the marital residence, car payment, or minimum monthly payments on credit cards. 

Post-dissolution spousal maintenance may be ordered to be paid after the court’s entry of the Decree of Dissolution in three (3) circumstances (absent an agreement to the contrary.); (1) if a party is incapacitated due to a physical or mental disability such that they cannot work and support themselves; (2) if a child of the marriage is disabled and the party taking on primary care and custody of that child will not be able to work to support himself/ herself, and the child due to the caretaking responsibilities which are required; and (3) if “rehabilitative maintenance” is deemed appropriate when one spouse is required to further his/her education or training prior to a re-entry into the workforce due to the fact that their education, training or employment was interrupted for homemaking or child rearing reasons.  Under Indiana law, rehabilitative maintenance may only be ordered to be paid for up to a period three (3) years. 

If you would like to request an award of spousal maintenance, it would be beneficial to speak with attorney who has had experience in such matters given the fact that a spousal maintenance award is extremely fact-sensitive.  A maintenance request should be made only when appropriate so as to avoid unnecessary delay in resolving your case, as it could lead to potential conflicts which otherwise can distract the parties from reaching a reasonable settlement.

At Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to assist with your family law needs. If you have questions or concerns regarding divorce, custody, support, maintenance or any other family law concerns, please contact our firm at 317.DIVORCE or visit our website at

Thursday, October 4, 2012

What to Expect: Property Division

            In Indiana, courts divide a divorcing parties’ property in a manner which is deemed to be fair and reasonable.  Indiana law follows the “one-pot” theory for the division of marital property, which presumes all marital property is put into one pot and that a fifty-fifty (50/50) division of all marital assets and liabilities is presumed to be fair and reasonable.  However, there are various factors Courts consider in determining whether or not a deviation from the equal division is warranted, including: the contribution of each spouse to the acquisition of property; the economic circumstances of each spouse at the time of the disposition of the property; the conduct of the parties during the marriage as related to disposition or dissipation of their property; and the earning ability of the parties. Thus, while an equal division is presumed, one party can request more than fifty percent of the marital estate.

            What is Marital Property?  It is important for parties to understand what is considered marital property as many people believe certain assets or accounts remain separate from the estate.  This is often incorrect. Absent a prenuptial agreement, excluding certain property from becoming part of the marital estate, Indiana law presumes that all assets and debt brought into or acquired during the marriage is marital property and is subject to division by the Court.  That being said, one may argue that certain property or liabilities should be allotted to one party in the division of the estate.  An example of a liability remaining with one party would be a student loan.  Such a determination is very contextual and seeking legal advice is recommended to determine if such a request is supported by the facts of a given case.  Each case is unique and the decision to exclude property is left to the discretion of the Court.  Naturally, there are certain issues which arise more often than others and therefore, more Court decisions regarding the treatment of such property in dividing the estate. This gives parties guidance on what may be expected after a hearing on the given issue.  Further, it is important to note that any property which is acquired after the date of the filing of the Petition for Dissolution of Marriage may be considered property which is separate from the marital estate.

The division of each marital estate is requires the work of the parties and counsel to reach an agreement which works best for the family.  Parties are well advised to seek the advice from financial planners to determine a division which will have the fewest tax consequences or negative implications on the estate.  

At Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to assist with your family law needs. If you have questions or concerns regarding divorce, custody, support, or any other family law concerns contact our firm at 317.DIVORCE or visit our website at

Wednesday, October 3, 2012

What to Expect in Divorce - Child Support

In Indiana, in any Dissolution of Marriage, Post-Dissolution, or Paternity action, the court will enter a child support obligation to be paid by one of the parties, (typically, the noncustodial parent). The Indiana Child Support Guidelines are presumed to be applicable in every such proceeding and govern the payment and determination of child support. The Guidelines are based on the “Income Shares” theory; specifically, that both parents are responsible for the support of a child based upon their respective income shares.  The underlying philosophy is that a child should be provided the same lifestyle which would have been afforded to him/her had the family remained intact or had the parties married. The Guidelines are presumed to apply in each case unless a reason can be shown as to why a deviation from the calculated obligation is warranted. In determining the support obligation, child support calculators are used to create a Child Support Worksheet, which must be filed with the Court in each proceeding. In addition to the parties’ gross incomes, other factors included in determining the support obligation are: actual work-related childcare expenses, healthcare insurance premiums for the children, parenting time overnights exercised, support or maintenance received or paid, and subsequent children in either parties’ home. When a Court deems appropriate, numerous benefits received by one party, including parties’ bonus incomes, commissions, or even regular gifts from family or friends, may be included as income for support purposes.

There are a number of reasons to deviate from the presumed obligation by the Guidelines.  These include, but are not limited to, voluntary unemployment or under-employment by one of the parties. If a Court finds either of these to be a factor, it may impute potential income to that party for purposes of determining support.

There are cases wherein clients propose to their attorney an agreement with the opposing party to forgo the receipt of support.  This is not appropriate in most cases. Such an arrangement may be appropriate if the parties equally share physical custody of the child(ren) and agree to share expenses due to the fact that their incomes are relatively similar, however, parties must understand that it is not their right to waive support for the child(ren), rather it is the child’s right to receive the same.  Issues with respect to child support are very fact sensitive and different issues will arise in each case. A thorough knowledge and understanding of the Guidelines is necessary to determine the appropriate obligation in any given case when issues arise.

At Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to assist with your family law needs. If you have questions or concerns regarding divorce, custody, support, or any other family law concerns contact our firm at 317.DIVORCE or  visit our website at

Stay tuned for the next installment of “Divorce-What to Expect: Property Division” by HOLLINGSWORTH & ZIVITZ, P.C. 

Tuesday, October 2, 2012

Claiming Children as Dependents....

In many family law cases, it is common that parties agree or judges will order parents to alternate claiming the children as dependants on their State and Federal Income tax returns (or that each claim one child in each year). However, as discussed in the article below, the Decree of Dissolution or Court’s Order may not be adequate to effectuate the terms in the Decree. 

The problem stems from the fact that, in order for the noncustodial parent to claim the child(ren) on her/his tax return, the custodial parent must sign the IRS Form 8332, thereby relinquishing her/his right to claim the children as dependants for that tax year.

The advice in this article is practical and, unfortunately, correct. If one party refuses to sign the IRS Form 8332 required by the noncustodial parent to claim the child(ren) on his/her tax return, the issue can become a headache to remedy due to the time and attorneys fees associated with correcting the issue. Thus, if you believe your ex-spouse may be inclined to act in contravention of the terms of your Decree, you may consider focusing on other terms/issues and concede on the issue of claiming the child(ren) on your individual tax returns.  

While measures may be taken to ensure one party's compliance, such as including language that the party who does not comply with the terms of the Decree be responsible for any attorneys fees incurred by the complying party to effectuate its provisions, if the violating party does not have the money to pay the awarded attorneys fees, this may be a futile request (and the basis of their erroneously claiming the exemption to begin with).