Wednesday, January 16, 2013

Ex-Husband Order to Pay Child Support for Children Conceived from Sperm Donor

The following articles discusses a recent Court ruling wherein the Indiana Court of Appeals upheld a trial court's order that the Ex-Husband of a woman pay child support for children conceived by a sperm donor during their marriage.  According to the article, there is a dsipute between the parties as to whether or not Husband consented at the time of conception. The woman performed the procedure without the assistance of a doctor.

For the full-text article, please visit:

Thursday, January 10, 2013

Kim Kardashian - Baby on the Way But Still Married to Kris....

Below is the link to an article outlining recent developments in Kim Kardashian’s and Chris Humphries’  divorce proceeding.  Currently, based on the parties’ respective legal positions, there is speculation that the hearing on the final dissolution may not occur until June 2013 – which is also very near Kim’s due date.  As many know, Kim is expecting a child with Kanye West.  Kim is allegedly “frustrated and angry,” at the prospect of giving birth to a child while married to another man. 

Its no wonder. Aside, from personal concerns, legally (and while we at H&Z practice divorce ONLY under Indiana law and therefore cannot advise as to what may occur in the state they have filed for divorce) – if these parties were divorcing in Indiana and there was no final dissolution by the time Kim were to give birth, under Indiana law the child would be presumed to be a child of the marriage.  Thus, the basis to push for the finalization of the divorce prior to the child's birth. This is due to the law defining who is presumed to be a child’s biological father. Under Indiana law, Kris would be presumed to be the child’s father if:

 (1) the child was born during the marriage; or
 (2)  the child was born not later than 300 days after the marriage is terminated by dissolution.

See Indiana Code Section 31-14-7-1. 

Of course this is a rebuttable presumption. However, under Indiana law, should the issue be left unaddressed, there could be implications affecting each party’s rights. Namely, the presumption may lead to a right of either party to orders regarding child support and parenting time.  While it may be unlikely for such an outcome to occur, this fact scenario is a prime example of an instance where the law leads to bizarre results.

For a full-text version of the article, please visit the following link:

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

Thursday, January 3, 2013

Noncompliance with the Decree or Court Order

In most, if not all family law cases, the finalization of the divorce/case does not mean that all matters related to the case have concluded. Rather, the entry of a Court Order finalizing the matter is only a Court decision (or approval of an agreement) as to how all matters related to the case will be handled.  Each Court Order contains provisions which must then be enforced in order to effectuate the decision.  In many cases all provisions are carried out without issue.  However, in the event either party fails to comply with the terms of the Court Order, mechanisms exist to gain an individual’s compliance.

The Court can intervene after a party alleges noncompliance by the opposing party. Such an action can be initiated by filing a Motion for Rule to Show Cause (commonly referred to as a “contempt” motion) notifying the Court of the issue.  If the Court finds that the actions of one of the parties rises to the level of a contempt citation, a variety of penalties exist to punish the past actions and encourage future compliance with the Court Order.  Parties would be well-advised to seek the advice of counsel in determining how to best proceed with the enforcement of a Court Order as the remedies vary based upon the issue presented as well as the nature of the non-compliance itself.

Enforcement of Child Support. Pursuant to Indiana Law, there are potential civil and criminal penalties for the nonpayment of child support; failure to make support payments can have serious ramifications. If the prosecutor chooses to go forward with criminal proceedings, the charges can rise to a Class C Felony, punishable by 2-8 years in prison conceivably, for the nonpayment of support in excess of a statutorily-defined amount. As the payee of a support order, you may request the Court exercise its power to hold the child support payor in contempt.  This can result in a variety of potential orders, including that the contemptor pay the other parent’s attorney’s fees for any and all costs associated with maintaining or bringing the action; order that the contemptor perform community service; issue a warrant for the individual’s arrest for failure appear to show cause for the nonpayment of support; suspend the individual’s driver’s license; intercept tax refunds to pay against past-due support; and attach interest to a delinquent support balance.   In exceptional cases, the Court can incarcerate a non-payor of support; however, rarely are parties jailed when found to be in civil contempt. Frequently, this is counter-productive as that person stands to lose their employment and become further delinquent on his/her child support payments.

Be aware, however, that the Court must consider whether the acts of the non-payor are willful; if the circumstances under which this person is not paying are beyond their control, the Court may not believe a contempt citation is proper.

Enforcement of Real Estate / Property Issues.  If an unpaid obligation remains from a divorce, in lieu of seeking remedies as a contempt action, another option to explore would be to obtain a money judgment against an opposing party and enforcing it through regular collections proceedings.   However, this change from divorce obligation to money judgment, generally, removes the contempt aspects and simply turns the debt into money with statutory interest and the ability to collect through wage and bank garnishments.  Obviously, when the terms of the decree are not strictly financial, the option to convert to a money judgment is not appropriate.    For example, if the parties agree to refinance a mortgage into one party’s name and that person subsequently does not qualify for the same, the third party (the creditor) cannot be ordered to comply with the Court Order. Therefore, the remedy requested will likely be to modify the terms of the Decree, and not to find the party in contempt.  Additionally, issues exist when a party is unable to sell a home within a set timeframe due to the issues in the housing market, effectively frustrating the intentions of the divorce decree but not through the fault of either party such that a contempt award would be proper.

Self Help.  One common (and tempting) misnomer is to withhold parenting time as a response to a failure of the other parent to pay child support or that one party may withhold child support due to the other parent’s failure to allow for regular parenting time. Such actions risk the wrath of the Court – these are issues for which consultation with counsel is imerpative.  Before undertaking anything that a Court could deem violative, all the risks associated with this must be considered.  are inappropriate and deemed “self help” by the Courts. It is imperative that parties in family law cases understand that only the Court may enter sanctions for a violation of Court Order. Further, one party retaliating against the alleged contemptor will not likely bode well in front of the Judge.

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