Partner, Kena Hollingsworth, featured in Indy Child's article, Successfully Separating

For the full text article, please visit:

http://www.indyschild.com/Articles-In-This-Issue--i-2012-10-01-257240.114134-Successfully-Separating.html

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 www.hzlegal.com.

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 www.hzlegal.com.

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

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). 

For the full-text article please visit the following link:  http://www.forbes.com/sites/peterjreilly/2012/09/25/dependency-exemptions-divorce-court-orders-not-binding-on-tax-court/

 

 

Indiana Parenting Time Guideline Changes

Indiana Parenting Time Guideline Changes

The most recent draft of the Indiana Parenting Time Guidelines 2012 (“IPTG 2012”) was approved last week by the Judicial Conference.  The IPTG 2012 could go into effect as soon as early 2013, if it is approved by the Indiana Supreme Court.

The IPTG 2012 link is as follows: http://www.in.gov/judiciary/files/rules-prop-ptg-2012.pdf

There will be many changes if the IPTG 2012 is approved.  The following is a list of some of the more significant changes:

1.      Parenting Coordinators are incorporated into the Guidelines and may now be approved of over the objection of a party.

2.      The use of calendars and parenting plans will be strongly encouraged.

3.      The Guidelines will become the minimum amount of time and no longer will be the default.

4.      The Guidelines strongly state that children are not to make parenting time decisions.

5.      The Guidelines include a list of unacceptable reasons to deny parenting time.

6.      The Guidelines clarify hierarchy between Summer and Holiday Parenting time.

7.      The Guidelines require all notices of summer parenting time to be given in writing and verbally.

8.      The Guidelines allow for parenting time to be 3 weekends in a row due to Holiday parenting time.

9.      Fall Break, Martin Luther King Day, and President’s Day are added to the Holiday parenting time schedule, and New Year’s Eve/New Year’s Day have been removed from the Holiday parenting time schedule.

10.  Winter Break has been redefined and divided equally.

11.  Parallel Parenting Time is introduced.

12.  High Conflict is defined and lists a parenting coordinator and parallel parenting time to assist.

What to Expect When Reaching A Custody Agreement

There are two aspects to child custody.  The first is legal.  Legal custody refers to the ability to have input on medical, educational, and religious issues pertaining to a child’s upbringing.  Joint legal custody is appropriate in most cases unless there is a significant breakdown in communication between the parties.  Generally, as long as the parents are able to communicate and cooperate with one another on decisions involving the child(ren) without a high level of conflict, joint legal custody will be ordered and the parents are required to consult one another before making any of these “major decisions.”

 

The second aspect of custody is physical custody, which is much more often the subject of dispute.  Simply stated, physical custody refers to where the children spend their time.  As an initial matter, parents may create a unique schedule which satisfies the needs of their children and each other.  Often, however, developing a parenting time schedule can be very challenging. When parties are unable to agree, the Indiana Parenting Time Guidelines provide a parenting time schedule that gradually increases as the children age, provides for a division of holidays, and time with the children should one parent live a significant distance from the children’s primary residence.   It should be noted, though, that the Guidelines represent a minimum amount of reasonable parenting time to be afforded to the non-custodial parent.  Many Indiana Courts commonly award an involved, non-custodial parent parenting time in excess of the schedule provided in the Guidelines.

People often feel the need to “have their day in court,” believing that if the judge hears “their side of the story” the custody order will be in their favor. However, in evaluating whether to ask a judge to make a ruling on custody and parenting time, the parties would be well advised to keep in mind that time in court is limited, and it is difficult to present all of the information believed to be important.  A judge often only has fifteen-thirty (15-30) minutes to hear evidence.   This is not to say that such conflicts which arise should not be litigated.  However, once you proceed to court, the final decision is out of your hands. 

If parties are unable to reach an agreement, Indiana Courts will focus on the “best interest of the children” and in doing so will consider a number of factors in determining an appropriate custodial and parenting time arrangement.  These factors include, but are not limited to, which parent has served as the primary caregiver; the child’s age and sex; the wishes of the child and the parties; the child’s relationship with each parent, siblings, and others; the child’s adjustment to their home, school, and community; and the mental and physical health of all involved.

There are a number of benefits to reaching an out-of-court agreement, including but not limited to, allowance for non-traditional work schedules and flexibility for holidays.  When parties are able to communicate and cooperate on these matters, it is a win-win for all involved.

Hollingsworth & Zivitz, P.C.,  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 www.hzlegal.com.

 

Parenting Time When Distance is a Major Factor

Parenting time can be difficult for divorced parents who do not live in close proximity to each other.  The Indiana Parenting Time Guidelines has taken this fact into consideration and devotes a specific portion of the guidelines to such situations.  When there is a significant geographical distance between the parents, scheduling parenting time is fact sensitive and requires consideration of many factors such as employment schedules, the costs and time of travel, the financial situation of each parent, and the frequency of the parenting time among other considerations.  The attorneys at Hollingsworth & Zivitz, P.C. can work with you to ascertain a schedule that fits with your family.  Don’t let distance deter you from seeing your children and being a significant part of their lives.

If you are considering a divorce or currently face a divorce, it is a good idea to discuss your situation with a Hollingsworth & Zivitz, PC family law attorney. Hollingsworth & Zivitz, PC serves clients in the greater Indianapolis area including Carmel, Fishers, Westfield, Noblesville, and Hamilton County, as well as Zionsville, Avon, Brownsburg, and the counties surrounding Marion County.

To discuss your divorce or family law issue with a Hollingsworth & Zivitz, PC attorney, call 317.DIVORCE or visit our website at www.hzlegal.com.

Detecting Autism

There have been many debates regarding the causes of Autism. It is a question that has haunted many parents who wonder if they have done something wrong to cause their child to have Autism. Although some types of Autism have known causes, most are found to be idiopathic, or without a known cause. There are many theories as what causes autism, including vaccinations, immune deficiency, food allergies, genetics and many other theories. However, none of these theories have been proven.

You would think that with so much information available, someone would have figured out the cause of Autism by now; though, it is still seemingly a medical mystery.  However, researchers from Boston Children's Hospital may have brought us one step closer to discovering the cause of Autism. The researchers have found that recent tests measuring the electrical activity in the brain can distinguish children with Autism from children with typical brains as early as 2 years of age.  Their study was published last week in the online journal, BMC Medicine. Researchers compared raw data from the electroencephalogram tests, or EEGs, of 430 children with Autism and 554 other children from 2 to 12 years of age. Children with Asperger Syndrome did not participate in the testing. The researchers found that children with Autism had consistent EEG patterns showing altered connectivity between different parts of the brain. In general, they showed reduced connectivity compared with the other children's brains. As we get closer to pinpointing the brain’s functions and its effects on human behavior, we grow closer to solving the mystery of the causes of Autism.

There are other ways to identify whether children have any type of autism, but many of these signs go unnoticed. Early detection, however, can have a huge effect how students progress and develop if they get early-intervention services to match their needs and support their development. There are also some known causes, including Depakote (also named Valproate), which is an anti-seizure medication taken during pregnancy; Fragile X syndrome, which is a genetic disorder; Rett Syndrome, which is a genetic disorder affecting only females, Tuberous Sclerosis, which is a rare genetic disorder; and Prader-Willi Syndrome, which is also a rare genetic disorder.

According to The National Association of School Psychologists, students with Autism are most often diagnosed by school staff. It may be possible, however, that the EEG patterns could change the way children are diagnosed. The researchers believe that their findings could lead to a diagnostic test for Autism, particularly at younger ages when behavior-based measures are less reliable. The researchers plan to next study the EEG patterns of children with Asperger Syndrome and children with Autism. This promises to reveal why it affects some children in one way and others in another.

Regardless of the cause, getting a good support system in place for your child is vital. If you are struggling with your child’s school to diagnose and/or provide appropriate support to your child with Autism, we can help. Please visit Indianaspecialeducationlaw.com for more information. 

 

The Fastest Man on No Legs

            It was a monumental Olympics for many reasons, but it was a milestone in the world of individuals with disabilities because of one man, the man known as the “Blade Runner.”  It's a fitting end to his lengthy fight to participate, having first been banned from international competition with able-bodied runners.

            Pistorius is the South African runner born with deformities to both of his legs.  Never knowing what it is like to walk on his own feet, he had the deformities amputated and began his walking career on prosthetics. And so began the inspiring career of the Blade Runner.

            Controversy surrounded his medal legs, and there were claims that his artificial limbs gave him an advantage over runners with natural ankles and feet. This controversy helped keep him out of the 2008 Olympics in Beijing.  However, at the 2012 Summer Olympics on August 4,Pistorius made history by being the first amputee runner to compete at an Olympic Games. In the 400 meters race, he took second place in the first heat of five runners, finishing with a time of 45.44 seconds (his best time of the season so far) advancing to the semi-finals.  He ran in the second semi-final, where he finished eighth with a time of 46.54 seconds.

            The debate around Pistorius flips how most people view disability. Pistorius brought about the fear that his medal legs had given him an unfair advantage. The argument is that the blades give Pistorius an added bounce that allows him to conserve oxygen and calories and that the medal would never tire like normal lower leg portions. However, the argument that Pistorius receives an advantage by his medal legs has been disproven by many scientists who have examined his movements, and point out the many disadvantages he must overcome. In any case, Pistorius is a refreshing antidote to the scandals that normally surround individuals with disabilities.

            Walking into history on medal legs, Pistorius has inspired many.  He is indeed the fastest man on no legs. My hope is that he brings awareness to others who have thought that their disability stops them from succeeding in their dreams. Pistorius has blurred the lines on disabled and able bodied individuals, a fete many have been working to do for years.  I think Pistorius said it best when he said “You're not disabled by the disabilities you have, you are able by the abilities you have."

115 Year Relationship Comes to an End....

Not sure if this should be inspiring or depressing. Yes, 115 years is an amazing amount of time to be in a relationship. However, one might hope after over a century together, something could be worked out.

Alas, there seems to be an irretrievable breakdown.

http://www.csmonitor.com/World/Europe/2012/0613/Tortoises-divorce-after-115-years-of-marriage-video

At Hollingsworth& Zivitz, P.C., our team has NO experience in handling animal divorce. If you have questions or concerns regarding non-animal divorce, custody, support, or any other family law concerns contact our firm at 317.569.2200 or hzlegal.com.

Tom Cruise & Katie Holmes - two religions - one child?

Many of you may be familiar with the recent divorce of Katie Holmes and Tom Cruise.  This is a very interesting case for a number of reasons – the speed with which the case was resolved as well as the recent talk that Katie has converted back to Catholicism (from her former religion of Scientology) and enrolled as a parishioner of a Catholic church in Manhattan. 

Why is this issue so talked about since the couple has separated? It stems from the fact that Katie requested in the divorce settlement that she receive sole legal custody of her daughter, Suri. 

There are two forms of custody, legal and physical custody. Joint legal custody refers to the responsibility and authority of parents to consult the other with respect to making major decisions concerning the children’s upbringing, including, but not necessarily limited to, their education, healthcare, and religious training.  When a parent is awarded sole legal custody they may make such decisions without consulting the other parent.  Therefore, an award of sole legal custody to Katie means that she has the authority to determine the religion Suri practices.  Further, there are reports that the terms of the Settlement Agreement specifically prohibit Suri’s involvement with the practice of Scientology.

As you may know, family law issues vary from state to state. In Indiana, a custodial parent granted sole legal custody has the authority to determine the child’s upbringing. In order to limit such authority, the noncustodial parent must show that without any limitations placed on the custodian’s authority over the child, the child would be harmed in some manner. Specifically, it must be shown that the custodian’s authority would endanger the child’s physical health or that the child’s emotional development would be significantly impaired.  Therefore, were the parties to this case to appear in front of an Indiana Court on the issue of religious upbringing after the entry of their Decree of Dissolution, it would be Cruise’s burden to show that Suri’s physical health was endangered or her emotional development was impaired by the practice of Catholicism (should Katie choose to have the child practice such) and, thus, should not be allowed. 

For a discussion on the TomKat proceeding and other issues which arise when the religious upbringing of a child is contested in a family law case, visit the following link:

http://www.slate.com/articles/life/explainer/2012/07/suri_cruise_custody_decision_will_she_be_raised_a_scientologist_or_catholic_or_both_.html

Obviously, the choice of what religion an individual practices is a very personal choice.  If you are going through a divorce and believe you may experience similar issues with respect to the religious upbringing of your child in the future, you would be well advised to obtain counsel.  One amicable resolution to the issue which you may consider is to allow the child to practice the faith of each parent until the child is old enough to decide the matter for himself/herself.

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 317.569.2200 or hzlegal.com

Is the Magic Gone?

Making the decision to file for divorce is for many people a heart-wrenching decision that comes at the end of a long, thought out process involving the consideration of the impact on children, finances, and stability, amongst many other factors.

Believe it or not, most divorce attorneys (or at least us at HZ) do not actively encourage divorce.  We understand it is a part of our society, and yes, we earn a living of the process.  However, seeing divorce up close shows that it is often a very stressful process that takes a toll on all involved.  Thus, it is not our role and certainly not our goal to persuade someone to get divorced.   

So what are some of the factors to consider when contemplating a divorce?  For the most part, such advice falls outside of the purview of our expertise.  Moreover, such a significant decision can and should only be made by the person asking the question.  As a starter list, though, the linked article has some sound advice on factors you may want to consider when pondering the potential end of a marriage.

http://www.huffingtonpost.com/2012/06/13/marriage-over-5-questions_n_1587305.html

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 317.569.2200 or hzlegal.com.