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:

http://www.tmz.com/category/kim-kardashian-divorce/

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.

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 www.hzlegal.com.

Happy Holidays from H&Z !!!

 

The Twelve Days of Divorce

For a full-text version of the article, "Twelve Days of Divorce," please visit the following link:

http://www.huffingtonpost.com/lois-tarter/the-twelve-days-of-divorc_b_2323503.html

Lakers' Guard in Bizarre Custody Fight

Steve Nash, a guard for the LA Lakers, is currently in litigation with his former Wife over her proposed relocation with the parties’ children.  The parties’ divorce was reportedly finalized in Arizona in 2005. Since that time, the parties’ three (3) children have resided primarily with their Mother in Arizona despite Nash’s subsequent move to California to play with the Lakers. Now, the children’s Mother has proposed that her and the children relocate to be in the same city as their Father, to which Nash is reportedly objecting.

Typically, in relocation cases, a party will object to a proposed move wherein the children are forced relocate to a city where the objecting party does NOT reside.  The basis for the objection in such a situation is very often the impact the proposed move will have on the parent/child relationship due to the newfound distance and, thus, difficulty to exercise parenting time and remain involved in the children’s lives.  Hence, it is “bizarre” to hear of an objection to a proposed relocation into the city of the objecting parent.  It may be that the basis of Nash’s objection lies in his desire for his children to have consistency in their lives and a wish that they remain in the same school, community, support system, etc.  Though there are no reports found as to why he objects to the same.

 

Under Indiana law, if a parenting time or custody order exists and either party intends to relocate his/her residence, that person must file a Notice of Intent to Relocate with the Court 90 days prior to the intended move. The opposing party will then have 60 days in which to file a formal Objection.  If the opposing party objects, the matter is set for a hearing on the proposed relocation. It is important to note that Indiana law recently changed, and there is no longer a distance requirement, for example, that the move be over 100 miles. Rather, under the current law, parties are required to file the Notice of Intent to Relocate for ANY proposed move – regardless of if the move is across the street or across the country. 

For a full-text copy of the article please visit:

http://www.latimes.com/sports/lakersnow/la-sp-ln-steve-nash-embroiled-custody-battle-20121203,0,2599349.story

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.

Supreme Court to Hear Two Cases Concerning Constitutionality of Gay Marriage

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

http://online.wsj.com/article/SB10001424127887324640104578165363433361742.html

How Much Will My Case Cost?!?!?!

During many initial consultations with clients, one of the most frequently asked questions at the outset of a case is “how much will my case cost?”  Unfortunately it is very difficult to determine an accurate estimation of the total cost to finalize any given case, as each set of facts in a family law case is unique and can change during the pendency of the divorce. This difficulty is due in part because much of what may unfold during the pendency of a family law case, and thus the time necessary to complete the same, is unforeseeable from the outset. For example, while you may choose not to serve formal discovery requests, if the opposing party requests the same of you, your attorney will have to respond. Additionally, there are certain issues and/or procedures which are outside of your attorney’s control that may increase your fees. For instance, some county courts have local rules making mediation mandatory prior to a requested final hearing, thus this is a known cost. However, in other counties without such requirements, individual judges may still order the parties to submit to mediation or a form of alternative dispute resolution prior to attending and/or scheduling a final hearing, thereby increasing the fees to finalize a case.  Attorneys should be upfront with their client about the potential time and cost required to finalize their case.

There are steps clients can take to control the costs of their case to the extent that is possible.  One manner to drastically reduce the attorneys’ fees is for the client to communicate directly with the opposing party.  If parties are able to reach an informal settlement outside of the courtroom, not only will they save attorneys fees associated with trial preparation and attendance, but they will maintain control over the terms of the agreement.  Additionally, if the parties are able to conference with their attorneys for legal advice, but communicate directly with the opposing party to reach the terms of an agreement, in what our attorneys term “kitchen table” negotiations, the attorneys fees will be drastically reduced than if two attorneys must undertake substantial communication to come to a final agreement in any given matter.

Custody Evaluations.  In the event child custody is contested, either party may request that the Court order a custody evaluation be performed.  If such is ordered or agreed to by the parties, then the family members will be interviewed by a psychologist who will determine what is in the best interest of the children with regard to custody and issue a report outlining his/her findings. Custody evaluations, while useful, can cost upwards of $5,000.00 depending upon the evaluator selected. 

Business Valuation.   In the event you and/or your spouse owns a family business or a share in a closely held business, which is not expressly set aside from the marital estate pursuant to a prenuptial agreement, then the business will need to be valued in order to properly divide the marital estate.  If you and your spouse cannot reach an agreement as to the value of the business,  you may agree or request that the court order a formal business valuation.  Business valuations  may cost upwards of $10,000.00, depending on the type of business and the business valuator selected.

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 www.hzlegal.com.

 

Considerations for the Approaching Holidays -

Dealing with separation or divorce during the holidays can be a stark reminder of happier times. This is especially true for children. No matter how angry you may be with your spouse, he/she is the parent of your children. Respect that. Keep your children’s best interests as the top priority. Do not speak negatively about your spouse or make kids feel “caught in the middle.”

Develop a parenting schedule. Indiana Parenting Time Guidelines offer schedules for holiday time, but we know that holidays don’t often work that way. While you may want to consider the guidelines, make a schedule which fits your family. Stick to the schedule. Drop off the children on time. Each moment is precious for them. Delays can result in larger conflicts.

Consider Family Traditions.  Holiday traditions are one thing children can look forward to even in difficult times. If your family has holiday traditions, make efforts to continue them. If the divorce or separation is recent and you believe it may be difficult on the children, consider a vacation or start a new fun family tradition that the children can get excited about.

If historically your family celebrates Christmas on Christmas Eve and your spouse’s family celebrates on Christmas day, create a schedule so that the children can participate and enjoy both families’ traditions each year.

Alternatively, it might make sense to alternate holidays rather than break up the day for the children by going to two homes. Doing so can create a relaxing day, instead of one spent racing from one get-together to another.

Communicate. If the children are not with you for the holidays, call them or send cards or emails. Consider celebrating before or after. Children love celebrations and gifts any time. Create a special day for you and them. If the children spend the holiday with you, let them speak with the other parent.

If the children are too young to call, help them make or receive a call. Give them a quiet moment together.

Coordinate gift-giving. Ask your ex-spouse what he/she plans on giving the child. Share your plans as well.

Help your children buy or make a gift and card for the other parent. Offer to take your children shopping to buy presents for the other. For young children especially, this is an exciting time, and they want to give as much as they receive. Put your feelings aside and take your child shopping for the other parent. Building healthy relationships with both parents creates a winning situation for everyone.

Remember, your spouse will be in your life long after the divorce and the children are grown. The more you are able to communicate and co-parent, the easier the transition will be on you and your children.

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 issues contact our firm at 317-569-2200 or hzlegal.com.

Happy holidays to you and your family!

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 www.hzlegal.com.

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 www.hzlegal.com.

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 www.hzlegal.com.

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 www.hzlegal.com.