You’ve Got Your Decree! – Here are Some Suggestions for Tying up Loose Ends.

           So, you’re there!  You’re divorced!  You take a look at the final Decree and breathe a sigh of relief.  However, here are a few suggestions to make sure all of those pesky loose ends are tied up neatly.

            If, as a part of the Decree, you have been awarded a division of your ex-spouse’s retirement account(s), make sure your portion of the account(s) is actually transferred to your individual account, set aside in your individual name, or reserved in your name for distribution at a future date pursuant to the plan.  If the plan is a “qualified plan,” such as a 401(k) or pension, follow up with your attorney within 60 days to make sure the appropriate Qualified Domestic Relations Orders have been sent to the plan administrator.  [Beware: QDROs may take several months to be approved by the plan administration, so calendar follow-up dates every three months until you receive confirmation that the funds have been transferred.]

            Homestead and other tax exemptions do not follow the new owner if the real estate is transferred – even if quitclaimed from husband and wife jointly to husband or wife individually.  If you have received ownership of real estate via a Quitclaim Deed, you must re-file your tax exemptions with the county.  Take a copy of the Quitclaim Deed with you to the county office in case it has yet to be recorded and entered into the county records.

            If you do not wish your former spouse to be a beneficiary of your life insurance, retirement account, annuity policy, life estate, trust, and paid on death account, you should immediately notify the company and/or plan administrator that you wish to change the beneficiary designation.  Keep a record of your contact with the company and/or administrator, and continue to follow up until you have confirmation that the beneficiary designation has been changed.  Trust documents, deeds showing a remainder interest, and paid on death accounts should be changed as soon as practicable after the divorce decree is finished.  Also, update your Last Will and Testament and/or Living Trust documents to reflect your new marital status and to name new beneficiaries.  

            Close any joint credit card and bank accounts and/or transfer those accounts to your individual name.  We also recommend that you monitor your credit report for a year or so to make sure your spouse is not opening credit card or loan accounts in your name or otherwise using your social security number without your knowledge.

            If you have children, open a child support account with the clerk’s office of the county where your divorce was granted (if you didn’t already do so during the divorce proceeding).  We recommend that all child support payments be made through the state so that all payments are properly recorded and distributed.

            Notify doctor’s offices, schools, day care providers, and other healthcare or educational providers that you and your spouse are divorced.  If special arrangements need to be made for attendance at appointments and school events, or for pick up and drop off of the children, provide a copy of that portion of the Decree to the office and make sure everyone knows about the required arrangement.  Do not forget to change addresses with all healthcare and educational providers (both mail and email) so that you are getting all of the pertinent information.   

            If you have changed your name, you will need to obtain a certified copy of the Decree and/or court order granting the name change.  You may obtain the certified copy at the clerk’s office in the county where the divorce was granted.  There will be a fee, and most offices will not take personal checks.  Come prepared to pay cash.

            Check the Bureau/Department of Motor Vehicles website for information and documentation you will need to take with you to change your name and address on your driver’s license.  Do the same for the Social Security Administration.  Make sure you have all of the documents required BEFORE you go.  Government agencies do not make exceptions to the required documentation.

            Keep a copy of your Decree for reference, along with a copy of the parenting time statute or guidelines (depending on the state where you live).  If there is ever a disagreement between you and your ex-spouse as to distribution and/or parenting time set forth in the Decree, those documents are your “go to” resources for quick answers.

            This article is not intended to be an all-inclusive list or description of everything that needs to be done to tie up loose ends after your dissolution, and may not address all of your individual and specific needs.  If you have additional questions or comments, please contact us.  We will be happy to talk to you about your individual questions and needs.

Is Collaborative Divorce Right for Me?

             Collaborative divorce is a process by which couples work through issues of child custody, parenting time, division of financial assets and payment of marital bills and expenses through non-litigation techniques guided by specially-trained, experienced family law attorneys with the assistance, if necessary, of collaboratively trained professionals, such as child and financial specialists.  The goals of collaborative practice are similar to litigation in that collaborative professionals consider the best interests of the children in custody and parenting time issues and the law in the division of assets and debts.  However, collaborative professionals do not consider these issues in a vacuum, but rather in ways that also address the emotional and personal needs of the family that is being separated.  Collaborative practice recognizes that the spouses are often forever linked – even if divorced – by children, grandchildren and long-time friends.  

            The collaborative model is designed to assist divorcing spouses work through their disputes constructively and peacefully.  This allows both parties to move forward as individuals with dignity and respect without the post-traumatic stress that often accompanies divorce.  

            Just as in divorce litigation, collaborative practice requires both parties to provide full disclosure of all relevant issues and facts involving the children, as well as a full disclosure of all financial assets and liabilities.  Both parties exchange all information and documentation necessary to make informed decisions regarding custody, parenting time, and division of the marital estate.  Moreover, each party is given the time necessary to process, evaluate, and apply the information to his/her individual circumstances.  Through collaboration and communication, parties are able to resolve their differences in such a way that is beneficial to both.      

            There is a Chinese proverb that is often used by collaborative professionals:  “Never cut what can be untied.”  This is especially true in cases where married couples, especially those with children, know that divorce is inevitable, but do not wish to undergo the financial, personal and emotional expense and stress of litigation.  Dissolution is never a “winner-take-all” proposition.  In fact, in most cases, there are no real winners, only losers.  Protracted litigation takes a personal toll that may never be repaired.  Litigation often results in emotional hurt, hard feelings, distrust and outright hatred, which negatively impacts the ability of the parties to successfully co-parent their children.    

            Collaborative dissolution is for anyone who doesn’t want to ruin his/her life by a divorce.  Divorce is never a happy experience, but collaborative practice makes it as good as it can be.  If you are interested in collaborative divorce, call any member of our collaborative team.  We will be glad to answer any questions, and help you decide whether collaborative divorce is right for you!      

What's in a Name?

            Five days after Kim Kardashian and Kanye West welcomed their baby girl, the new arrival's name has been revealed. And it's likely to surprise the couple's fans. The reality star and the rapper named their daughter North West.  In most states, you may give your child any first, middle, and last name you like. Whether you are married or not, you don’t have to give the baby the last name of either parent if you don’t want to, and the child does not have to have the father’s last name to be considered “legitimate.”

 

            In Indiana, the natural father of a child born out-of-wedlock enjoys no rights regarding child's name until his paternity has been established in the eyes of the law. It is only once paternity is established and both mother and father potentially enjoy equal legal rights as parents that both mother and father will have equal rights in naming of child.

 

            So what would happen if Kim and Kanye break up? Or if Kanye is not the biological father? This presents an interesting question… can Kanye take away his last name or can Kim rename the baby a Kardashian?

 

            In an Indiana case in 1995, the Courts found that where one legal parent contests petition filed by the other to change name of their minor child and paternity has already been established, trial court must determine whether name change is in child's best interest; beyond insuring child's continued welfare, this inquiry guarantees both parents equal opportunity to assert their legal rights in regard to naming of their child.

 

            So in conclusion, it depends. If Kanye is not North’s biological father and Kim wishes to have the baby have the same last name as hers, it seems likely that the Courts would find that that is in the baby’s best interest. However, if they break-up, but paternity is established, it would be unlikely that either could change North West’s name.

 

            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.

 

Grandparent Visitation Rights

 

           In a recent case In Re The Guardianship of A.J.A. and L.M.A., J.C. v. J.B. and S.B., the Indiana Court of Appeals reversed an order vacating paternal grandmother’s grandparent visitation rights on the basis that the trial court initially granting the grandparent rights lacked the statutory authority to do so.  The Court of Appeals found, however, that the guardians’ objections to her want of standing were waived when the guardians failed to appeal the original order.

            J.C. is the mother of M.A., who had two daughters with his wife. The girls were home when he shot and killed his wife. M.A. went to prison and the girls moved in with M.A.’s half brother, J.B., and his partner, S.B. The couple later filed for guardianship of the girls, in which the grandmother, (J.C.) filed a motion to intervene and a petition for grandparent visitation.

            The grandmother was eventually granted unsupervised grandparent visitation on a strict schedule. The guardians didn’t appeal the original order or the amended order. After the grandmother initiated a telephone call between one of the girls and her incarcerated father, the guardians sought to terminate the grandmother’s visitation. They claimed she never had standing under the grandparent visitation statute. The grandmother argued that the guardians waived their standing by consenting to the provisional visitation agreement and by not appealing the original visitation order.

            The trial court ruled in favor of the guardians and vacated the visitation order.

            The Court of Appeals reversed the trial court and concluded that, although the grandmother lacked standing to pursue the original grandparent visitation order, the guardians’ objections to the grandmother’s standing were waived when the guardians failed to appeal the original order. The Court also concluded that the grandmother’s visitation rights were not terminated by the adoption of the minor children, because they were adopted by their uncle and his partner, and not a non-relative third-party.

            However, the grandmother’s fight may not be over yet.  The Court of Appeals did mention that the subject may be revisited.  “Given that nearly a year has passed since the grandparent visitation order has been vacated, it may be wise for the trial court to schedule a hearing sua sponte on the children’s best interests to determine whether and to what extent grandparent visitation should occur in the future,” Judge John Baker wrote in In Re The Guardianship of A.J.A. and L.M.A., J.C. v. J.B. and S.B., 48A02-1204-GU-326.

Supreme Court Hears Arguments on Same-sex Couples Marriage Rights

The Supreme Court began hearing oral arguments today on marriage laws, which could lead to a wide array of outcomes, from essentially leaving in place the traditional marriage laws to proclaiming same-sex marriage is a fundamental right under the Equal Protection Clause of the 14th Amendment of the United States Constitution.

According to the Pew Research Center‘s poll on public opinion of same-sex marriage in the United States, most recent polls show a slight majority support for the the legal recognition of same-sex marriage. Support for same-sex marriages has increased steadily for more than a decade. In August of 2010, a CNN poll became the first national poll to show majority support for same-sex marriage, with many subsequent polls following suit.

Tuesday’s arguments will be over California’s Proposition 8. The case, Hollingsworth v. Perry has its genesis in 2004 when a group of gay couples went to the San Francisco courthouse in search of marriage licenses. They were turned down by the city government, so they sued in state court, ultimately winning in the California Supreme Court. That court decision prompted supporters of 'traditional' marriage to sponsor a statewide ballot measure, Proposition 8, which defined marriage narrowly as a relationship between one man and one woman. Voters approved Proposition 8 in 2008. The Supreme Court could uphold Proposition 8 or, conversely, it could decide to not only strike it down, but to invalidate any state law that limits marriage to one man and one woman. In the alternative, the Supreme Court could issue a limited ruling that applies only to California and several other states which allow domestic partnerships that are almost identical to marriage in all but name.

In a separate oral argument, expected Wednesday, the court will hear oral arguments in a challenge to one section of the 1996 Defense of Marriage Act, which for purposes of federal regulations and benefits, defines marriage as “a legal union between one man and one woman as husband and wife.”

A decision from the Supreme Court is likely by the end of its term sometime in late June.

What do you think?

Justices Remand for Additional Proceedings on Grandparent Visitation Order

 A mother of a child born out of wedlock allowed her child’s grandfather to have visitation with the child early on in his life.  However, once the mother re-married she began to curtail the visits.  Grandfather intervened and petitioned the Court for grandparent visitation.  The trial court granted the visitation including overnight visitation and a summer family vacation.  The appeals court affirmed this ruling and the trial court’s decision went to the Supreme Court. The Supreme Court sent the case back to trial court for new findings and conclusions without hearing new evidence.  Review the Supreme Court’s reasoning by checking out the article at http://www.theindianalawyer.com/justices-remand-for-more-proceedings-on-grandparent-visitation-order/PARAMS/article/30920.

If you are considering a divorce, currently face a divorce, or if you are a grandparent seeking visitation of your grandchild, 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 click here to contact us online.

IN Supreme Court Affirms What is Said in Mediation, Stays in Mediation

For the full-text article, please visit:

http://www.theindianalawyer.com/supreme-court-affirms-what-is-said-in-mediation-stays-in-mediation/PARAMS/article/30753

Amendments to the Indiana Parenting Time Guidelines to Go Into Effect March 1, 2013.

For additional information on the upcoming modifications to the IPTG, please visit the following link:

http://www.theindianalawyer.com/justices-adopt-changes-to-parenting-time-guidelines/PARAMS/article/30480

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:

http://www.indystar.com/viewart/20130116/NEWS/301160330/Court-Ex-husband-must-support-artificially-conceived-kids

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 !!!