Addressing Back-to-School Issues by Collaborative Practice

     Whether you are separated or divorced, or share a child with a former partner, there are issues which commonly arise in July and August prior to the start of school.  These back-to-school issues often need immediate attention, and court calendars may not accommodate the issue in a timely fashion.  In addition to the time crunch, litigating the issues may be cost prohibitive.  

We are often asked whether issues in a post-dissolution or a post-paternity decree can be addressed collaboratively.  The answer is a resounding “YES!”  It is always better to resolve children’s issues by collaboration and open communication than by litigation.  Not only does it address immediate issues, but collaborative practice sets the stage for future resolution via communication between the parties without the need for attorneys.

            Where the children attend school is often a source of disagreement, the desire of a party to have a child attend private or parochial school instead of public school, and the payment of the cost of that private or parochial education, are often issues that are not fully addressed in divorce or paternity decrees because of the age of the children at the time of the decree.  Collaborative practice can be used to work through these issues in positive ways, and sets the stage for resolution of similar issues that may arise as the children grow.  Child specialists are often used to evaluate the educational process and the application of the proposed education to the individual child.

            The use of medication, i.e. prescriptions for ADD, ADHD, and depression, are often hotly contested between separated parents.  Parents are quick to make judgments as to the best interests of his/her child without considering the position of the other parent.  Again, child specialists gather information from treating health care professionals and educators, as well as from parents, and work with the parents and their attorneys to resolve the issues peacefully.  

            The financial impact of sending a child to college is significant.  Some parents save and are prepared for those large bursar bills, while others haven’t been able to save, and find themselves in the financial situation of being unable to pay for college.  Collaboratively trained financial specialists are useful in evaluating the financial impact of college and applying financial strategies to create plans of action for college payments.  Creative solutions are often available when the parties use knowledgeable professionals to help guide them through the process.

            Extracurricular activities, and the expense of those activities, increase greatly as the children age.  Some parties can afford to have the children in every activity from school- supported sports to private/club sports.  Others simply cannot.  Collaborative practice can be used to help the parties view these activities rationally and cooperatively.  It allows the parents to openly dialogue as to the best interests of the child in participating in the sport or sports and the financial impact of the parent, and perhaps the child, by allowing the child to participate.  

            Collaborative practice is an efficient and time effective way to 1) evaluate the problem; 2) research resolutions; and 3) apply plans of action that resolve issues.  Collaborative practice is an excellent tool to resolve all family issues – not just issues that arise during the divorce.  Efficient, effective, and economical:  collaborative practice is the answer to your post-decree disputes!

What are the Benefits of Collaborative Divorce?

       For those of us who practice collaborative divorce, a description of its benefits can take pages and pages of text -- especially for those of us who have been representing clients in divorce litigation for many years.  We have experienced first-hand the frustration, anger, hurt and disillusionment that often accompanies the traditional litigation process.  Here is a summary of SOME of the benefits of the collaborative process:  

Time.  Couples who decide to divorce do not make the decision quickly.  It has been a long-term process which has involved a lot of thought and discussion.  Once the decision to divorce has finally been made, many clients are disappointed at the length of time it can take to resolve the dissolution action and finally be divorced.  In litigation cases, the parties are subject to the court’s calendar. Divorce cases are often set several months in advance, and then may be continued if set behind other civil cases and criminal jury cases.  The delay in actually getting to court may have a negative financial and/or emotional impact on the parties.

In collaborative cases, the parties schedule their meetings at times that suit their schedules.  They produce documents and records, and respond to inquiries informally during 4-way meetings (parties and counsel) with open dialogue.  There are no time restraints, and the parties are free to work through the dissolution or post-dissolution issues on their timetable.  

A view of the whole picture.  In a litigation-track divorce, parties work independently of one another, and his/her case is developed from information that he/she knows or has specifically requested from the other party.  In such cases, parties do not always see the broad picture until they are close to, or at, trial. 

In collaborative cases, the parties meet in 4-way meetings, and open dialogue is encouraged so that parties and counsel understand all of the issues.  This open dialogue saves time in that cases are developed with all pertinent facts known.  It also saves attorney fees in that formal discovery requests (Interrogatories and Request for Production of Documents) are not necessary.  Parties who know the whole picture are able to carefully consider the information and make informed decisions about their future.

 Command your own destiny.  It is true that a party may “command his own destiny” in litigation track cases through settlement negotiation and alternative dispute resolution (ADR), i.e. mediation.  However, in litigation track, such negotiations and ADR occurs toward the final stages of the case, and often just before the trial setting.  And if a case is not settled prior to trial, it is subjected to the Court for complete decision making.  When a case is tried, the parties have no control over the court’s decisions, as those decisions are at the discretion of the court. In collaborative cases, parties begin 4-way meetings right away and decisions can be made during the process after presentation and collaboration of the facts and issues.  The collaborative process allows the parties to have a say in their future and the future of their children from the very beginning. 

Maintain respect and civility.  Parents who are divorced are forever linked to the ex-spouse.  They will see each other at times such as sporting events, graduations, weddings and grandchildren’s birthday parties.  Parents who are respectful and civil are often welcomed by the children at these events, while parents who are bitter and angry are not.  

Collaborative practice allows the parties to divorce in such a way that respect and civility is maintained.  The parties jointly make decisions about custody, parenting time and division of debts and assets, but they also discuss communication techniques and “rules of the game,” such as when significant others will be introduced to the children, same/similar parenting rules, punishment guidelines and commitments to avoid negative statements about the other in the presence of the children.  

Save money.  Last, but certainly not least, is the savings of attorney fees and litigation costs.  Collaborative practice does require legal services such as conferences with clients, attendance at 4-way meetings, review of financial documentation and information, preparation of summaries and proposals, and preparation of final Agreements and Decrees.  However, there are many costs that are not incurred, such as deposition fees, exhibit preparation (only for the hearing to be continued and exhibits redone at a later date), custody evaluations, discovery requests, and expert witness fees. 

If “experts” are needed, collaboratively trained professionals (i.e. child and financial specialists) are engaged as neutrals to work with the parties to resolve issues.  The costs related to these specialists are, more often than not, less expensive than hiring an expert witness such as a custody evaluator or a forensic accountant.

The time effectiveness of collaborative practice results in financial savings to the parties because marital bills and expenses are addressed early in the process.  Parties often save money to service credit card debt and marital residence expenses during the divorce process because collaborative cases can be finalized sooner than the matter can be tried and resolved by judicial decree.

  If you are interested in knowing more about the collaborative process, contact any member of our collaborative practice team.  We would be glad to answer any questions you may have!

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