FAMILY LAW GUIDELINES
Here are the important guidelines to follow when you are involved in a family law case.
Things Clients Should and Should Not Do
1. Do not enter a written agreement or oral agreement with your spouse without consulting with your attorney first. Let your attorney do the job you are paying him or her to do.
2. Do not assume your question about the case is “stupid” or that you are “bothering” your attorney by asking a question. Every client is different and every client’s understanding of his or her case is different. Unless you tell your attorney otherwise, he or she may assume you understand what is going on and everything he or she has told you about your case. If you are concerned about the cost of asking your attorney a question, try saving up your questions until you have several, then send your attorney a letter, fax or e-mail containing multiple questions. Do not withhold information from your attorney!
3. Do not assume the attorney is not paying attention to your case just because the attorney has not communicated recently. Most cases go through one or more periods of time in which there is not much activity. Your attorney should contact you if there is something going on, but will probably not contact you just to tell you that nothing is going on right now. If you have any concerns, call or e-mail your attorney.
4. Do not seek or listen to advice from friends, relatives, and co-workers about their own family law cases in the hope that the information they give you will somehow shed light on your own case. There are several reasons why information about other people’s cases is not useful. For one, the law in Indiana may have changed since the other person’s case was completed. Of course, each client’s case is different and each opposing party, guardian ad litem, mediator, and judge is different. When explaining his or her case, your friend or relative will probably exaggerate or provide a distorted or incomplete explanation of what really happened. Often, he or she may portray himself or herself as a victim who got the short end of the stick. Family law cases are fact-specific, so someone else’s experience probably has little if any relevance to your own situation. Rely upon your lawyer for advice, and do not confuse yourself by discussing other people’s cases.
5. Do not fight about every single item in the case unless you are prepared to pay your attorney a great deal of money.
6. Do not assume that the judge is biased against you because he or she did not give you everything you wanted at a hearing. In addition, do not blame your attorney for the judge’s decision or actions in your case. The attorney tries his or her best, but the judge is the ultimate decision-maker in your case. It does not matter what you think is fair, or what your attorney thinks is fair. It only matters what your judge thinks is fair, and what is fair to one judge, may not be what is fair to another judge.
7. Do not assume you will have more money at the end of your divorce case than you did while you were married. Chances are you will have less. There are now two (2) households to maintain on the same pot of money, therefore each parent’s lifestyle and finances may be in worse shape at the end of the case than at the beginning.
8. Do not talk to the children about the other parent in negative terms. The children take criticism of the other parent as criticism of themselves. Typically, they love both parents, not just you.
9. Do not talk to the children about your legal battles or upcoming hearings, including custody evaluations. The children need permission to be children, not adults, therefore you should not force them to take sides in a battle between you and your spouse. Indeed, putting the children in the middle of an adult dispute can damage them psychologically.
10. Do not refuse to cooperate with the other parent in changing visitation dates and times. You too will need to other parent’s cooperation in the future when you need to adjust the parenting time schedule.
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QUESTIONS REGARDING DIVORCE & FAMILY LAW
DIVORCE & FAMILY LAW FAQ
Until 60 days have passed, the Court lacks legal authority to enter a decree of dissolution of marriage. While it is theoretically possible to get a divorce finalized in 61 days, most divorces will take longer. It typically takes some time for both sides to obtain information and documentation of the the assets and debts of the marriage. Factors such as business ownership, complex assets, unresolved tax liability and many others can complicate a divorce case. If children are involved, there are many more issues to be addressed. Contested custody cases can be especially complex and may involve psychological evaluations, and third parties such as counselors and/or guardian ad litems (court-appointed advocates for the children). Attorney and court schedules, client support, the attitude and strategy of the opposing attorney and even pandemics may influence the amount of time it takes to complete a case. In simple cases, you should expect your case to last from 3 to 6 months. In more complicated cases, expect your case to take 6 months to a year. In high conflict cases, the case could take longer. Remember — these are only estimates.
“Joint legal custody” means shared decision making between the parents. In general, it applies to major decisions affecting the children in the areas of religious upbringing, education, and healthcare. “Physical custody” has to do with how much time the children spend with each parent. “Sole physical custody” means that the parent has the children for more parenting time overnights than the other parent. “Shared physical custody” means each parent has the children for 50 percent of the parenting time. Parents frequently use the term “joint legal custody” when they mean “shared physical custody.” If there is a custodial parent (a parent who has more overnights than the other), the non-custodial parent will normally be entitled to parenting time. Legal custody and physical custody can be structured in the following ways:
- The parties can share joint physical and legal custody of the children, which means that the children spend equal time at each parents’ home, and the parents should consult with one another when making major (not day-to-day) decisions about education, healthcare and religion for the children. Decisions must be agreed upon.
- One party can have physical custody of the child, with both parties sharing joint legal custody, which means the child continues to live primarily with one of the parents, but the parents still consult each other and make joint decisions with regard to education, healthcare and religion. Decisions must still be agreed upon.
- One party can have physical and legal custody of the child, which means the child primarily lives with one parent and that parent makes all the major decisions concerning education, healthcare and religion. The custodial parent should consult the other parent, but can make the final decision even if the other parent disagrees.
An equal division of the marital assets and liabilities is presumed to be a just and reasonable division. However, there are other factors the court is required to consider in determining whether there should be a deviation from an equal division of the marital assets and liabilities.
No. Indiana is a no-fault divorce state. This means that in order to get a divorce in Indiana, you do not have to prove to the court that either the husband or the wife is to blame for the breakdown of the marriage. Therefore, terms such as abandonment are no longer used. However, there are other issues one should consider before leaving or abandoning your home. Unless physical safety is an issue, consult your attorney before you move out.
In Indiana, visitation is called “parenting time.” The amount of parenting time a non-custodial parent will have can vary widely from case to case. In Indiana, the Indiana Parenting Time Guidelines will apply to most parenting time. These guidelines establish what is considered to be minimum parenting time, but many non-custodial parents will receive more parenting time than the guidelines would allow. In general, parties are free to determine their own parenting time plan, since they know what is in the best interests of the children. Most agreements give parties legal authority to determine their children’s parenting time. When the parties cannot agree, they will typically be ordered to follow the parenting time guidelines. In some cases, parenting time will have to be litigated.
You will not necessarily need to testify in Court but testifying is always a possibility. Many divorces are settled between the parties without ever going to court. However, sometimes one or more issues cannot be resolved between the parties and their attorneys. Many of those cases will settle in mediation (which is a prerequisite to trial in most domestic relations cases). Only a small percentage of cases will go to trial. If a final hearing is needed, then you will have to testify and present evidence so the Court can make an appropriate decision.
When custody is in dispute between the parties, you may be in for a major fight. Custody cases are often emotional and high-conflict. A high conflict case may involve each party completing formal written discovery (i.e. requests for information). Each party may have allegations against the other and each will try to gather evidence to demonstrate the other party’s unfitness. An intervention by a guardian ad litem or custody evaluator may be ordered by the Court. A custody evaluator may be a psychologist who interviews the parties, the children, and any other relevant witnesses. Once he has completed his investigation, he will typically write a report which has recommendations concerning custody. A guardian ad litem may be a trained volunteer or an attorney who is appointed to advocate for the best interests of the children. The GAL will make an investigation and write a report with recommendations. Securing a GAL in your case means giving a voice to the children (who are not going to testify at trial). In some cases, this can be very important since the parties may be in disagreement about what is going on and the children may end up resolving the issue without even knowing it. Some custody cases will involve medical issues and mental health evaluations. The trial of a custody case can take a full day of Court time, or more.
Child support is calculated using a standards established by the Indiana Supreme Court. The Court’s procedures and standards are set forth in the Indiana Child Support Guidelines. Child support is typically calculated by starting with the gross weekly income of both parents, then factoring in such things as work-related childcare, health insurance premiums, and the number of overnights the children spend with each parent. There are other variables. Child support is usually paid by way of an Income Withholding Order. This means that child support is withheld from the support payer’s paycheck, processed by the state’s central collection unit, then direct deposited or credited to the other parent. If you have variable income, are self-employed, or are unemployed, you may be imputed income based upon what you are capable of earning. Child support is fact sensitive and each case is unique. A thorough evaluation of your income and the other parent’s income should be done before determining the child support amount.
Yes. Even if you are not a custodial parent, by statute you are legally entitled to full access to your children’s medical records. However, some schools and/or medical practitioners may not be aware of your rights, and may be hesitant to release the information to a non-custodial parent. You can easily find a copy of the applicable statute which you can share with the offender. Otherwise, a quick telephone call from that parent’s attorney will most likely resolve the situation.
The cost of a divorce will vary in each case and will depend upon the parties, the issues and how much each party wants to litigate the matter. The more the parties can agree upon, the less need for attorneys and, therefore, lower attorney fee costs. However, the more the parties disagree, especially with regards to child custody, the more a divorce will cost. Other factors such as complex assets and or debts, or issues that need more involved investigation, will affect the cost of the divorce. In addition to attorney fees, there may also be expenses for custodial evaluations, home appraisals, pension evaluations, and other expert opinions as to asset values.
In the ideal world, everyone should have an attorney when they are involved in an action for dissolution of marriage. However, in the real world finances may be a problem, and the divorce issues may be simple enough that only one attorney — or no attorney — is needed. However, according to the Indiana Rules of Professional Conduct, an attorney may not represent both parties in a dissolution case. Still, there are many cases that are settled with only one attorney. Although that attorney technically represents only one of the parties, the objective should not be to trick the other party but to achieve an agreement that is just and reasonable. If your spouse is trustworthy and fair minded, you might not feel you need your own attorney. If your spouse is greedy or unreasonable about one or more issues, it is a good idea to get your own counsel. In general, if there are substantial assets or children, it is a good idea to have at least one attorney on the case. If there is conflict between the parties or child-related issues are in dispute, then an attorney is a must. If there are few assets and no children, you may be able to complete you divorce without an attorney. Refer to the Indiana Supreme Court’s self-service page for more information on how to do this.
Often, the non-custodial parent will get parenting time according to the Indiana Parenting Time Guidelines, but there are many custom parenting time plans. The Court will always encourage parents to develop their own parenting plan, and to let it evolve and change overtime as the children get older and their needs change. Generally, the non-custodial parent receives parenting time pursuant to the Indiana Parenting Time Guidelines at a minimum. The courts look to the Indiana Parenting Time Guidelines for guidance in determining the amount of parenting time each party receives if the parties are unable to agree to a parenting time plan. By agreement, parties can structure a parenting time plan that works better for their schedules and works in the best interest of their children. If the parties cannot agree, the Court will hear evidence and issue an order that it believes is in the children’s best interests.