How To Approach The Prenuptial Agreement Idea

Esther Schonfeld wrote what I think is perfectly sensible way to approach prenuptial agreements:

While not an antidote to a difficult divorce, a prenuptial agreement certainly can make divorce less painful. I often describe prenups as insurance policies that protect against a protracted and brutal divorce proceeding. Prenuptial agreements provide a realistic alternative to a messy divorce by allowing both spouses to determine their own financial fates at the outset of the marriage. Difficult as it may be to discuss money and the possibility of divorce before the marriage has even commenced, doing so can sometimes prevent a considerable amount of future heartache.

New Indiana Court of Appeals Case - Grandparent Visitation and Step-Parent Adoption

From today's Indiana Lawyer came COA: inequity in grandparent visitation act

A.B. and N.E. opposed L.D's adoption; the trial court granted some visitation to N.E. before the adoption was finalized. Once the adoption petition was granted, the paternal grandparents told N.E. they planned to phase out visitation with her.

The mother and N.E. appealed several issues, including N.E.'s rights to visitation as a grandparent. But based on the language of the act, her visitation can't continue now that the child has been adopted, the Court of Appeals concluded. The act provides that visitation rights survive adoption by a stepparent or person who is biologically related to the child. Since the paternal grandparents aren't biologically related to L.D., N.E. isn't entitled to visitations as a matter of law under the act, wrote Judge Edward Najam.

In addition, if N.E. had been the one to adopt the boy, then the paternal grandparents wouldn't have had any rights under the act because N.E. isn't biologically related to the boy.

"Whether this consequence was intended or should be rectified we leave for the Legislature to decide," wrote the judge.

I am actually a bit more interested in the due process issue raised as I really do not think this factual situation will be common.

More importantly, it shows how legislation and litigation interplay with one another. I doubt many in Indiana's General Assembly imagined the factual situation of the litigation when they voted on the legislation.

So You Think Common-Law Marriage Will Protect You?

Since I keep getting surprised by people who think Indiana permits common law marriage (as well as other states), I offer Common-Law Marriage: A Nineteenth-Century Relic with Continuing Relevance:

"But here's the hitch: Common-law marriage is not allowed in most states today. During the middle of the Nineteenth Century, most states permitted common-law marriage. By 1931, however, only half the states still allowed common-law marriage. Today, that number is down to nine (plus the District of Columbia).

There are different possible explanations for the rise and fall of common-law marriage. In the Nineteenth Century, it functioned to validate marriages where some technical requirement was not met, and to make marriage available to those without ready access to clergy or a license. It also legitimated relationships in an era when non-marital sex was not only taboo, but often a crime."

If you want to live together, the only way to protect your property is to get a cohabitation agreement. Without a cohabitation agreement, relying on the courts is expensive and risky. With a cohabitation agreement in hand lessens the cost and riskiness of litigation.

Or as put by Sarasota Personal Injury Lawyer in Married Versus Cohabiting Couples:

Couples who are not married but live together can create a cohabiting agreement. This will protect both parties by recording whose assets are whose and any shared assets so that a decision can be made about the division of the assets if the couple were to break up. It will also determine which party will be responsible for things such as children or bills. Couples can record anything in these agreements, but generally homes, monetary assets, and children are recorded.

Couples will need to understand that the family laws for married couples and cohabiting couples are very different and play a big role in what happens upon a split up.

No, I cannot recommend that you not use a lawyer in writing up a cohabitation agreement. I think Personal Money Store explains quite well why not in Cohabitation Agreements Protect Unmarried Couples

When should an agreement be drafted and why is an attorney necessary?

It is generally recommended that a couple enter into a written cohabitation before moving in together. Committing an agreement to writing before cohabiting allows couples to clearly identify their financial boundaries, expectations, and future plans for wealth creation. Although anyone can draft any kind of an agreement for him or herself without legal assistance,it is not recommended that couples draft cohabitation agreements themselves.

When unwed couples separate and lawsuits ensue, cohabitation agreements that were not drafted by attorneys are frequently held to be invalid or unenforceable. Often this is because the agreements were so poorly drafted or were drafted in such a way that one or both parties may claim to have been treated unfairly.

Indiana Prenuptial Agreements - Setting them Aside for Fraud or Unconscionability

Let us go back to 1996 and Rider v. Rider, 669 NE 2d 160 for a description of unconscionability:

In this case, there is no evidence of fraud, duress, misrepresentation, or unconscionability at the time the contract was made. Leslie brought most of the property to the marriage; Charles brought few personal assets and a modest income from more than 35 years of work at the Delco Remy factory. Both were looking to protect their assets for themselves and for their heirs. Thus, the couple entered into an antenuptial agreement which would provide this protection. Even though at the time of marriage one spouse was close to retirement age and the other spouse had recently undergone several surgeries, the agreement was silent regarding support in the event that one spouse would become disabled. Given these circumstances, if such support had been important to either of the parties, surely it would have been included in the agreement. Rather, the agreement specifically stated that if the parties separated, neither would be entitled to support.

As discussed above, the trial court found that Leslie has assets worth between $65,000 and $85,000. However, due to her illness and her inability to work, she is not capable of supporting herself. Thus, the trial court found that the agreement is "not binding" with regard to maintenance, and awarded Leslie $225/mo. The Court of Appeals agreed, finding that "[a]n antenuptial provision limiting or eliminating spousal maintenance is unconscionable and will not be enforced when it would deprive a spouse of reasonable support that he or she is otherwise unable to secure." Rider, 648 N.E.2d at 665.

However, both the trial court and the Court of Appeals failed to consider the relative financial positions of the spouses. Unconscionability involves a gross disparity. See Justus, 581 N.E.2d at 1272. Thus, while an antenuptial agreement which would force one spouse onto public assistance may be unconscionable, we believe that a finding of unconscionability requires a comparison of the situations of the two parties. At the time of divorce, Leslie's assets were worth at least $65,000, and she received $645/mo. child support from a prior spouse. Charles had personal assets which were worth only several thousand dollars and a pension which paid a gross $1,247/mo. Enforcement of the antenuptial agreement would leave one spouse with virtually all of the real and personal property, while leaving the other spouse with a modest income stream. This is what the parties brought into their short marriage, and this is what they sought to protect. The alternative, as ordered by the trial court, would provide Leslie with almost all of the property and a significant percentage of the income stream. Given Charles' limited financial position, we do not find enforcement of the parties' own agreement to be unconscionable.

We agree with the trial judge that Leslie should continue to pursue her claims for disability and social security. While we sympathize with her, and we understand that enforcement of this contract eventually may force her to sell her home, we cannot find enforcement of this antenuptial agreement to be unconscionable. Finally, we note that this case does not involve a situation where, following divorce, one spouse is left with considerable assets while the other spouse is left virtually penniless, with no means of support. 165 Rather, in this case, one party is left with a modest income stream, while the other party is left with a modest amount of real and personal property.

And to 1997 and the Indiana Court of Appeals' decision in Pardieck v. Pardieck, 676 NE 2d 359:

Finally, we address the trial court's creation of a "good faith" exception to the enforcement of an otherwise valid antenuptial agreement. The court concluded that it could set aside the agreement "where one of the parties did not act in good faith throughout the course of the marriage, using the antenuptial agreement in an unconscionable fashion to shield what would normally be marital assets." Record at 127.

Even accepting the trial court's finding that Gregg acted in bad faith during the marriage, we decline to create a new exception to the enforcement of an otherwise valid antenuptial agreement.[2] Indiana law does not require that a general duty of good faith and reasonableness be implied in every contract. See First Federal Savings Bank v. Key Markets, 559 N.E.2d 600, 604 (Ind.1990) (not court's province to require party acting pursuant to unambiguous contract to be "reasonable," "fair," or show "good faith cooperation"). To the contrary, when a court finds a contract to be clear in its terms and the intentions of the parties apparent, the court will require the parties to perform consistently with the bargain they made. Id.[3]

Here, the contract terms are clear and unambiguous. The assets Gregg listed in Exhibit A, including the Parkland, Inc. stock, are his separate property and are not subject to division. As stated earlier, this necessarily includes the assets accumulated by Onyx Paving, Inc. Julie does not have access to the wealth accumulated by her husband under Parkland, Inc. While that result may now seem harsh after 11 years of marriage, Julie freely entered into the antenuptial agreement, and the agreement was not unconscionable at the time of dissolution. As a general rule, the law allows persons of full age and competent understanding the utmost liberty to contract, and their contracts, when entered into freely and voluntarily, are enforced by the courts. Pigman v. Ameritech Publishing Inc., 641 N.E.2d 1026, 1029 (Ind. Ct.App.1994). Thus, we conclude that the trial court erred when it refused to enforce the antenuptial agreement according to its terms.

A Brief History of Prenuptial and Postnuptial Agreements - Indiana and Elsewhere

Thank Google Scholar for this post. While doing some research I ran across Lifting the Veil of Ignorance: Personalizing the Marriage Contract, 73 Ind. L.J. 453 (1998). I suggest anyone having any opinions on our current family law system to give this a careful reading - some history, some statistics that might not be commonly known. Also, the writers avoid the usual dry as dust, insomnia inducing writing of most academics.

In all of that, the writers give a history of marital agreements and why few entered into prenuptial or post-nuptial agreements (on the way to proposing some interestingly unique ideas for reform).

Back in 1996, the Indiana Supreme Court handed down Rider v. Rider, 669 NE 2d 160, that gave this history of prenuptial agreements:

Antenuptial agreements are legal contracts which are entered into prior to marriage which attempt to settle the interest each spouse has in property of the other, both during the marriage and upon its termination. This court has long held antenuptial agreements to be valid contracts, as long as they are entered into freely and without fraud, duress, or misrepresentation, and are not unconscionable. See Mallow v. Eastes, 179 Ind. 267, 100 N.E. 836 (1913); Kennedy v. Kennedy, 150 Ind. 636, 50 N.E. 756 (1898); and McNutt, v. McNutt, 116 Ind. 545, 19 N.E. 115 (1888). These early cases drew a distinction between agreements which took effect upon the death of a spouse as opposed to those which took effect upon dissolution of the marriage. Those antenuptial agreements which involved application upon the death of a spouse were "favored by the law as promoting domestic happiness and adjusting property questions which would otherwise often be the source of fruitful litigation." Buffington v. Buffington, 151 Ind. 200, 51 N.E. 328, 329 (1898). However, the courts took a rather dim view of antenuptial agreements which limited the legal obligation of support upon dissolution of the marriage. Watson v. Watson, 37 Ind.App. 548, 77 N.E. 355 (1906).

Since these turn of the century cases, the number of subsequent marriages in our society has increased substantially. See In re Marriage of Boren, 475 N.E.2d 690, 693 (Ind. 1985). Individuals, especially those who have children from previous marriages, may wish to protect their property interests upon entering into a marriage. Id. at 694. In Boren, we concluded that policy reasons no longer compel us to find antenuptial agreements which take effect upon divorce to be void per se. Further, we held that the same traditional contract tests which apply to antenuptial agreements which take effect upon the death of a spouse also apply to antenuptial agreements pertaining to the dissolution of marriage. Id. Boren was the last time we addressed the issue of the validity of antenuptial agreements.

Since Boren, our Court of Appeals has had several occasions to address this issue. The leading case is Justus v. Justus, 581 N.E.2d 1265 (Ind.Ct.App.1991), trans. denied. In Justus, the Court of Appeals was presented with a situation where the couple entered into an antenuptial agreement freely, without fraud, duress, or misrepresentation. However, during the course of the marriage there was a change in circumstances, and the trial court would not enforce the agreement in its entirety. The Court of Appeals noted that

[a]s a general rule, a contract is unconscionable if there was a gross disparity in bargaining power which led the party with the lesser bargaining power to sign a contract unwillingly or unaware of its terms and the contract is one that no sensible person, not under delusion, duress or distress would accept. The doctrine of unconscionability necessarily looks to the time of execution.

Id. at 1272 (citations omitted).

However, the analysis did not stop there. The Justus court continued with a discussion of cases from other jurisdictions, focusing primarily on Newman v. Newman, 653 P.2d 728 (Colo.1982). In Newman, the Supreme Court of Colorado applied the above general contract analysis for property division, but would not do so for maintenance. For the latter, the Newman court found that such provisions may become voidable as unconscionable due to circumstances existing at the time of dissolution. 653 P.2d at 734-35.

163 In Justus, the Court of Appeals noted that we, in Boren, had cited approvingly to Newman. Further, the Justus court found that where enforcement of an antenuptial agreement would leave a spouse in the position where he would be unable to support himself, the state's interest in not having the spouse become a public charge outweighs the parties' freedom to contract. Justus, 581 N.E.2d at 1273. Therefore, the Justus court agreed that a court may look to circumstances at the time of dissolution to determine unconscionability of an antenuptial agreement.[2]

***

We are asked in this particular case to examine an antenuptial agreement which was not unconscionable when made, but due to a 164 change in circumstances would operate to create a financial hardship for one spouse. We note that in 1995 Indiana joined the growing list of states which have adopted the UPAA. Indiana's version of the UPAA reads in relevant part:

If a provision of a premarital agreement modifies or eliminates spousal maintenance and the modification or elimination causes one (1) party to the agreement extreme hardship under circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide spousal maintenance to the extent necessary to avoid extreme hardship.

I.C. § 31-7-2.5-8(b). The Indiana statute did not take effect until July 1, 1995, and is therefore not applicable to this case. Still, the adoption of the UPAA provides useful guidance regarding the question of unconscionability, and supports the trend of applying traditional contract law unless the agreement is unconscionable at time of dissolution.

And there we have a brief history of prenuptial law in Indiana.

Correction to Child Support Duty to End at 19

It was pointed out to me this morning that House Bill 1356 did not pass out of committee. So my post here is wrong. My apologies for not double checking the action list.

Late News - SB0178 Passed out of Indiana House Committee

Robert Monday sent me an e-mail on the 17th that SB 0178 had passed the House committee. I have written before on this Bill here. From what Mr. Monday reported, there were some interesting points raised during the hearing and I think I will have a post on his report later in the week.

Indiana Agreements - Modifying Spousal Maintenance

Indiana has no alimony. What we have is spousal maintenance - and the General Assembly has limited when the courts can grant spousal maintenance (see my article here for more of an explanation). However, the parties can agree to what the courts cannot grant. What then if the parties agree to something - such as maintenance - which needs modification later, then what can the courts do?

That question gets answered by the Indiana Supreme Court in Voigt v. Voigt, 670 NE 2d 1271 (1996).

In addition to this legitimate concern for vexatious litigation, we believe modification of maintenance agreements approaches the limits of a court's statutory authority. As we have explained, the legislature intended to place severe restrictions on the power of courts to impose maintenance obligations. We have also noted that courts should exercise their authority to review settlement agreements with great restraint. Finally, it is obvious that a disgruntled former spouse should not be permitted to use the modification process to wage a collateral attack on a maintenance obligation. Farthing, 178 Ind. App. at 341-43, 382 N.E.2d at 945-46.

***

We think these cases, though not directly on point, establish a general principle applicable in the present case. Where a court 1280 had no authority to impose the kind of maintenance award that the parties forged in a settlement agreement, the court cannot subsequently modify the maintenance obligation without the consent of the parties. In essence, the parties must agree to amend their settlement agreement, because the sole authority for the maintenance obligation originally derived from their mutual assent.[13] In approving or rejecting any submitted modification agreement, a court should apply the same standard it would use in evaluating an initial settlement agreement.

We now hold that a court has no statutory authority to grant a contested petition to modify a maintenance obligation that arises under a previously approved settlement agreement if the court alone could not initially have imposed an identical obligation had the parties never voluntarily agreed to it. We therefore disapprove Pfenninger.

Notice the Indiana Supreme Court left open the issue of a trial court modifying a mainantence agreement that could have been imposed by the trial court. The Indiana Supreme Court tackled (kind of) that issue in Stuart v. Phillips, 734 NE 2d 1046 (2000):

The Court of Appeals reversed. Stuart v. Phillips, 723 N.E.2d 463 (Ind.Ct.App. 2000). The Court of Appeals concluded "that by expressly reserving the question of whether a court may modify a settlement agreement grounded in incapacity, 1047 caregiving, or rehabilitation," we had "created an exception to the rule that courts may not modify settlement agreements incorporated into the final decree." Stuart, 723 N.E.2d at 467. From this, the Court of Appeals held that "if the provision falls within the narrow parameters of maintenance orders that a court may impose without agreement of the parties, then the agreement may be subject to modification under the exception created by our supreme court in Voigt." Id. (footnote omitted).

However, Voigt expressly left open the question whether the court may take this action. We therefore disagree with the Court of Appeals that Voigt resolves the issue.

While this case pended on transfer, the parties filed a joint motion to dismiss the appeal, stating that their controversy had been settled and that Wife had filed a release of judgment in Bartholomew Superior Court. Because the parties have settled their dispute, it is not necessary to decide the question reserved in Voigt, and the question remains open.

More instructive may be Zan v. Zan, 820 NE 2d 1284 (2005):

Here, Joyce and Lawrence agreed that Lawrence would make rehabilitative maintenance payments to Joyce "due to the fact that [she had] not worked continuously throughout the marriage and needs assistance in obtaining an education to better employment opportunities." Appellant's App. p. 49. The trial court would have had the authority, pursuant to Indiana Code section 31-15-7-2(3), to order Lawrence to make such rehabilitative maintenance payments without the agreement of the parties.

Although our supreme court has not squarely decided the issue presented today, it is our view that the trial court may modify the Agreement under these circumstances. To hold otherwise may circumvent the parties' ability or desire to bargain independently without court intervention. Put another way, a party may be loathe to enter into an agreement such as the one here, knowing that a court could not intervene in the event of changed circumstances.

Even more compelling, when the Agreement is examined as a whole, it is apparent that the purpose of the rehabilitative maintenance provision was to enable Joyce to attend an educational or vocational training 1289 program. Specifically, the Agreement requires Lawrence to make rehabilitative maintenance payments for a full three years "so long as [he] remains employed in his current capacity with the FAA." Appellant's App. p. 49. While Joyce concludes from this clause that the only way, aside from the passage of three years, that Lawrence's obligation may be modified is if he loses his job with the FAA, our review of the Agreement leads us to disagree. A subsequent clause goes on to note that Lawrence "is agreeable to paying rehabilitative maintenance due to the fact that [Joyce] has not worked continuously throughout the marriage and needs assistance in obtaining an education to better employment opportunities." Id. It is apparent from this clause that the parties intended that the rehabilitative maintenance would assist Joyce "in obtaining an education" so that she could seek better employment opportunities. The evidence presented at the hearing showed that rather than obtaining an education, Joyce has collected over $18,000 from Lawrence and has instead apparently used it as a means of supporting herself. In our view, such was not the intent and spirit of the Agreement. Thus, under these circumstances, the trial court properly modified Lawrence's maintenance obligation

.

The points to take away from this:

1. Parties can agree to a spousal maintenance that the courts could not grant.
2. Do not expect the courts to modify an agreement that allows more than the courts could grant if circumstances change except for very narrow circumstances.
3. Be very, very careful drafting any maintenance agreements.
4. Because of #3, get a lawyer to draft or review any proposed maintenance agreements.
   

Indiana COA allows woman to establish maternity

I got notice of this from The Indiana Lawyer and I am relying on its COA allows woman to establish maternity. Not the usual material for this blog but I find it intriguing - if for nothing else it shows how family law does get into the cutting edge of social change and how the court use old tools to meet new uses.

"The Indiana Court of Appeals reversed the denial of an agreed petition to establish paternity and maternity of a child who was born of a surrogate, finding equitable relief should allow the biological mother to establish she is in fact the baby's biological mother."

***

The state argued in In the matter of the paternity and maternity of infant R., No. 64A03-0908-JV-367, equitable relief may be afforded under the circumstances of the case; T.G., V.G., and D.R. claimed Indiana's paternity statutes could be construed so as to apply equally to their situation.

"While we conclude that the public policy for correctly identifying biological parents is clearly evinced in our paternity statutes, it does not follow that we must embark on a wholesale adoption and application of these statutes in order to provide relief under the narrow set of circumstances we are presented with today," wrote Judge L. Mark Bailey. "Rather, it is for the Legislature to evaluate and deliberate comprehensive proposals for changes to these statutes."

The appellate court decided, however, that these circumstances suggest that equity should provide an avenue for relief. If equity ignores technological realities the law has yet to recognize, a baby born under these circumstances would be denied the opportunity other children have to be linked to those with whom he shares DNA. A surrogate would be denied a remedy available to putative, but not biological fathers, to remove an incorrect designation on a birth certificate and avoidance of legal responsibilities for someone else's child, the judge continued.

Indiana Cases: Property division and a constructive trust

What to do when a third party has an interest in property that is part of the marital pot? The Indiana Court of Appeals dealt with this problem in Leever v. Leever.

Appellant-petitioner Lisa A. Leever appeals the trial court’s order dissolving her
marriage to appellee-respondent Doug R. Leever. Lisa argues that the trial court erred by refusing to consider certain real estate as part of the marital estate, instead placing the real estate in an equitable constructive trust in favor of Doug’s parents. Finding that the trial court properly placed the real estate in constructive trust but should have assigned the real estate a value and included it in the marital estate, we affirm in part, reverse in part, and remand with instructions to assign a value to the real estate, include it in the marital estate, and re-divide the marital estate consistent with Indiana Code section 31-15-7-5.

The Court of Appeals explains constructive trusts here:

A constructive trust is a creature of equity, devised to do justice by making
equitable remedies available against one who through fraud or other wrongful means
acquires property of another. Kalwitz v. Estate of Kalwitz, 822 N.E.2d 274, 280 (Ind. Ct. App. 2005). A constructive trust is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Id.

***
While it is well established that fraud is a prerequisite to the imposition of a
constructive trust, this prerequisite is not confined to fraud as one might define it for
purposes of criminal law. Zoeller v. E. Chicago Second Century, Inc., 904 N.E.2d 213,
221 (Ind. 2009). Rather, the remedy is available where there is standard fraud or a breach of duty arising out of a confidential or fiduciary relationship. Id. The duty to convey the property may arise because the property was acquired through fraud, duress, undue influence or mistake, or through a breach of a fiduciary duty or the wrongful disposition of another’s property. Kalwitz, 822 N.E.2d at 280. The basis of the constructive trust is the unjust enrichment that would result if the person having the property were permitted to retain it. Id. This type of trust is more in the nature of an equitable remedy than an independent cause of action. Id.

Here the Court of Appeals explains why constructive trusts can be used in dividing marital property:

By imposing a constructive trust, the trial court implicitly found that a fiduciary or
confidential relationship existed between Doug’s parents and Doug and Lisa. A
confidential or fiduciary relationship exists when confidence is reposed by one party in another with resulting superiority and influence exercised by the other. Kalwitz, 822 N.E.2d at 281. In Indiana, certain legal and domestic relationships raise a presumption of trust and confidence as to the subordinate party on the one side and a corresponding influence as to the dominant party on the other side. Meyer v. Wright, 854 N.E.2d 57, 60 (Ind. Ct. App. 2006). These relationships include that of attorney and client, guardian and ward, principal and agent, pastor and parishioner, husband and wife, and, as in this case, parent and child. Id. Here, the existence of a confidential relationship is self-evident because Verna and Don trusted Doug and Lisa with the ownership of their home while Verna and Don were still living in the residence.

What to take away from all this? Putting marital property in another person's name does not mean that it will escape the divorce court.

Pending Indiana Legislation - Child Support Duty to End at 19

2/22/10 Update: A correction here, the Bill did not pass out of committee and so it died. I leaving this post up because of the interesting comments.

The Indiana House has a bill ending child support at 19 instead of 21. The abstract seems a radical change:

"Duty to support a child. Provides that the duty to support a child ceases when the child becomes 19 years of age. (Current law provides that the duty to support a child ceases when the child becomes 21 years of age.)"

Actually. the statute only changes the age of 21 to 19 while retaining the obligation to provide for education when there is an order for educational benefits. Rather nice to see the General Assembly make a surgical change change to a statute than a complete overhaul (and leaving us to deal with the overhaul's unintended consequences).

This probably is an overdue change. I do not know how many clients have been surprised (more often unpleasantly) that child support does not end at age 18. Maybe worse, I cannot provide an explanation of why support continues to 21. (I have always assumed the reason being that educational benefits came in after the statute establishing child support ended at 21, and the intent was to support children going to post-secondary schools.)

Thoughts on Legal Separation

I suggest my articles here on Indiana's legal separation law, but I think Ending or Renewing a Marriage with a Separation from Divorce Attorney's Office hits on a point I have not covered - the strategy of legal separation.

When deciding upon a separation, both partners should decide what the separation in the marriage will accomplish. If there are issues such as money problems or issues of fidelity, both partners need to decide what they will do during the separation to fix the problems that are affecting the relationship to prevent a divorce . Reconcilation after a separation is only possible if both spouses are willing to do the necessary work to fix the marriage. There are a number of people that view a separation as a period where the marriage can be mended or as a period where other personal relationships can be explored. A problem develops when both spouses are not on the same page about the purpose of the separation and this is something that needs to be discussed prior to the beginning of the separation.

It may be the scarcity of legal separation filings comes from the parties realizing that the marriage cannot be saved.

Indiana Relocation and Modification of Custody Factors

We now have two different panels of the Indiana Court of Appeals agreeing that a trial court must consider the child custody modification criteria listed under the relocation statutes (Indiana Code 31-17-2.2-1 through -6) as well those under the child custody statute when dealing with a relocation/modification case.

Wolljung v. Sidell, 891 NE 2d 1109, 1113 (Ind.App. 2008) sets out the issue like this:

In relocation cases, there is an interplay between the custodial modification statute, Indiana Code Section 31-17-2-21, and the relocation statutes, Indiana Code 31-17-2.2-1 through -6. See Baxendale, 878 N.E.2d at 1256-57. While there is some overlap between the two statutes, both are in play and must be considered. Id. at 1257. Given the specific command of the legislature as stated in the relocation statute, the trial court is required to take into account all of the factors under Section 31-17-2.2-1(b). The court cannot do so without such evidence in the record. Thus, the parent seeking to modify a custody order due to the other parent's relocation must present evidence on each of the statutory factors. It does not appear from the record of the hearing or the order that the parties or the trial court addressed each of the factors listed in Indiana Code Section 31-17-2.2-1(b), at the hearing on Father's motion to modify custody.

The second case being IN THE MATTER OF PATERNITY OF JJ puts the matter this way:

Citing Baxendale and Wolljung v. Sidell, 891 N.E.2d 1109 (Ind. Ct. App. 2008), Mother argues that the trial court committed reversible error by failing to consider all the enumerated factors in the relocation statute. When a motion to modify custody is filed in response to a notice of intent to relocate, the trial court is required to consider the factors listed in Indiana Code section 31-17-2.2-1(b). Wolljung, 891 N.E.2d at 1112.

****
Noting the interplay between the custodial modification statute and the relocation statutes, and the specific command of the General Assembly as stated in the relocation statute, our court concluded that the trial court is required to consider the enumerated factors listed in section 31-17-2.2-1(b), and the court cannot do so without such evidence in the record. Id. Therefore, "the parent seeking to modify a custody order due to the other parent's relocation must present evidence on each of the statutory factors." Id. Because the record in Wolljung did not demonstrate that the parties or trial court fully considered or took into account the requisite statutory factors, we remanded the case to the trial court with instructions to conduct another hearing on Father's motion to modify custody and to hear evidence on each of the statutory factors. Id.

We are compelled to reach the same result in the case before us. First, we observe that the trial court's order does not lead us to the conclusion that the court considered each factor listed in section 31-17-2.2-1(b). As Mother notes in her brief, the trial court's order does not address the hardship and expense involved for Father to exercise parenting time, the feasibility of preserving the relationship between Father and J.J. through suitable parenting time, the financial circumstances of the parties, and whether Mother has engaged in a pattern of conduct to either promote or thwart Father's contact with J.J. See Br. of Appellant at 17; Appellant's App. pp.4-5.

(Curiously, the Google Scholar version lacks a West citation but the slip opinion shows that case is For Publication).

Indiana Code Section 31-17-2-8 reads as follows:

IC 31-17-2-8
Custody order
Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.

Following Up On The Court Records Posts

Alexandria goes live on new statewide case database from The Anderson Herald Bulletin might best describe the mess of our courts (although there are serious differences between a town court and the courts hearing family law cases) even better than what was discussed in Court Files, Court Records and Getting Them and A Guest Post Following up on My Court Records Post.

The new Odyssey Case Management System has been introduced in 13 counties in Indiana, with the idea that it will link court records across the state.

“It was the goal of the court to have one statewide system so judges could see what was happening in other courts,” said Mary DePrez, director and counsel for trial court technology at the Indiana Supreme Court’s Judicial Technology and Automation Committee.

Although the database is geared toward trial courts, the committee has a Department of Justice grant that allows it to extend Odyssey to city courts whose systems are extremely old.

Also The Muncie Star Press reports 2 more counties join Indiana state courts network:

INDIANAPOLIS — Courts in Blackford and Huntington counties are now among 50 Indiana courts using the state Supreme Court's electronic case management system.

Information in the Odyssey system is available over the Internet at no cost.

Odyssey was installed in 10 Indiana courts on a pilot basis in December 2007 and now operates in 18 counties. These courts comprise 22 percent of all the new cases filed in Indiana.

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Allen County is scheduled to begin using Odyssey later this year.

Pending Indiana Legislation - Grandparent and Great-Grandparent Visitation

The Indiana General Assembly has finally recognized that we now have great-grandparents young enough (or even still living) to be involved with their great-grandchildren.

House Bill 1055:

"Grandparent and great-grandparent visitation. Allows great-grandparents to seek visitation rights with their great-grandchildren in certain circumstances. Allows a grandparent or great- grandparent to seek visitation if the grandparent or great-grandparent has had meaningful contact with the child but, as a result of an estrangement between the parent of the child and the grandparent or great-grandparent, the parent of the child terminated the child's visits with the grandparent or great-grandparent. Establishes factors for the court to consider in determining whether granting a grandparent or great-grandparent visitation rights is in the best interests of the child. Provides that a court may order a party to an action for grandparent or great-grandparent visitation to pay a reasonable amount for the cost to the other party of maintaining or defending the action, including costs for attorney's fees and mediation. Specifies that certain agencies are not required to pay costs. Makes conforming changes."

Reading the statute, I can only describe what is being thought of here consists of only adding great-grandparent to the existing grandparent's visitation statute. From its structure, I do not see that prior case law shall be greatly affected - even with the addition of best interest factors - since we will still need to deal with Troxell v. Washington. (But what of a case where grandparents and great-parents both - all? - have visitation rights and no one can agree on scheduling? Well, that is how judges earn their salaries.)

Dallas Court Goes Paperless - Hello, Indiana?

I do not often post on criminal matters but DFW Texas News on Twitter's Dallas County criminal court records go paperless caught my eye.

The federal courts have been doing this for several years now. I will admit to some gripes about that system but people this will come to pass some day.

Anyone have any thoughts?

New from the Indiana General Assembly - Paternity Affidavits

The Indiana Senate and House both bills dealing with paternity affidavits. I quote from the General Assembly's abstracts of the Bills but I recommend reading the actual language of each Bill. I have written about the Senate Bill here. The Senate will have a hearing tomorrow at 10:30 am and it may be webcast.

A thought came to me tonight about the Indiana Senate's Bill - it presumes that all men in a paternity situation have a relationship where they want joint custody. I noticed in the past few years where the parties in paternity cases do have a relationship that is far less tenuous than when I started practicing law. On the other hand, would a father appear at the hospital who has not an interest in the child?

While the Senate's Bill seems more concerned with creating a joint custody presumption than dealing with what I see as the real problem of paternity affidavits - fraud. The House's Bill does address fraud but in a rather strange way:

"Paternity affidavits. Provides that a paternity affidavit executed before or after the birth of a child who is born out of wedlock must include: (1) a statement by the mother that the person she has named as the father of the child is the only person who could possibly be the father and that she understands that she has committed fraud if a man other than the named man is the biological father; (2) a statement by the person named as the father that he has reviewed the mother's statements and that he understands that the paternity affidavit may not be rescinded more than 60 days after the paternity affidavit is executed; and (3) a sworn statement that includes an affirmation under the penalties of perjury that the representations in the paternity affidavit are true."

The proposed law places a criminal penalty on the woman but no method for the man to set aside the paternity affidavit based upon her fraud. Current case law makes the whole procedure of setting aside a paternity affidavit tricky. Give a look at my Paternity: New Case on Setting Aside Paternity and Want to Set Aside a Paternity Affidavit in Grant County, Indiana? for a taste of the problems. I might be more impressed if the Indiana House specifically allowed for a procedure to disestablish paternity.

Prenuptial Agreements - Why They Need Considering

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I agree wholeheartedly with the sentiment of

Wedding Planning and the Prenuptial Agreement: Prenup Considerations Every Bride and Groom Should Know even if I quibble with some of the details:

Courts don’t make allowances for sentimental value, so if a bride wishes to keep her great-grandma’s quilt after a divorce, that treasured quilt needs to be protected from the community assets of the marriage. The same would apply to the groom’s cherished Stratocaster guitar or to a multitude of other personal belongings that are valuable or likely to appreciate in value during the marriage.

The Los Angeles Times published Love me, love my credit score:

Passion often blinds sweethearts to the fact that matrimony is, at bottom, a contract. Figuring out how that partnership can prosper is critical for a successful union. Yet financial differences rank among the greatest sources of marital misery, in part because talking about money before you tie the knot makes many couples uncomfortable.

Some worry that prying into each other's finances might indicate a lack of trust, or that a prenuptial agreement is a self-fulfilling prophecy for splitting up.

In fact, experts say, just the opposite is true. Spouses who find themselves bickering about finances early in their marriage could well end up hashing out the same issues in divorce court, according to Tina Tessina, a licensed psychotherapist and author of "Money, Sex & Kids: Stop Fighting About the Three Things That Can Ruin Your Marriage."

And then there is Prenuptial agreements and marital trusts are unromantic, but important from The Palm Beach Daily News:

"Ask a 20-something about-to-be bride what she thinks of prenuptial agreements and you'll probably hear how unromantic she believes they are. Her betrothed is likely to agree. After all, most first-timers walking down that matrimonial aisle are usually so consumed with love and adoration for one another that they're unable to see much beyond their future plans, hopes and dreams. You can thank love for that.

Ask a 70-year-old blushing bride what she thinks about prenuptial agreements, and she'll tell you they're a necessity. Understanding marriage is as much of a business relationship as anything else, her betrothed will no doubt agree. You can thank love for that, too.

Love, it turns out, is as complicated as a marriage no matter what age or stage in life Cupid's arrow pierces someone's heart. On one hand it's a huge turn-on — a chemically enhanced one at that. On the other, it can take those joined together on a path of twists and turns that is fraught with as much pain as pleasure."

Related articles by Zemanta

• Popping the Question? Ask for a Prenup (youngmoney.com)

News on Child Support Collection and Indiana Casinos

This in from today's The Indianapolis Star:

A bill that would force casinos to screen jackpot winners for parents who owe child support faces a key hurdle in the Statehouse today.

Senate Bill 163 will get a hearing in the House Public Policy Committee. If it becomes law, it could help recoup some of the $2 billion in child support owed here and boost Indiana's lagging record of collecting it.

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The Indiana Casino Association is fighting the measure. It says checking names adds red tape and wastes time at the payout desk. Some argue that the casino industry, which is privately run, shouldn't be forced to comply with the mandate.

Indiana ranked 41st among states in the percentage of child support it collected, according to 2008 figures from the federal Office of Child Support Enforcement, the most recent available. Pennsylvania was first, with a 79 percent collection rate.

Not sure if that includes what comes through the County Clerks and private actions, or not.

Bray said pilot projects in other states show that catching debtors at the counter can increase child support collections significantly. He said Colorado collected more than $600,000 in gambling winnings in the first year after a 2008 law took effect there.

The bill also would require children involved in custody cases to be covered by health insurance, a decision federal law leaves up to individual states.

Will have to see the language for the health insurance coverage. And I will refrain from any comments about the federal government pushing this off onto parents while they cannot pass health care reform.

Fee Agreements - What Applies In New York and Indiana

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Divorce Saloon published Retainer agreements and your divorce: A primer. Some applies directly to Indiana,

In New York and most other if not all other states in the Union, a retainer agreement in matrimonial actions is a requirement. Failure to execute one and provide a client with a Statement of Clients Rights and Responsibilities could preclude an attorney from getting paid one dime in the divorce action. It is a very serious infraction. As a matter of fact, here in New York, an attorney is required to file the retainer agreement with the court along with the client’s statement of Net Worth at the very beginning of the case, so that the court can assess whether or not the attorney’s fees and terms comply with state law and mandates.

It doesn’t matter if the divorce is contested or uncontested. An attorney is required to have a retainer agreement for ANY matrimonial action that he or she handles because guess what? A lot of uncontested divorces, so called uncontested divorces, actually turn out to be contested. And the attorney is required to have the terms of such an eventuality spelled out for the client at the beginning of the case or risk not getting paid if the thing turns ugly.

Okay, New York is a whole lot tougher than Indiana. Our fee agreements are definitely not filed with the court (which makes me wonder if the New York fee agreements are then open to the public - and therefore other lawyers. Indiana lawyers really have no idea what everyone else is charging until and unless we ask the court for payment of fees by the other side.)

Indiana's Rule of Professional Conduct 1.5 applies to our fee agreements. The main parts dealing with family law matters are these:

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a dissolution or upon the amount of maintenance, support, or property settlement, or obtaining custody of a child; or

(2) a contingent fee for representing a defendant in a criminal case.

This provision does not preclude a contract for a contingent fee for legal representation in a domestic relations post-judgment collection action, provided the attorney clearly advises his or her client in writing of the alternative measures available for the collection of such debt and, in all other particulars, complies with Prof.Cond.R. 1.5(c).

Back to Divorce Saloon's article, and its listing of what should be in the fee agreement:

1. Names and addresses of the attorney and client.

2. The hourly fee/rate

3. Amount of any advance retainer and what it covers.

4. Whether the agreement covers appeals, family court proceedings or any other proceedings in addition to the divorce action.

5. the right of the client to fire the attorney at any time or to seek other counsel at any time.

6. Whether the attorney would require an additional retainer for trial or not.

7. Frequency of itemized billing.

8.under what circumstances the lawyer may seek to withdraw from the case and the attorney’s right to seek a charging lien.

9. Client’s right to be kept abreast of the case and receive correspondences if requested.

10. all other pertinent terms and conditions.

Frankly, I would think 1 -7 would not need much explaining to the general public. Everybody wants to know what will be the cost and what they are paying for. Eight and Nine, I spell out in my fee contracts because most clients doe not seem to understand that lawyers are supposed to communicate with them (see Indiana's Rule of Professional Conduct 1.4) or that we can withdraw from a case (see Indiana's Rule of Professional Conduct 1.16). But I got to say that I am not sure what comes under the heading of "ll other pertinent terms and conditions," and it probably does leave the general public scratching their heads.

So far, I have published on Scribed my fee agreement for visitation cases, child support cases, and for uncontested divorces. Between sick kids, work and an attack of bronchitis, I have not finished with revising all of my fee agreements. Keep checking my documents at Scribd as that is where I will be posting them.