Family Law

Legal or physical custody is modifiable any time the court finds a substantial and continuing change of circumstances exists such that the modification of custody is in the child(ren)’s best interest. In determining whether such a change exists the court considers only facts subsequent to the most recent court order on legal and physical custody. 

When reviewing physical custody, a court considers the following factors: 

• The age and sex of the child;
• The wishes of the child’s parent or parents; and
• The wishes of the child, (with more consideration given to their wishes if the child is at least 14);
• The child’s interaction and interrelationship with the child’s parent or parent; the child’s sibling; and any other person who may significantly affect the child’s best interests;
• The child’s adjustment to the home, school, and community;
• The mental and physical health of all individuals involved;
• Evidence of a patterns of domestic or family violence by either parent; and
• Evidence that the child has been cared for by a de facto custodian. 

In addition to the factors referenced above, when reviewing legal custody, a court considers the following factors: 

• The fitness and suitability of each of the persons awarded joint custody;
• Whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child’s welfare;
• Whether the child has established a close and beneficial relationship with both of the persons awarded joint custody; and they live close to one another and plan to live close to each other; and
• The nature of the physical and emotional environment in the home of each of the persons awarded joint custody.

Parenting time is modifiable any time the court finds a that the modification of parenting time is in the child(ren)’s best interest. The burden of proof to modify parenting time is less than that required to modify custody. In determining whether such a change exists the court considers only facts subsequent to the most recent court order on parenting time. 

When reviewing a parenting time, a court considers the following factors: 

• The age and sex of the child;
• The wishes of the child’s parent or parents; and
• The wishes of the child, (with more consideration given to their wishes if the child is at least 14);
• The child’s interaction and interrelationship with the child’s parent or parent; the child’s sibling; and any other person who may significantly affect the child’s best interests;
• The child’s adjustment to the home, school, and community;
• The mental and physical health of all individuals involved;
• Evidence of a patterns of domestic or family violence by either parent; and
• Evidence that the child has been cared for by a de facto custodian.

Indiana follows the income shares model for computation of child support such that the weekly obligation is a product of the parent’s incomes and other child-related expense credits (insurance premiums and work-related childcare, etc.) If one or more of these factors change, a child support modification may be warranted. Indiana law provides that a child support order is modifiable as follows: (1) a substantial and continuing change of circumstances has occurred since the date of the most recent support order or (2) if a modification of child support to reflect the current circumstances of the parties would result in a 20% increase or decrease of the weekly child support obligation and it has been 1 year or more since the most recent child support order. The most common bases for child support modifications include, but are not limited to: loss of employment, change of employment or position, change to insurance or childcare costs, emancipation of a child, or a modification of parenting time overnights. 

Child support modifications can have greater complexity when they involve self-employed individuals, multiple sources of income from one party, high income earners with higher tax obligations, or situations which may call for inquiries into imputation of income. 

The most common alternative form of dispute resolution is mediation.  In mediation, the mediator, a trained 3rd party neutral, assists the parties in the resolution of their case in a civil manner in hopes of resolving all issues by agreement without the need to proceed to hearing. Unlike a judicial officer, a mediator cannot impose a decision on the parties if none is reached. 

The primary benefits of reaching a mediated settlement agreement are maintaining control and structure over the final terms of your settlement. The same cannot be true when issues are litigated and a judicial officer is the ultimate arbiter. Research has shown that parties are more inclined to abide by the terms of their mediated agreements as compared to court imposed orders which results in fewer modifications or contempt proceedings. 

The Mediation process is often required by local trial rules or a court order prior to any final hearing. Marion County requires the same in all divorce proceedings and Hamilton County presumes the same will occur absent good cause. 

An alternative to the traditional adversarial model of litigation a divorce has recently developed and is taking hold in Indiana.  The Collaborative Law Practice assists couples seeking a more respectful alternative to the traditional divorce process.  Lawyers, mental health professionals, and financial consultants trained in the Collaborative Law process assist the parties in the resolution of their case in a cooperative manner.  

The Collaborative Law process is based upon three principles:

1. A pledge not to go to court;
2. An honest exchange of information by both spouses; and
3. A solution that takes into account the highest priorities of both spouses and their children.

The parties, their lawyers, and the other professionals involved work as a team to find constructive solutions to the issues that come with a divorce.  The goal of the Collaborative Law process is to protect the interests of the children, help the spouses move forward, and attain a workable settlement through a mutual agreement of the parties.

most common alternative form of dispute resolution is mediation.  In mediation, the mediator, a trained 3rd party neutral, assists the parties in the resolution of their case in a civil manner in hopes of resolving all issues by agreement without the need to proceed to hearing. Unlike a judicial officer, a mediator cannot impose a decision on the parties if none is reached. 

The primary benefits of reaching a mediated settlement agreement are maintaining control and structure over the final terms of your settlement. The same cannot be true when issues are litigated and a judicial officer is the ultimate arbiter. Research has shown that parties are more inclined to abide by the terms of their mediated agreements as compared to court imposed orders which results in fewer modifications or contempt proceedings. 

The Mediation process is often required by local trial rules or a court order prior to any final hearing. Marion County requires the same in all divorce proceedings and Hamilton County presumes the same will occur absent good cause. 

Indiana does not, as a general rule, have “alimony” in divorce cases. In other words, ongoing payments from one spouse to another after the divorce is not awarded just because of the length of the marriage or a disparity in income. There are, however, certain situations under which a court can order spouse maintenance to be paid from one person to the other for a limited time or for a longer period. A court CAN order Spousal Maintenance if it finds that: 

• A spouse is physically or mentally incapacitated to the extent that his or her ability to support himself or herself is materially affected. In this circumstance the court can find that maintenance for the spouse is necessary during the period of incapacity, subject to further order of the court. This is generally referred to as “disability maintenance.”  
• A spouse lacks sufficient property, including marital property set over to the spouse, to provide for the spouse’s needs; and that spouse is the custodian of a child whose physical or mental incapacity requires the custodian to forgo employment. Then the court may order that maintenance is necessary in an amount and for a period of time that the court considers appropriate. 
• A spouse needs assistance to basically get on their feet by getting additional education or training. This frequently is the result of one spouse being a “stay at home” spouse who has been out of the job market during the marriage. This is generally called “rehabilitative maintenance”. The court must consider:
  • the educational level of each spouse at the time of marriage and at the time the action is commenced; 
  • whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both; 
  • the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and 
  • the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment;
• The court can find that rehabilitative maintenance is necessary in an amount and for a period of time that the court considers appropriate, but it cannot exceed three (3) years from the date of the final decree.

Indiana law provides certain protections, rights, duties, and obligations to individuals who are married, but the law is much murkier when it comes to the rights, duties, and obligations of people that live together but who are not married. Persons that cohabitate might have certain assumptions or informal agreements, but be without any kind of legal mechanism to enforce them if the relationship comes to an end.

This ambiguity and lack of enforceability can be corrected by a “cohabitation agreement.” They are also sometimes referred to as “domestic partnership agreements “.  A cohabitation agreement is similar to a prenuptial agreement, but can be entered into win the parties agree that they are not married and don’t have an expectation that they will be. 

A cohabitation agreement is essentially contract with the parties that establishes the rights, duties, and obligations that the law would not otherwise extend to them. It sets out in advance if and how the couple will divide property, how they will handle payments of obligations and debts, and can help them to have clarity with respect to the financial relationship between them both during the relationship and if it comes to an end. Even the process of drafting an agreement can help the parties address financial matters that they might never have discussed or that they incorrectly assumed they both understand. These agreements are enforceable just like any other contract if they are properly prepared and entered into the same formalities as any other contract.

Prenuptial agreements, also called antenuptial agreements, are legal contracts entered into prior to marriage which attempt to settle the interest each spouse has in property of the other or in joint property, both during the marriage and upon its termination by death or divorce. These agreements are to be construed according to the general principles of contract law; accordingly, a court must apply the provisions of prenuptial agreements according to their plain and ordinary meaning. 

Prenuptial agreements are widely misunderstood to have only one application: to determine various property rights between spouses in the event that a marriage is later dissolved. It is true that this is an important role of most prenuptial agreements, however, prenuptial agreements can apply to other scenarios as well, which may or may not relate to divorce. For example, prenuptial agreements can determine issues of spousal maintenance or payment of legal fees in the event of divorce. A prenuptial agreement can also apply to situations that do not pertain to divorce at all. For example, many people do not know that, under Indiana law, in the event of your death, your spouse is entitled to a certain percentage of your estate, even if your Will directs that all of your property should be given to a third party. However, a prenuptial agreement can include a waiver of each party’s “right to take against the Will,” thereby increasing your estate planning flexibility. (Keep in mind, such a waiver in a prenuptial agreement does not mean that you must disinherit your spouse, it simply broadens your option of leaving your spouse with all of your property, none of your property, or anywhere in between.)

Just as a normal contract, a prenuptial agreement is subject to defenses of fraud, duress, misrepresentation, unconscionability, etc.

A postnuptial agreement, sometimes called a ‘reconciliation agreement”, it’s similar to a prenuptial agreement, but instead of occurring prior to the marriage, is entered into during the marriage. like a prenuptial agreement, a postnuptial agreement addresses how assets and debts will be divided in the event that the marriage terminates in the future. It can specify things like whether either party either spouse will receive maintenance payments from the other, even if the court couldn’t order it, or how specific assets, like houses, retirement accounts, and inheritance as will be handled if the marriage comes to an end.

Often times a post nuptial agreement is entered into to reconcile a marriage which may have ended in divorce without it. Indiana no longer requires that one of the individuals file for divorce before the post nuptial agreement can be affective as Indiana law used to provide.