When Can a Child Decide Where to Live?

One of the most frequent searches on the Internet on family law issues is the question: "At what age can the child decide where he/she will live?" As the Oregon Divorce Blog recently stated, that's a trick question. The answer is that the child can decide at age 18. When the child legally becomes an adult, the court no longer has control over the child. Until then, only the judge ultimately decides.

There are, however, several ways to have some influence.

• The child can talk to the parents about the decision. As much as I don't like involving children in these decisions, sometimes a child is mature and has a reasonable basis for a change in living arrangements. What's potentially damaging is for a parent to want a change of custody and then recruit the child to become an advocate. That should be avoided. Sometimes parents try to act like the request originated with the child, but it usually doesn't. Another bad situation is when a child works the parents against each other.

• A Social Study can be done for the court. The social worker can interview the child and evaluate the what the child has to say. The worker ultimately makes a recommendation from all the information gathered from a variety of sources.

• An attorney can be appointed to represent the child in some cases, but the attorney isn't free. The parties have to come up with the funds to pay the attorney, in addition to paying their own attorney.

• Sometimes, a court will appoint a psychologist to interview or work with a child. That gives the child an outlet, but it's not free either.

• In Tarrant County divorce or custody cases, or for visitation issues, the court will often order Access Facilitation. That is a pretty effective process that has the two parents meet with a social worker from the court to discuss and try to resolve custody or visitation issues. There is no cost for that service.

• The child may be permitted to visit with the judge in chambers and discuss the situation without the parents and attorneys being present, but the judge will always make the ultimate decision. Children are sometimes disappointed with the outcome of that process. Most judges are experienced enough to detect when a child has been programmed or when a child is trying to manipulate the situation. There is no slam dunk result when a child actually gets into a one-on-one with the judge. Nevertheless, the judge can gain some valuable insight into the family if s/he visits with a child in chambers.
  

The element in common with all those approaches: it's always the judge who decides, and never the child.

There are certainly situations that arise where there is a serious conflict between parent and child, and sometimes a change of scenery is good for everyone. Parents should do their best to keep their children out of the middle, no matter what the case. Actually, the Collaborative Law process provides good, safe opportunities for parents or child to make changes. I will have a new post soon on that approach. In the meantime, feel free to visit my other blog, Texas Collaborative Law Blog.

For Those Using Free Forms From The Internet

Be careful of what you get. I have said this before but not quite as well as Wiggin & Nourie, P.A. does with its Is LegalZoom Legal?

"I think that people generally have a tendency to underestimate the work that goes into the preparation of an estate plan, it requires a great deal more than simply printing off forms. LegalZoom and other such services reinforce the opinion that estate planning may easily be accomplished by generating simple forms, but if you are considering the use of such services, you should look closely at the service provider's disclaimer. You will likely see, as in the case of LegalZoom, that the service provider is not serving as your attorney, does not review the documents you prepare for legal sufficiency and does not guarantee that the documents are correct. Preparing estate planning documents without the benefit of a legal opinion may result in unintended consequences that may be costly to correct in the future. In my experience, the vast majority of clients engage in estate planning to gain a sense of reassurance that their family will be cared for after their death in the manner that the client thinks is most appropriate, to pay for documents to be prepared without receiving the benefit of legal advice may undermine the entire purpose of the planning in the first place."

While the topic of their post is estate planning, everything there applies to family law and every other area of the law.

Prenuptial Agreements Are Good For Family Businesses

If you have a family business then read the following from The Williston Herald, Family roles play a part in farm operation, succession A family death brings questions about new roles:

"To help deal with in-laws, Hanson is now a firm believer in prenuptial marriage agreements.

'It's just good business management,' he said, while admitting there are two points of view on the matter.

The first point is from the view of the in-law, who wants to know why she/he should have to sign such a document in the first place, especially if that person helps work the operation.

To address this point, Hanson said to ask the in-law to think of what the family has done to build the business.

'The only way this farm will ever be successful is if this farm stays as a unit. If this farm is divided, sold, split off, no one wins,' Hanson said.

If a prenuptial agreement is done fairly, no one ever gets upset. In talking about the reasons behind the prenuptial agreement and its overall purpose, the new family member should understand and feel he/she has been treated fairly, he said.

Hanson is also a firm believer in prenuptial agreements for anyone entering a second marriage.

'If you think children have trouble settling an estate, wait until you have stepchildren,' he said."

If you need a lawyer for a prenuptial agreement, please give me a call.

Why Estate Planning?

Give Allinotte Law Office's Do you want to deal with this now or let your family deal with it later? a read. I think the article points out a few things not usually thought of when thinking of estate planning. Both the things needing planned (such as a funeral trust) and why which I think the article sums up quite well here:

The family will be shaken by the death of a loved one. In the immediate after math, and possibly even before death, there would be decisions that would have to be made.

If you are wanting to talk about estate planning, please give my office a call.

Are You Ready To Co-Parent?

I have had a run of shared parenting issues lately. So when reading Make Smart Choices for Post-Divorce Co-Parenting Success I had those issues in mind. I am going to suggest that the following paragraphs add content and texture to the idea of shared parenting as much as splitting time. So I ask this: if you want shared parenting time, do you think you and the other parent are up to this kind of behavior?

Create routine co-parent check-ins:

The more co-parents communicate with one another about the children, the less likely for small issues to grow into major problems. Select days/times for phone, email or in-person visits. Discuss in advance visitation transfer agreements. List who’s responsible for what each day, week or month. Food, homework, curfews, health issues, allowances, school transportation, sport activities, play dates, holiday plans and more should be clearly agreed upon, when possible – or scheduled for further discussion. Once you have a clear parenting plan structured – follow it to the best of your ability. But allow for last-minute changes and special “favors” to facilitate cooperation.

Encourage your child’s co-parent relationship:

Regardless of your personal feelings about your ex, your children need a healthy connection with their other parent. Keep snide comments to yourself and don’t discuss your parenting frustrations with your children. Encourage your kids to maintain a caring, respectful relationship with their other parent. Remind them about Mom or Dad’s birthday and holiday gifts. Make time in the weekly schedule for phone calls, cards, email and letters to keep the children’s connection alive when your co-parent is at a distance. Your children will thank you when they grow up.

Be compassionate with your in-laws:

Remember that a Grandparent’s love doesn’t stop after divorce. If your children had a healthy bond with your former spouse’s extended family, don’t punish them by severing that connection. Children thrive on family attachments, holiday get-togethers and traditions they’ve come to love. Grandparents, aunts, uncles and cousins can be a great source of comfort to children during stressful times and a sense of continuity with the past. Dissolving those relationships is hurtful to both your children and the other family. Think long and hard before making such an emotionally damaging decision.

Above all, be flexible. When you allow calls from your co-parent when the kids are in your home, they will be more receptive to your calls when the tables are turned. Remember, you are still a parenting team working on behalf of your children. That commonality should enable you to overlook the thorns in your co-parenting relationship and focus on the flowering buds that are the children you are raising.

If your answer is yes, then think seriously about joint and/or shared custody.

If not and you are the one wanting shared parenting, then ask yourself why are you seeking shared parenting?

Paying Attention to the Internet and Social Media in Divorces

A few days ago, I learned of an old friend from years ago who had recently passed away. After his death, I discovered that he had a Face Book page and it was still up. It got me thinking about how social media sites seem timeless, and I wondered what normally happens after the principal dies. This may seem like a bit of a stretch for a blog about family law issues, but there is probably some overlap between probate, family law and estate planning regarding how social media sites react to death and maybe divorce. Fortunately, I was able to find a answer to my question. For an excellent review of how Face Book, MySpace, various Google accounts and Twitter operate after a person's death, take a look at the recent post by Jacqui Cheng in Law & Disorder.

I have previously written here and here and here about the increasingly prominent role of Internet postings on various social media sites that come up in divorce and other family law cases. These posts generally were cautioning people to be careful about what they write on Internet sites. (They also need to be careful about texting.)

Another possibility that I haven't seen addressed and haven't heard anything about yet is the possibility that an Internet site is a valuable asset which could be included in the property division in a divorce. There are certainly reports about blogs and web sites that become very profitable and generate large incomes. There is value in such a site, but it may be pretty difficult to put a value on it. On the other hand, something that produces thousands of dollars of income a month or year can't be ignored.

In a similar vein, social media can have value that should or could be considered in a property division. A Face Book page might have some commercial value, depending on how it is focused and managed, and a Fan Page on Face Book is specifically available for businesses. Twitter accounts, You Tube and other new media can also have commercial value. The names associated with various social media, blogs or a web site can have commercial value and can be sold, just as a web site can be sold. Licensing agreements are becoming more popular in businesses that rely on the Internet, and the agreements can have value.

People should be aware of the potential issues that will arise in divorce cases where the parties have active on-line businesses and use the social media to promote them. If you or your spouse have such a business, be sure to let your attorney know. If anyone has had a divorce where ownership or value of an Internet business was an issue, please let us know about it and how it was resolved. Just like death, divorce will not necessarily end an on-line business.

What is Mediation - And When Can It Help

With some counties pushing mediation as prerequisite to ever seeing a courtroom, I getting asked more questions about mediation and articles like What is Mediation do a good job of explaining the process. I suggest following the link and reading the whole as well as my excerpts

Divorce mediation is about you and your soon to be ex-spouse deciding your own divorce and what is best for the both of you and most importantly, your children. In mediation, you and your spouse meet with a neutral third party, the mediator, and with their help, you work through the issues you need to resolve so the two of you can end your marriage as amicably and cost effective as possible.
***
In mediation, the couple, with the help of the mediator, works out agreements on the above issues. Sometimes agreements come easy, sometimes they take time and a lot of work. When agreements are hard to reach, that is when the mediator intervenes. It is the mediators job to keep the lines of communication open, brainstorm ideas, reality test the couple, teach empathy and assist the couple in their decision making process. Mediators help keep the couple focused on the issues at hand, trying not to get them off track. When divorcing couples get off track and away from the above issues during mediation, arguing, name-calling and bad prior memories are brought up.

I do have a long-standing philosophical problem with mediation. Cases exist where no amount of persuasion will lead to a change of positions. In those cases the need exists for a person to say that this or that will be done by the parties. Those people we call judges. Therein also lies the basic difference between mediation and litigation.

I do have a criticism to make - which may describe more the difference between Indiana and Illinois rather than any error by the writer - of this paragraph:

In 2008, the average mediated case cost $3000 and was settled in 90 days. In turn, the average litigated case in the courts cost $15,000 and took 18 months to settle. Keep in mind, the litigated cases led to more spite and frustration between the divorcing couples, usually leading to a lose/lose situation for both. Not many people walk away from a litigated divorce feeling satisfied. On the other hand, couples who went through mediation felt satisfied with the agreements they had reached and both walked away feeling that they had gotten what they had wanted. Who would you rather have decide what happens with your children and assets after a divorce, you during mediation or attorneys and judges during a divorce in the courts? Who knows more about you, attorneys, judges or you? Why have people who know nothing about you tell you how you are going to live the rest of your life.

My criticisms are:

1. I know Indiana has does not have any statistics on the costs of litigation versus mediation but I cannot think that the average in Illinois greatly higher than Indiana - or what I am billing!
2. Do read this paragraph with the assumption that a lawyer can be done away with if you do mediation. Unless the parties prepare the necessary petitions and waivers, there is still the need for a lawyer.
   

Another Post On How To Avoid Litigation

Pay attention to 10 things your children will thank you for from Woolley and Co. Solicitors:

1. Keeping arguments away from them and avoid criticism of the other parent.
2. Being able to talk to the other parent about their needs (even though it may be hard sometimes)
3. Allowing them to miss the other parent and make contact when they want to, even encouraging contact when you think they might want it.
4. Recognise they have feelings which might be confusing and contradictory.
5. Ask them what they think and listen to what they say (but do not make them responsible for decisions)
6. Value them as developing people with their own friends and networks
7. Remember they can cope with different rules so long as they know what to expect in each household.
8. Be consistent about arrangements made and not letting them down
9. Be flexible to their changing needs.
10. KNOWING THEY LOVE YOU BOTH AND WANT TO BE ABLE TO EXPRESS THEIR LOVE

I am going to suggest that the parent who cannot do these 10 things ought not be thinking of joint or shared custody.

Writing the Property Settlement - Make Sure You Cover Everything

Ah, forgetting to ask all the questions worries me. The problem of the unasked question has a tendency of coming back to haunt - if not to bite. For those of you thinking of doing your own divorce (or legal separation) agreements, I give you this paragraph from WOLSHIRE v. WOLSHIRE, 905 NE 2d 1051 (Ind Court of Appeals 2009) and suggest that you think long on it:

We reach the same conclusion with regard to the trial court's division of Husband's future military retirement benefits. Generally, a spouse's military retirement benefits are a marital asset subject to division. See, e.g., Griffin v. Griffin, 872 N.E.2d 653 (Ind.Ct.App.2007). Here, however, the parties entered an agreement that made no mention of Husband's benefits. When asked about this omission during the final hearing, Wife stated, "It simply did not come up as we were putting together this agreement. It was an oversight." (Tr. p. 20). As noted above, a trial court reviewing a settlement agreement "should concern itself only with fraud, duress, and other imperfections of consent, or with manifest inequities, particularly those deriving from great disparities in bargaining power." Pond, 700 N.E.2d at 1136. A mere oversight does not rise to this level. We instruct the trial court, on remand, to remove the provision concerning Husband's military retirement benefits from the decree of dissolution.

The Unhappiness Gap

It seems that James J. Gross, in the Maryland Divorce Legal Crier, has an almost limitless supply of relevant, analytical and often encouraging comments about family relationships. Last week, he published the following suggestions that can be useful for people facing divorce or for people wanting to avoid a divorce.

"A recent study concludes that a happiness gap between spouses is a harbinger of divorce. It goes further to state that the odds of divorce increase if the wife is unhappier than the husband, because women file more divorces than men. Here are my two best tips for managing unhappiness, in marriage or divorce.

"1. Make a Grateful List. It is easy to look at the glass half full. It is human nature to always want more than we have. And your brain will keep pumping out negative thoughts as long as you dwell on what you don’t have instead of what you do have. An antidote for this is to write down all the things in your life that you are grateful for. Read this list out loud every morning.

"2. Keep a Good Things Notebook. Get a small spiral notebook. At the end of each day, write down all the good things that happened to you that day. Someone smiled at you or complimented your outfit. Keep it simple and short. Try to find at least five things a day."

I heard similar suggestions from a life coach in Texas several years ago, but I like trying out these ideas in the context of a marriage. Actually, they are probably not a magic shield that can protect you from divorce if you wait to try them out when there are serious relationship issues. If adopted and used regularly and early on, they can probably provide a lot of preventive benefit.

On the other hand, if you find yourself facing a divorce or deciding to pursue a divorce, following these suggestions should help ease your pain and assist in your emotional transition to single person. While it would obviously be helpful to the "leavee" (the one being left), a focus on the positive could certainly benefit the "leaver" (the one deciding to leave the relationship)as well. If nothing else, the emphasis on the "good" aspects of the situation should help avoid the often depressing situation of sitting around thinking about how bad the situation is.

There's not much work involved in following the suggestions. Please give them a try and then let us know if it helped.

Indiana Legal Separation Becoming a Divorce Case With a Post-Nuptial Agreement

And a good example why to hire a lawyer. Such is Beaman v. Beaman, 844 NE 2d 525 (Ind: Court of Appeals 2006).

First, the case demonstrates - to me - why few legal separation case are filed or go on for very long. Notice how easily the parties slipped from a separation case a dissolution case (and see what I wrote here).

Now about why this case explains why hiring a lawyer is a Good Idea:

At the outset, we address the tangled procedural irregularities in this case. As recited above, Eric filed the petition for dissolution in this case, Ramona filed a cross-petition two weeks later, the trial court summarily entered a dissolution decree just ten days after that without a hearing, and Eric effectively filed a motion to reconsider one week later. We conclude the trial court acted too hastily in entering the dissolution decree. Indiana Code Section 31-15-2-13 permits a trial court to enter a summary dissolution decree without a hearing "[a]t least sixty (60) days after a petition is filed in an action for dissolution of marriage" if both parties have filed a written and signed waiver of final hearing, and filed either a written settlement agreement or a statement that there are no contested issues in the case.[1]

Granted, the parties in this case had filed a purported written "waiver of final hearing" when they jointly petitioned for legal separation. However, there was no dissolution action pending at that time and, therefore, there was no dissolution hearing to be waived. Eric's subsequent petition for dissolution, which was not joined by Ramona, did not contain a written waiver of a final hearing. It does not appear that the pre-dissolution proceeding "waiver of final hearing" should necessarily have been deemed a waiver of a dissolution final hearing, especially where Eric's dissolution petition made no mention of that waiver and did not request summary dissolution.

Procedurally, the parties make a complete mess of the case - which means they increased their stress and probably did not have the outcome that they thought was coming to them.

As part of their legal separation, there was a property settlement agreement. Dealing with the property settlement agreement became the big question.

Turning to the merits, our first guidepost in this case is Pond v. Pond, 700 N.E.2d 1130 (Ind.1998). There, the Indiana Supreme Court discussed the difference between "reconciliation agreements" and "dissolution settlements." Id. 530 at 1132. The former are agreements (referred to as prenuptial, premarital, or antenuptial agreements) entered into in contemplation of marriage or its continuance and that generally must be enforced as written in the event of dissolution. Id. The latter are agreements entered into as a consequence of dissolution proceedings (post-nuptial agreements); they are governed by the Indiana Dissolution of Marriage Act ("the Act"), and their acceptance or rejection is within the trial court's discretion.[2] Id.

The Court of Appeals treated the agreement created as part of the legal separation case as a post-nuptial divorce agreement.

Our review of Pond and the record in this case leads us to the clear conclusion that the agreement between Eric and Ramona that they signed on November 24, 2004, was a post-nuptial, not antenuptial, agreement. Although no dissolution action was pending at the time, the agreement was filed contemporaneously with a request for legal separation. Additionally, although the agreement provides that the parties would not necessarily commence dissolution proceedings, there is nothing in the record to suggest that the parties entered into this agreement for purposes of maintaining their marriage. To the contrary, the agreement itself reflects that the parties had already divided up much of their personal property, including their vehicles, prior to their separation. There is nothing in the record to suggest that the parties actually attempted any reconciliation following the signing of this agreement; instead, Eric, in fact, did file a petition for dissolution just three months later. The facts here are very similar to Pond, and we reach the same conclusion: the parties' agreement is governed by the Act. As such, the trial court had the discretion, under Indiana Code Section 31-15-2-17, to accept or reject the agreement. See Pond, 700 N.E.2d at 1132.

I suggest that any legal separation agreement be written with the probability that it will become a post-nuptial agreement in a divorce.

Thinking About Custody Issues

Recently I had a long telephone call with another lawyer who is on the side of me in two different custody cases. We were discussing why my clients were opposed to a shared parenting agreement. After finally clearing out that it was not my views driving the cases but my clients, I think we agreed to two things: 1) we execute our client's goals so long as they do not put us into unethical territory, and 2) there is no good definition of joint and/or shared parenting. Otherwise, we may have agreed that those parents sharing parental duties will share custody after a divorce.

We remained pretty much divided on the issue of shared parenting - me on grounds of practicality and he on grounds of theory. Or so, I will put it.

I did not mention such things as the following from Fuchs v. Martin, 836 NE 2d 1049 (Ind Court of Appeals 2005)

Dr. Grana, who was one of the two custody evaluators in this case, testified:

So that I ended up with the feeling that not much has changed in the sense of their awareness. Their awareness that change begins with them and that they have to demonstrate a willingness to act differently. More cooperatively. More courteously with one another. And so the issue was still, you know, one of custody. And my feeling was that neither one had convinced me that they deserved the role of sole custodial parent. There was still a lot of instability and immaturity ... And I was wanting to continue with some type of liberal visitation because I think that, you know, I couldn't see a reason why both parents should not be involved with their daughter .... but I was most concerned about trying to build a structure that would help them get through the next bunch of years. And that's why I was recommending some type of mental health intervention. That seemed to me to be more important than the label of custody. So that they could have some avenue for building some type of co-parenting structure that would be effective for them. And so that's why I made a recommendation for liberal visitation. No change in custody. And try to get them involved in the mental health system.

Within that paragraph I see the points that I look at when evaluating a custody case:

1. The parents ability to cooperate and work together.
2. The maturity of both parents.
3. The stability of both parents.
4. The involvement of both parents in their children's lives.
5. What sort of co-parenting structure there is (by the way, that is a great phrase and concept)
   

Then there is also this paragraph that contains a lot of truth and states a few reasons why I think that a presumption of shared parenting is a bad idea:

(Tr. at 103.) In addition, he noted "high conflict couples will do battle with sole custody just as often as they will with joint custody," (id. at 105), and "liberal involvement still is important for [T.F.]." (Id.) He was also concerned that giving one parent sole custody would give "the sole custodial parent the belief or endors[e] their belief that the other parent is a bad parent." (Id. at 107.) In his report, he recommended "[Mother]'s residence be considered the primary residence for [T.F.]." (Exhibits, Respondent's Exhibit B at 11.) That evidence supports Findings L and DD, and portions of Finding FF.

Those that fight will fight. Presuming and/or awarding joint custody based on the idea that this will reduce conflict and free up court time is sheer laziness unless backed up by the facts of each case.

On the other hand, that second sentence highlights a problem that needs addressing by lawyers and courts. Under Indiana law, custody between parents does not require that one parent be unfit. Custody between parents is about the determining the custody that is in the best interests of the children. I am not sure how many lawyers explain that to their clients or how well. Courts will not usually take the time to make the point. Perhaps if we did, then maybe there would less fighting between joint and sole custody. It would not change the issue in my two cases mentioned above.

I will go further and say that any parent who uses any form of custody - joint, shared or sole - to bully the other parent ought not have custody of their children. Not for the sake of punishing that parent or rewarding the other parent, but because anyone using a custody proceeding to bully, to control, the other parent is not acting in their child's best interests.

Living Together & Breaking Up - Comparing Indiana With Scotland

Reading Breaking up is hard to do financially for cohabiting couples from Scotsman.com Business once again brings to mind how disadvantaged those Hoosiers who live together without getting married are compared with other places.

First of all there is no legislation in Indiana protecting the property rights of those cohabitating. Hit the link below for my archived articles on cohabitation for more details.

So everything in these three paragraphs describes a protection that unmarried Hoosiers lack:

The act provides for the sharing of household goods purchased during the period the couple lived together. However, this does not include gifts or any items that you or your partner have inherited from a third party. If a decision cannot be reached, then the law presumes that items are owned jointly by the couple, with goods shared or the value shared.

Money, securities, any car or other vehicles or pets you have are not regarded as household goods under this legislation.

Both partners are also entitled to an equal share of any money derived from any allowance made by either cohabitant for their joint household expenses and/or any property acquired out of that money."

With the General Assembly done with creating new legislation this year, there will be no statute for cohabitants this year. With the continued pushing for an anti-"gay marriage" constitutional amendment to our Indiana Bill of Rights, I suspect a serious opposition to any protection for the property of unmarried couples in Indiana. That does not mean those interested in this subject should not contact their state Representatives and Senators.

Without legislation and you want to live together, then you have three choices:

1. Get a cohabitation agreement; or
2. Plan on litigation; or
3. Eat your losses and move on down the line.
   

Military Service, Jurisdiction and A New Case from The Court of Appeals

Having discussed jurisdiction and service in Got to Have Service on the Other Side and More on Got to Have Service on the Other Side, let me bring up a recent Indiana Court of Appeals case In re: the marriage of Anthony J. Harris v. Teasha J. Harris. Thanks to a lack of personal jurisdiction, the case had to start over.

And before anyone gets overly excited, the case turns on the fact that the husband was on active military duty in Germany and wife failed to comply with the Solider and Sailor's Relief Act and so will not translate easily to a wide range of cases.

The case does bear reading for military service issues. I seem to be having an increase of cases involving service members and the case serves as a good reminder that a different set of rules apply to active duty members of the Armed Services.

The Indiana Lawyer noted the case here: Trial court didn t have personal jurisdiction over serviceman.

Case law - Marital Property Titled to Someone Else

Krstin Nicevski v. Greta Nicevski was decided last year on July 9. My apologies for the delay in writing this one up - put it down to the turmoil of last Summer and Fall. However, the case points out something important and so I am going ahead on write on the case.

The Indiana Court of Appeals opinion sets out the issue quite well:

Appellant-respondent Krstin Nicevski appeals from the decree of dissolution of his marriage to appellee-petitioner Greta Nicevski. Krstin argues that the trial court erred by including the value of a residence titled in his parents' name in the marital estate and directing him, among other things, to pay Greta $40,000, or half of the value of the residence. Finding that the trial court was without authority to include the residence in the marital estate because Krstin's parents were not joined as necessary nonparties pursuant to Indiana Trial Rule 7(B), we reverse and remand with instructions to revise the decree of dissolution consistently with this opinion.

Note that the property held by the parents is not automatically removed from the possibility of being included in the marital pot, but there was procedural and evidence problems in includingthis marital pot.

The Nicevski Court relied upon the parents' property in In re Marriage of Dall, 681 NE 2d 718 (1997) and Indiana Trial Rule 7(B). Trial Rule 7(B) reads as follows:

Motions and other papers. Unless made during a hearing or trial, or otherwise ordered by the court, an application to the court for an order shall be made by written motion. The motion shall state the grounds therefor and the relief or order sought. The requirement of notice is satisfied by service of the motion.

Vadas v. Vadas, 762 NE 2d 1234 (Ind. Supreme Court 2002) provides more on this point and about Dall:

The Court of Appeals reversed, holding that "an equitable interest in real property titled in a third-party, although claimed by one or both of the divorcing parties, should not be included in the marital estate." Id. at 722. Although the couple "may have hoped eventually to acquire legal title to 1236 the property ... they did not have a definite agreement that title would be transferred to them." Id. at 721 (distinguishing Sovern v. Sovern, 535 N.E.2d 563 (Ind.Ct. App.1989), where "the owners of record title disclaimed any interest in the real estate."). Therefore, in Dall, "neither Husband nor Wife possessed the definite interest necessary for the home to be included in the marital estate." 681 N.E.2d at 721.

The holding of Dall promotes predictability, consistency and efficiency by excluding "remote and speculative" interests from the marital estate. See 681 N.E.2d at 722. The property at issue here is just such a speculative interest. Rita's investment and James' labor increased the home's value during the marriage, but general market conditions before and after the marriage would also account for some part of the appreciation. (R. at 146-47, 279, 284.) The sale to James and Rita was to occur at some unspecified future date, contingent upon James' getting back "on his feet" financially. (R. at 144.) Neither price nor terms had been discussed, although John wanted to recover what he put into the property (unlike the record owner in Sovern, who did not claim any interest in the property in question). (R. at 147.)

If property is titled to another, is there evidence showing that the property should be included in the marital estate?

In Re Marriage of England v. England gives an idea of how to answer that question:

Husband contends that his interest in the Rumpke property is akin to those in LoebFiste that were excluded from the marital pot. He contends that his interest is completely defeasible and that he has no present interest of possessory value. We disagree. To the extent Husband's interest in the property is defeasible, he for the most part controls the defeasance. In Loeb and Fiste, the defeasance would occur because of an act over which the remaindermen had no control — death or a change in beneficiary. Here, Husband loses his interest in the property if he abandons the property, ceases to use it as his primary residence, or opposes Rumpke's plans to expand its landfill, all of which are choices Husband would make of his own accord.[1] and Husband also loses his interest if both dwellings on the property are destroyed or become uninhabitable. Although it is true, as Husband points out, that the dwellings could be destroyed by fire or weather tomorrow, it is also true that they may never be destroyed and Husband will live on the property virtually rent-free for the remainder of his life. Finally, Husband also loses his interest when he dies, but in that case, it is possible he may have enjoyed the use of the property for a nominal rent up to the time of his death. See Hacker, 659 N.E.2d at 1111 (noting that husband was "correct in asserting that there are no guarantees he will be granted continued residence [on a farm owned by his parents, but] [c]onversely, he may also be allowed to live there rent-free for the remainder of his life" and therefore, the trial court did not err in considering husband's continued use and occupancy of the farm in dividing the marital assets).

In addition to this situation being unlike Loeb and Fiste because here, Husband controls the defeasance, this case is also unlike Loeb and Fiste because those cases dealt with future interests. Here, Husband presently has a possessory interest in the property for his use and enjoyment. Husband is able to live on the property, farm the land, and cut the timber. The fact that the property is available for Husband's continued use and occupancy at a minimal yearly rent is relevant under Indiana Code section 31-15-7-5(c) as an economic circumstance of the parties and the trial court did not abuse its discretion in considering this interest in dividing the marital estate.

More on Got to Have Service on the Other Side

I have to make a comment about a recent case of mine and Indiana Trial Rule 4(E). Adding this to Got to Have Service on the Other Side seemed to make the earlier post a bit too long.

This part of Rule 4 reads as follows:

(E) Summons and Complaint Served Together--Exceptions. The summons and complaint shall be served together unless otherwise ordered by the court. When service of summons is made by publication, the complaint shall not be published. When jurisdiction over a party is dependent upon service of process by publication or by his appearance, summons and complaint shall be deemed to have been served at the end of the day of last required publication in the case of service by publication, and at the time of appearance in jurisdiction acquired by appearance. Whenever the summons and complaint are not served or published together, the summons shall contain the full, unabbreviated title of the case.

Back in January, I had an opposing attorney try to dismiss a paternity complaint on the grounds that their client had never gotten a summons. Opposing counsel would have been on much better ground but for a couple of things:

1. There had not been an emergency hearing about 10 days before;
2. That prior to the emergency hearing, his client had been handed a copy of the paternity petition; and
3. Our local rules on emergency hearings follow the rules for temporary restraining orders, and those rules had been complied
   

Opposing counsel lost his motion to dismiss. It would have been better that a summons had been issued after the emergency hearing just as it might have been a shorter argument if I had remember Trial Rule 4(A) and (E). After all, the opposing party had appeared and the court had acquired jurisdiction by virtue of her appearance.

Parenting Time - Illinois Video Visitation in Action

I mentioned Illinois' new video visitation statute in What About Electronic/Online Parenting Time in Indiana. Now from pressofAtlanticCity.com comes

Divorced parents keep in contact with their children via video phone calls that gives a pretty positive view of what is going on in Illinois.

CHICAGO - Greg Baddick helped his 9-year-old daughter learn the state capitals of the Midwest. Later, when he asked Isabella how her test went, she said she got an A-plus - although she almost forgot the answer for Nebraska.

"Congratulations," Baddick said via an Internet video link, the same way he helped her study. "I'm proud of you."

Because Baddick, a senior manager for a pharmaceutical company, is divorced from Isabella's mother, he helped his daughter study using their laptop computers and the Internet. The virtual visits are a weekly date for the pair, in addition to the in-person weekly visits and twice monthly weekend stays. Isabella lives in Elgin, Ill., Baddick in Chicago.

***

Chicago family law attorney Jeffery Leving, who said he helped write and lobby for the changes to the law, said he hopes the changes help noncustodial fathers and open up opportunities for children to be in contact with incarcerated fathers.

"The electronic visitation - primarily the cell phone and now the computer - in my opinion, is a psychological lifeline for the child," said Leving, whose firm specializes in fathers' rights.

Bruce Boyer, director of the Loyola Civitas ChildLaw Clinic, said virtual visitation has been helpful in custody cases involving parents who are great distances from each other or in cases where a parent should not have physical proximity to his or her children but would still like to visit and have a relationship.

But, he cautioned, virtual visits should not take the place of in-person interaction whenever safe and possible.

"It's a lesser alternative to face-to-face contact," Boyer said. "If you don't have a better alternative, it can be a very good way of maintaining contact."

Baddick and Isabella's mother divorced in 2003, and the father recalls the emptiness he felt when he first drove away from the family home. His daughter, he said, also remembers.

"It was horrible. It took me a while to get over it," he said. "I struggled for years and years."

But then the father and daughter adjusted, and in recent years, they discovered virtual visitation. In the Baddicks' case, the visits aren't part of an official custody agreement, but rather worked out informally between Isabella's parents.

Isabella likes the video phone.

"It's really cool that you get to talk to your dad and see him," she said.

I have written about alternate means of visiting with the children in Parenting Time - Alternate Means. Between that article and my post on Illinois mentioned above, I think I have made it clear that I think nothing Indiana law prohibits electronic/Internet visitation.

Nothing specifically endorses the idea either. Right now I think a party wanting this sort of visitation needs to specifically request the court include Internet visitation in its parenting time orders.

It is my understanding that with the Indiana Parenting Time Guidelines now being under review, it will be proposed for a specific provision similar to Illinois. I have to wonder how many people this will help (I think I still have a lot of clients who do not have Internet access and of those who do I am not sure if they have the equipment to accommodate video exchanges), and so I am asking these questions:

1. What do you think Indiana should include Internet visitation in the Parenting Guidelines?
2. Do you have the computer system to visit by video link?
3. Does the other parent have the computer system to visit by video link?
4. How many of you will be willing to acquire a computer system and/or Internet connection that will enable video links?
   

A Slightly Different Family Law Blog

A quick shout out to an Indonesian family law blog - Islamic Family Law in Indonesia. Interesting to see how a completely alien legal system operates. And how some of the topics never change - money and trying to understand just what was the legislature thinking (or if it was). Yes, it is apparent that English is not the writer's first language but that makes his exposition even more impressive to me (a good deal more understandable than an Order or two that I have seen in the past month from Indiana judges).

Thoughts on Preventing Problems Between Parents

I have not mentioned in what seems a long time how you people have the means to prevent spending unnecessary time in a courtroom. Put plainly, being a jerk results more often than not in a visit to the lawyer and probably to a courtroom.

If you want to prevent problems, read the following from The Mother of All Parenting Blogs (and you might want to check out the rest of the blog, too).

Don't assume that the problem will take care of itself once the baby is no longer a baby, the toddler is no longer a toddler, etc. You've still got a lot of years of parenting ahead of you -- and you definitely want to be on the same page of the parenting playbook by the time your kids hit the preteen or teen stage.

Try to engage your partner in a heart-to-heart discussion about the hopes and dreams that led you to want to become parents in the first place: the types of parents you want to be and the types of kids you want to raise. If you've never had this type of conversation, there's no time like the present to have it. Try to have this conversation when you're both relaxed and in a positive and upbeat mood. If you can't have this type of conversation without the conversation dissolving into an argument, consider couples therapy (so that you can work on your communication skills and resolve the outstanding issues you have as parents and as a couple).

Consider taking a parenting course together. That way, the information you're trying to discuss with your partner will be reaching your partner via a neutral third-party rather than always being filtered through you.

Share parenting materials that you've found particularly helpful. And encourage your partner to share parenting materials that express his or her ideas about parenting, too. (You don't have to agree with all the viewpoints expressed. What you're trying to do is get an understanding of what your partner is thinking and feeling about a particular issue. That's the first step to talking the issue through and finding some common ground.)

Take stock of all the things you do agree about rather than just focusing on all the things you don't. Then find ways to build on that common foundation in your lives as parents.

More importantly, ask yourself how following this advice hurts you or your children.

Remaining Family Law Legislation for This Year's General Assembly

I culled the following list from The Indiana Lawyer Capitol Watch newsletter of the remaining legislation pending in this year's General Assembly. I have not had time to double check the list or what changes exist from earlier stages of the legislative process. But I am providing links to the Bills so that you cna check them out.

Family Law
SB 140 - Various adoption matters including prohibiting a man who is barred from establishing paternity under the adoption statutes from establishing paternity by filing an action as a next friend of the child or requesting a prosecuting attorney to file a paternity action. Status: Ready for enrollment

SB 163 - Requires persons who own or operate a river boat licensed as a gambling operation or a horse racetrack licensed for gambling to withhold cash winnings of obligors for amounts they are delinquent in child support and deduct and retain an administrative fee in relation to withholding the obligor's delinquent child support. Makes other provisions. Status: Ready for enrollment

SB 178 - Provides that if a paternity affidavit is executed, the mother has primary physical custody of the child. Requires an action to establish custody or parenting time of a party who has agreed to share joint legal custody on a paternity affidavit be tried de novo. Status: Ready for enrollment

Got to Have Service on the Other Side

The Indiana Lawyer's COA rules on service of summons issues does not report on a family law case, this is subject still needing attention.

Gohl filed his motion arguing the judgment against him was void for lack of service of process. The Court of Appeals judges agreed and reversed, finding the trial court didn't have personal jurisdiction over Gohl when it rendered the default judgment against him. Colonial failed to specifically comply with T.R. 4.13 as it pertained to effecting service of process of publication against Gohl, and it didn't perform a diligent search to determine Gohl's whereabouts. The company relied on one search that turned up a B. Gohl on the opposite end of the state from what county was listed on the mortgage. The Court of Appeals remanded with instructions for the trial court to grant Gohl's motion.

The service of summons on the Elliotts didn't follow T.R. 4.1 because the sheriff who served a copy of the foreclosure action at the house didn't also send a copy by first-class mail. The appellate court didn't rule on the issue of whether it was improper because it had found in the Elliotts' favor based on other reasoning. But the judges did caution practitioners, trial courts, and law enforcement personnel to be mindful of the requirements of Trial Rule 4.1(B).

No service, then no further proceedings until there is service.

Why not? Because proceeding would violate federal and state constitutional rights. At a minimum, due process requires notice and a chance to be heard by a court.

Indiana Trial Rule 4 explains a bit more the importance of service:

(A) Jurisdiction Over Parties or Persons--In General. The court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under any other law.

This part of Trial Rule 4 sets out what the summons is to have in it:

(C) Form of summons. The summons shall contain:

(1) The name and address of the person on whom the service is to be effected;

(2) The name, street address, and telephone number of the court and the cause number assigned to the case;

(3) The title of the case as shown by the complaint, but, if there are multiple parties, the title may be shortened to include only the first named plaintiff and defendant with an appropriate indication that there are additional parties;

(4) The name, address, and telephone number of the attorney for the person seeking service;

(5) The time within which these rules require the person being served to respond, and a clear statement that in case of his failure to do so, judgment by default may be rendered against him for the relief demanded in the complaint.

The summons may also contain any additional information which will facilitate proper service.

For those interested in doing their own documents, check with your local County Clerk for forms.

Indiana has 17 rules on service (follow the links to Trial Rule 4.1(B) and Trial Rule 4.13 as mentioned above). I think that pretty much describes the importance of service.

Grandparent's Visitation - Latest Case from The Court of Appeals

Paternal grandmother files for grandparent visitation after her son kills child's mother. Father voluntarily terminates his parental rights. What happens to grandmother's visitation?

In VISITATION OF CRP v. JJP, the Indiana Court of Appeals decided that grandmother lacked any standing for grandparent visitation. No standing means no case.

Here is the Court of Appeals' reasoning:

Grandparents must have standing as prescribed under the GVA in order to seek visitation rights. Maser, 809 N.E.2d at 432 (citations omitted). The primary purpose of standing is to ensure that the party before the court has a substantive right to enforce the claim being made. In re J.D.G., 756 N.E.2d 509, 511 (Ind. Ct. App. 2001). If the grandparent lacks standing, then the petition must be dismissed as a matter of law. Id.

The GVA was enacted in derogation of the common law and must be strictly construed. In re Visitation of J.P.H., 709 N.E.2d 44, 46 (Ind. Ct. App. 1999). In construing a statute, statutes in pari materia should also be considered together to effectuate legislative intent. Horn v. Hendrickson, 824 N.E.2d 690, 698 (Ind. Ct. App. 2005); In re Visitation of J.P.H., 709 N.E.2d at 46.

***

As noted by the trial court, when read together, the statutes provide that a parent of the child's parent may seek visitation rights if the child's parent is deceased. The "child's parent" referred to in code section 31-17-5-1 is the same person as the "child's parent" referred to in code section 31-9-2-77. Therefore, the GVA confers standing only upon grandparents who are the parents of the deceased parent of the child. Here, Grandmother is not the parent of the child's deceased parent, and she does not have standing under the statute to seek visitation. The trial court did not err when it dismissed Grandmother's petition.

Another reminder that for Grandparent Visitation, there must be a strict compliance with the statute. The courts will not provide any leeway.

The Indiana Lawyer noted this case under the headline COA: Only deceased s parent can have visitation.

Islamic Prenuptial Agreements - A Case Out of Washington

The Google Alerts blurb caught my eye and I spent some time yesterday evening reading IN RE MARRIAGE OF OBAIDI.

Here are some of the facts:

Ms. Obaidi and Mr. Qayoum were married for approximately 13 months. At the time of the marriage, Ms. Obaidi was 19 and Mr. Qayoum was 26. Mr. Qayoum is a United States citizen and has lived in the United States since he was three. Ms. Obaidi is from Canada.

The parties are both children of Afghan immigrants and the couple was married according to Afghan custom. As part of these customs, the parties signed a "mahr" agreement during an engagement or Nikkah ceremony held on December 30, 2005. The Nikkah ceremony is a religious ceremony that is similar to a wedding reception at a typical Christian wedding. At some point during the Nikkah ceremony, Ms. Obaidi and Mr. Qayoum, along with a small group of family and friends, went into a smaller room. Verses from the Koran were read and Ms. Obaidi and Mr. Qayoum each swore to take the other as his or her spouse. As part of the ceremony, the parties signed the mahr.

A mahr is an agreement based on Islamic law under which a husband agrees to pay a dowry to his wife. Generally, there is a short-term portion and a long-term portion. The short-term portion is due immediately. The long-term portion is the amount that the wife is entitled to take with her in the event of a divorce. In the mahr at issue here, the short-term portion was $100 and the long-term portion was $20,000.

The Nikkah ceremony was conducted in Farsi, except when Mr. Aji-sab, who performed the ceremony, asked Mr. Qayoum if he wanted to marry Ms. Obaidi. Mr. Qayoum does not speak, read, or write Farsi. Mr. Qayoum has lived in the United States for all but two or three years of his life.He considers himself "American first." Report of Proceedings at 107. He explained that he went through the Afghan marriage process because his mother was concerned that he would lose even the small amount of cultural knowledge he had about Afghanistan.

Mr. Qayoum testified that he had never heard the word "mahr" before the day of the Nikkah ceremony. He acknowledged that he had previously attended a couple of receptions, but he stated that he was unfamiliar with the Nikkah ceremony. According to Mr. Qayoum, he was not informed of the Nikkah ceremony until 10 or 15 minutes before the event took place. At some point, Mr. Qayoum selected an uncle to act as his representative during the discussions that took place as part of the Nikkah ceremony.

Here is some of the Washington Court of Appeals' analysis:

A New Jersey case, Odatalla v. Odatalla, 355 N.J. Super. Ct. Ch. Div. 305, 309, 810 A.2d 93 (2002), provides a helpful framework for considering the application of state law to a mahr agreement. In Odatalla, the trial court ordered the specific performance of the mahr agreement. The husband appealed, arguing that review of the mahr by a state court was precluded under the doctrine of separation of church and state. The husband also argued that the agreement was not a valid contract under New Jersey law. Id.

The Odatalla court looked for guidance to Jones v. Wolf, 443 U.S. 595, 602-03, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979), which explained the "neutral principles of law" approach that allows agreements to be enforced based on neutral principles of law, not religious doctrine. In Jones, a dispute over the ownership of church property was taken to a civil court in Georgia. The court set aside the separation of church and state issues by applying the neutral principles of law doctrine. Justice Blackmun explained, "We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even when no issue of doctrinal controversy is involved." Id. at 605. In other words, the court determined that the controversy over the ownership of the property could be decided on neutral principles of law, not upon religious beliefs or policies. Id.

Based on Jones, the Odatalla court determined that the mahr did not violate the separation of church and state doctrine if the court could apply neutral principles of law to the enforce the mahr. Odatalla, 355 N.J. Super. Ct. Ch. Div. at 311. The court concluded that the mahr could be enforced by applying neutral principles of contract law. Id. at 312. Notably, the court found all the elements of a contract even though the husband argued that the mahr was too vague to apply because it did not state when the money would be due. Id. at 313. Because the court determined that the mahr was simply a contract between two consenting adults, the court concluded that the mahr was not against public policy. Id. at 314.

Here, we apply neutral principles of Washington law. However, the trial court found the wife was not abused, not unfaithful, and did not do anything to create a forfeiture of the mahr under Islamic law. The trial court also found that the husband was not unfaithful, but that he had initiated the separation without good cause.Consequently, the court erred by considering Islamic law or fault.

Applying the neutral principles of contract law, we can resolve this case by using these neutral principles of law, not Islamic beliefs or policies. We apply Washington law to resolve the issues of the formation and validity of the agreement.

And this appellate court hit on the issue that bothered me from the first paragraph of the opinion and which I think would apply here in Indiana:

The negotiations preceding the execution of the agreement were conducted in Farsi. Also, the document was written in Farsi which Mr. Qayoum does not read, write, or speak. Mr. Qayoum did not have the opportunity to consult with counsel although he was advised by his uncle, who is neither an attorney nor an expert in Islamic law, after the agreement was signed. Because Mr. Qayoum could not speak, write, or read Farsi, there was no meeting of the minds as to the terms of the mahr agreement.

Just as with any prenuptial agreement, handing the prenup to the other person just before the wedding is going to lead to an invalid agreement. But putting the agreement into a foreign language that the recipient cannot read? Not a good idea at all.

Coming Soon to An Indiana Supreme Court Near You

Way too quiet this morning. Secretary is not in and spent some time catching up on e-mail. I am beginning to think that catching up on e-mail is akin to the hamster actually getting somewhere when its runs on its wheel.

But The Indiana Lawyer Update did bring news of cases being transferred from the Indiana Court of Appeals to the Indiana Supreme Court and included this one:

Anne M. Bingley v. Charles B. Bingley, No. 02S03-1002-CV-122, the Court of Appeals ruled for the first time that post-retirement health-insurance premiums paid by a former employer aren't a marital asset subject to a division. The trial court didn't include Charles Bingley's employer-paid, post-retirement health-insurance premiums when dividing the couple's assets during the dissolution process.

Anne Bingley argued the payments fall under subsection 2 of Indiana Code Section 31-9-2-98(b), as a retirement benefit not forfeited upon the termination of employment, and cited several Indiana cases that found pension benefits to be marital assets. But the Court of Appeals ruled the premiums weren't a marital asset subject to division. The cases Anne cited involved monthly monetary payments made directly to the pension-holding spouse; Charles' benefit wasn't payable to him but was non-elective and couldn't be divided or transferred, wrote Judge Elaine Brown.

In his concurring opinion, Judge Terry Crone encouraged the Indiana General Assembly to address a perceived ambiguity in the definition of "retirement benefits" and "vested" in terms of the Internal Revenue Code.

The Mediation Channel Blog

Just found The Mediation Channel Blog on March 1 and I am intrigued by its style and its content. Not another dreary, look-alike blog for sure.

Two posts that I notice that might interest my readers were The cost of conflict: what happens when we frame divorce as combat which was cited in Zero sum game show: celebrities decide who’s right or wrong in The Marriage Ref. (And, no, I did not take the time to watch The Marriage Ref last night. I troubled my wife's patience enough watching curling.)

From The cost of conflict: what happens when we frame divorce as combat:

It made me wonder what shlep and Levine would make of a new book on divorce for women by attorney Sherri Donovan: Hit Him Where It Hurts: The Take-No-Prisoners Guide to Divorce–Alimony, Custody, Child Support, and More.

The pugilistic theme doesn’t end with the title: the book jacket is adorned with a photo of a blood-red boxing glove. Chapters include “Are You Ready to Rumble?”, “Divorce Ain’t for Sissies”, “Sizing Up Your Opponent”, “Conditioning for the Fight of Your Life”, and “Psyching Up for the Fight”.

It should leave us all asking what kind of casualties result when divorce is framed as either prizefight or combat.

Personally, I hate either/or scenarios. They do exist, sometimes they are unavoidable but the majority of either/or situations show either a lack of imagination or intellig

This comes from Zero sum game show:

Now, stepping into the marital fray is comedian Jerry Seinfeld, who will be hosting “The Marriage Ref“, a game/reality TV show in which bickering couples will submit their disputes to nonbinding arbitration before celebrity guests who will “comment, judge and decide who’s right and who’s wrong in real-life disputes between real-life spouses.”

Of course if you’d rather resolve your dispute anonymously, try the web site Sidetaker (“Let The World Decide Who’s At Fault”) and let the hive be the judge.

Useful and well written (like I wish I had thought to quote from the United States Poet Laureate), but may not be for the general public as much as other mediators. Give it a look.

News - Child Support and Casino Winnings

I reported on this Indiana legislation here. A bit of follow up here from The Anderson Herald Bulletin Indiana House backs taking deadbeat parents' winnings

The bill approved unanimously Thursday would withhold gambling winnings from parents who are behind on their child support payments. Supporters say it makes sense in a state where just 58 percent of child support payments are collected.



The withholdings would generally kick in on slot machine winnings of $1,200 or more.

The bill must return to the Senate for consideration of changes the House made.