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Same Sex Divorce in Indiana

With the recent decision by the US Supreme Court that it will not hear an appeal of the 7th Circuit decision invalidating Indiana’s ban on gay marriage, same sex marriage is legal for the first time in Indiana!  While it may not bring the same joy or fanfare, same sex divorce cannot be far behind.

Of course, many interesting conversations and questions will arise relating to the rights of same sex couples if and when they decide to part the from the bounds of now legal matrimony.  So what should you keep in mind as a same sex couple when you contemplate divorce, or even as you marry and think through the what ifs and implications of a union that ends not in death, but a dissolution during life.

Property

Indiana’s concept of marital property is actually a reason some male-female couples hold off or decide not to marry.  This is true because the concept of the “marital pot” in Indiana is very broad and inclusive and, while not entirely impossible, it is very difficult to avoid having anything either partner owns or has rights in, excluded from the marital estate.

The standard applied, under Indiana law, for splitting marital property is: an equitable division with a presumption of a 50-50 split of marital assets and liabilities.  Many courts in Indiana are very careful to apply the 50-50 standard without deviation, and in fact, the Indiana Code requires that the court state reasons why a deviation is granted, if requested by either party.   While Indiana is not technically a community property state, the effect of the dissolution standard is to treat the marital estate as if it is all community property, unless reasons can be shown that such treatment would be inequitable to either party.

In effect then, this means that the party who brings more property to the marriage, inherits assets during the marriage, or whose earnings contribute the most to the marriage, is likely to be required to give up anything more than a 50% share of everything that both parties had at the time of separation, whether acquired separately or together.

To many people this feels drastically unfair.  But it can easily be avoided with the drafting of a Prenuptial Agreement, and is also generally avoided as well by a decision NOT to marry (although Indiana common law recognizes an equitable distribution among couples who have lived together for many years).

The implications for same sex couples are generally no different than for any other couple, except for how lifestyle choices may affect the accumulation of assets – which varies from couple to couple regardless of gender or orientation.  Nonetheless, suffice it to say, that if you or your mate have accumulated wealth prior to a marriage, and over many years, and decided to marry after the state recognized your union, dissolution of that marriage could result in some significant asset shifting that may never have been intended or contemplated by either party.  If there is any risk of that occurring in a detrimental way, it would be wise to consider a “Post-nuptial Agreement”, which Indiana also recognizes as long as there is consideration and the agreement is not obtained through fraudulent or coercive means.  In other words, you can protect yourself and your assets even after getting married, as long as you act in good faith.

Barring an agreement to the contrary, however, it is wise to expect a 50-50 split of all marital property in the event of a divorce.

Alimony, Maintenance and Settlement Payments

Indiana recognizes alimony in only a few extraordinary circumstances: (1) by agreement of the parties, (2) full and continuing physical disability of one of the parties, or (3) temporary incapacitation of one the parties, e.g. the need to complete a degree that has already been started in order to make up for lost time and income in the work force.  By statute, the last item is actually considered temporary maintenance, but most couples agree to treat it as alimony when the divorce.

Often if one party has earned both a high income and significantly more than the other party, their attorneys will help them craft an agreement that yields payments over a period of time to the lesser earning spouse.  In reality, this is frequently done as a property settlement to equalize the shares of the parties in the marital estate, but it is treated as alimony to allow the paying party to receive a tax deduction while the payments are being disbursed.

Custody and Parenting Time

The most difficult issues in divorce arise over custody and parenting time.  To the extent a couple does not share children, they do not have to face the challenges of custody fights, which are never easy and always costly.  In same sex separations, it can be even more painful and difficult.  Among female couples, one partner may have contributed DNA and the other may have borne the child(ren).  Biologically, the children are 100% related to the donor parent.  Yet the courts, at the county level, tend to favor the birthing mother over the other parent in such situations (under current Indiana law, she is considered the mother of the children).   With the recognition of same sex marriage, however, this will necessarily change.  The other married person will now likely have to be counted as an equal parent with the birthing mother.  Indiana law presumes that children borne during a marriage, have two parents.

Male couples face a different perspective, however. Since neither gives birth to the child, only one can be recognized as a parent, via paternity, unless both adopt the child together.  Regardless of the biological connection, then, it is wise as a male parent in a same sex marriage to formally adopt the child as early as possible in order to guaranty that your rights are going to be protected.

Conclusion

The recognition of same sex marriage brings a plethora of interesting legal issues with it in Indiana.  It’s wise to consult with a competent family law attorney to help you navigate those issues and be sure you’re protected in the ways you desire. Andrew Thompson is a licensed family law attorney in Indianapolis with 24 years experience handling challenging divorce, custody and family law issues.  If you would like a free consultation with Mr. Thompson, please contact him at (317) 604-1276 or via email at andrew@thompsonlawindiana.com today.

Remedies for Parental Alienation: Attorney Fees and Child Support

By Andrew J Thompson

Recently I’ve dealt with several cases in which the objective, outward behavior of an alienating parent comes across as anything but harmful to the relationship between the parent and child.

For example, Mom “delivers” the children to the hallway outside her apartment at the time Dad comes to pick them up for parenting time.  The children, all boys, 15, 13 and 11, all refuse to go.  Mom says, “I’m sorry, they just don’t want to go with you.”  Then she ushers them back into her apartment.

What’s wrong with this scene?  The mother’s attorney argues, “What else is she supposed to do?”

The reality is that the children couldn’t get to this point without Mom playing a significant role in the outcome.  But undoing the harm can be very challenging.  What if the children won’t go with Dad even if he picks them up after school?

The bottom line is that once parental alienation has been engaged, reversing the problem means that the alienating parent has to feel the other parents’ pain.  If her attorney says “what can Mom do?”, the first thing I have to suggest is that she pay Dad’s attorney fees for having to bring this to her attention, in a way that actually gets her attention.

The core of the truth is that what this mother has had to do that brings the children to a point where they won’t even go with their father is something very brutal – though none of it may be visible on the surface.   She has subtly, or much more aggressively, given the children reasons to feel that time with their father, or even any relationship at all, is unnecessary or serving their own interests.

Alienation of parental affection is drastic and extremely harmful to a child.  Typically the alienating parent will cite a laundry list of defects in the other parent – anger, alcohol, laziness, lack of concern and involvement, dishonesty, infidelity, sometimes even violence – as reasons for allowing their children’s relationship with the other parent to die.

But when you take children who’ve grown up and lived with parents with any or all of these factors – and stayed in their lives – they continue to love and cherish that parent, even seek their affections.  In reality, an alienating parent doesn’t need to alienate a bad parent – that parent will drift to the sidelines without any help.  The involved parent is a good parent. 

When a parent is removed from his or her role by the other parent, it takes a very strong message to change the dynamic that set the backdrop for alienation.

So to answer the other attorney’s question about “what can she do?”, the first answer to that is, well, she could pay my client’s attorney fees for having to bring this to the court’s attention.  Absent that minimal step, it’s doubtful she gets any message other than a subtle form of reinforcement, i.e. this is harder on him than it is on her.

But you or may not be able to persuade the court to take that step on a first try.  If not, you have to have secondary remedies to offer.  Realistically, only three things ultimately work:

(1) financial sanctions: awarding attorney fees and/or offsets against child support;

(2) incarceration: drastic as it seems, it becomes a necessary remedy in many, if not most cases of parental alienation, because even financial sanctions tend to fail; and

(3) change of custody: ultimately this is quite often the only change that enable the children to restore their relationship with an alienated parent.  Anything short of it, means the alienating parent remains in control, and the kids do not have the chance to get what they need from the parent who has been boxed out of their lives.

Yet in many cases, a court will not take any of these measures until it has seen that really nothing else works.  Often, courts craft remedies that only serve to reinforce the existing alienation tot he point the alienated parent cannot afford counsel and is unable to make the arguments on his own to get the court to do what truly needs done.  When that happens, parent and child(ren) both lose.  The parent is ultimately wiped off the slate from the children’s lives.

A great deal of education must be conducted by attorneys for alienated parents – and those attorneys need to understand what they are dealing with in order to accomplish that.

The wise custody attorney will explain to the court what is really going on, and explain that “band aid” types of remedies won’t stop the “internal bleeding” that is occurring in the relationship between the parent and children.  To save what it is the court intends to save, strong and meaningful remedies need to be put in place and as early as possible.

If you’re a parent, grandparent or friend facing a situation involving parental alienation, or an attorney with a difficult case needing help presenting your case to the court, please contact the Thompson Law Office today at (317) 564-4976 or via email at andrew.thompson@thompsonlawoffice.co.

The Mother’s Tale in Divorce

We do a significant amount  of work in our firm for men and fathers.  We see an inordinate number of cases where Dads and the kids are unfairly, or wrongfully alienated, and it is quite harmful to those children and really to our larger culture when this happens.

But we all see plenty of cases and frequently represent Moms as well.  Their stories are usually quite different.  The worst, and unfortunately most common, of these stories, are ones where the Moms are left caring for the kids, alone, with no help in time, and often very little help financially.  The challenge in these cases is what can she do about a co-parent who just gives up?  Sadly, the answer is often very little.

But she is entitled to support for the children, and to the father taking ownership of his share of time with the children as well.  Many times however, she may be as well off if he doesn’t participate too much, but at the same time, the father’s involvement needs to be encouraged to the extent possible.

Financial issues are very important as well.

At the Thompson Law Office, we help women and mother’s in divorce situations deal with the stresses they will face as a single person or parent.  call us today for a free, initial consultation at (317) 564-4976 or (877) 365-1776.

Common Mistakes to Avoid in Divorce, Paternity and Custody Battles

Custody and Divorce Success and Discovery: Using Private Investigators

By Andrew J Thompson

Best Interests of the Children – these words are cited in nearly every state statute relating to custody.  Most states have factors they incorporate, a bit like a report card, to ultimately determine what they believe demonstrates the children’s best interests.

Sadly, the outcome of this analysis is often more predictable in advance, than it is instructive regarding a child’s living environment.  In part, this is due to the fact that not much helpful evidence is typically obtained in a custody case – and the same is often true in divorces that do not involve custody issues.

When a court has little to go except for a general perception of the parties, you can bet it will regularly default back to theoretically tried and true formulas that it uses to decide custody and parenting time outcomes in most cases.

The typical litigant who wants to change that outcome,is likely to rely heavily on their own testimony, or that of family and friends, but that does little to sway any court’s opinion, no matter how forcefully the testimony is presented.

Third party experts’ testimony, instead, is often given great weight in the courtroom, for better or worse.  Whether these experts are therapists, whose opinions should not be treated as “expert” regardless, or independent evaluators, whose opinions are normally given tremendous weight, the magistrate or judge who hears the facts of the case is likely to reach an outcome that is directed by the opinions of the expert unless one or both parties can give the judge reasons to change his or her opinion of the facts.  And this means coming up with some evidence that cannot be ignored by the court.

A private investigator is almost a necessity if you are going to demonstrate anything that will outweigh the opinion of an appointed evaluator. An investigator is a third party who is reasonably independent and is beholden to facts and evidence first, and his clients’ wishes second.  

The kind of facts you need to uncover are facts that are hard to get to.  So you made to have ongoing investigation to confirm the evidence you need.  Often, the investigator’s best inroads are through other third parties who witness what is going on with your children regularly: neighborhoods, parents of classmates, classmates themselves, teachers, coaches, bus drivers, etc.  You need someone, and usually more than one person, that you may or do not know, who can and will collaborate what you know to be true.

The right and best way to retain an investigator is through your attorney.  This will make the investigation more directed, efficient and cost effective, and it may help you preserve attorney-client privilege regarding evidence the investigator uncovers and you need to protect.

If you’re facing a difficult custody or divorce matter, and need to find a way to change a likely outcome in your case, contact the Thompson Law Office today at (317) 564-4976, for a free, initial consultation – or email the author at ajt@thompsonlaw-in.com.

Valuing a Father’s Time with Children

By Andrew J Thompson
Thompson Law Office

Year after year, studies continue to show that chidlren fare better the more time they spend with their fathers. Yet, fewer than 30% of single fathers have sole or joint physical custody of their minor children, and the remaining 70% typically have the children in their care less than 25% of the time. This seems to utterly defy the evidence.

Why?

While it is true that there are fathers who more or less disappear from the scene, on their own, more often it is due to factors they do not control, nor desire. The other factors that weigh against a father’s time with the children include:

1) archaic, standard parenting time schedules that do not take into account individual situations;
2) the continuing favor afforded to women in custody decisions, and then also in determining the balance of parenting time;
3) the ability of mothers, as custodial parents, to manipulate situations to inhibit parenting time as awarded to a father.

These factors, often combine to push fathers to conclude that it isn’t worth the continuing fight to have time with children who act as if they do not want to be with their father at all. Unfortunately, the psychological profession, which contributes so much to the chosen patterns of parenting time schedules, has done very, very little to help fathers work through the lose-lose situations they often face.

This needs to change. Because lawyers, mediators and judges rely so heavily on the opinions of pyschology professionals, the lack of time children have with their fathers after divorce is not likely to change for the better until therapists determine to help create models for true family restoration.

It seems that men are not as easily molded into the mid- and post-treatment packages desired by the psych profession as are women and children, so they are left out to dry. Sadly, however, the ultimate suffering for the loss of connection with a father falls on the children themselves – as the studies reveal – and often, on their mother as well.

The lifetime emotiional toll of divorce and separation is enough in and of itself. It’s time for the family courts, the bar, and the surrounding professionals to work together at avoiding deeper tragedies. All that is required is for noncustodial parents to be awarded greater equality in the split of parenting time, and to see that this time is enforced as clearly and zealously as is child support.

As soon as this change is made, we will begin to see mroe cooperation in divorce and custody matters, and more emotionally healthy chidlren coming into adulthood.

What is a Deadbeat Dad Anyway?

By Andrew J Thompson, J.D.

Since the great debate over welfare reform in the mid-1990s, the phrase “deadbeat dad” has been woven into the fabric of our vernacular like one of so many generational patch-phrases holding together a pair of well-worn blue jeans.

You cannot read newspapers, watch TV, or listen to radio news for very long without encountering this phrase, and it is not likely there are many conversations in a crowded beauty salon that pass without this label being pasted on some man, who happens to have fathered the child of some woman, who is quite unhappy with this man and his actions relating to the child – or children. In May 2009 alone, there were over 60,000 google searches that included the phrase “deadbeat dad” or “deadbeat dads”.

It is difficult to find the precise origins of the phrase, but my first recollection of hearing this phrase was in the early 90’s with Newt Gingrich and Bill Clinton duking it out over whose leadership would bring about the harshest punishment against those who would bear this label. Governors in several Midwestern states, where the recession of that time had taken an enormous toll, were elected on the promise of making these men pay for their own children’s upbringing, and ending the welfare system that was so costly at the time, and so hurtful to our overall economic productivity.

An image was created of a man using food stamps to buy beer and cigarettes and never working, while living in his girlfriend’s apartment, which was paid through taxpayer funded welfare checks because she had borne children out of wedlock – with him, or perhaps another man. The welfare system was wrong and needed to be corrected. But what these women needed was a system that ended incentives for bad choices on her part as well as a father’s part, not just on his. She was just as much of a deadbeat as was he. In fact, perhpas more – as it was she who collected the welfare check – men were never allowed to do this.

One force behind welfare reform was to try to force fathers to support mothers and children instead of the government. A man who didn’t support his children was considered a deadbeat in times past – especially if he consumed liquor, stayed away from home, was unfaithful to his wife, etc. But the phrase had never before been directed at men who loved their own children more than life itself, but through no choice of their own, couldn’t be involved in their kids’ lives and/or were unable to support them financially.

This all changed with the Welfare Reform Act of 1996. Combined with the provisions of the Violence Against Women Act, and earlier impositons of the federal government relating to the enforcement of child support, such as the Bradley Amendment, which mandates that a child-support debt cannot be retroactively reduced or forgiven even if it is subsequently proven that the debtor could not have been the father.

So what is a deadbeat dad? Is that a reference to nonpayment of child support? If so, the fathers who do not owe support but do far less for their own children are exempt. Does it mean he voluntarily fails to pay that support, or does it include men that cannot pay thorugh no fault of their own? But how can anyone be sure of the difference between these? Often mothers come to court and ask a court to impute income to a man that he does nto actually have – and to order him to pay support based on the speculative income. If he can’t pay that, does that make him a deadbeat?

In my research for this article, I found in searching facebook groups and other internet communities that the most common bond, or reference to “deadbeat dads” was from women complaining of fathers who did not see their children, spend time with thme, send cards or birthday gifts, or even bother to call.

Perhaps there is an important lesson to be garnered from these perspectives. Maybe our focus has been has been too much and too long on the idea of dads as payers of support. Maybe we have neglected what is most important to both mothers and fathers regarding his relationship with his children – the time they have together. And maybe, just maybe, if the courts, the bureaucrats, the psychoanalysts, the custody evaluators, the moms, the neighbors, the preachers, teachers, the media, and all the other name callers, – everyone – maybe if everybody who comments on the state of the family, would stop and think about what is really most important to the kids too – we would realize it’s the same thing.

What it all comes down to – “in the best interests of the children” – is how much time they can spend with their Dad. And if we all do our part just to help make it possible, and not to try to make it happen , perhaps a very surprising outcome would arise – dads wouldspend time with their kids, because they could, and no one was preventing it for a change. If we did that one little thing, perhaps we would find the phrase “deadbeat dad” as common in our language as “eight track tape” – we just wouldn’t need it any more.

The Thompson Law Office provides legal service to individuals and families relating to issues of divorce, child custody, child support aand other areas with the goal of preserving family bonds between children and both parents. Attorney Andrew J Thompson writes articles and speaks to audiences on issues of reconciliation within families in high conflict situations.