Same Sex Divorce in Indiana

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.

Help for Parents in Dealing with Child Protective Services

By Andrew J Thompson, Esq.

Is the following something you can relate to: you’ve been through a bitter divorce or paternity battle, all the while doing whatever you can to be the best parent you can be.  But the other parent, out of fear, anger, or for some other reason, has reported you to child protective services, and now they are investigating you as a parent.  What did you do?

In many cases, there are very good reasons for CPS’ involvement, to the point of terminating the rights of parents who leave children, without heat or food in their home, inadequate shelter from the elements, or outright physical or emotional abuse, e.g. harsh, physical punishment with extreme objects of force.

But that isn’t your situation.  Instead, you have found yourself on the wrong side of a custody battle, with a now-estranged judge, who is behaving punitively toward you, even though nothing, not even what is reported to CPS, fits the model of abuse or neglect in parenting.  So why are they investigating you?

I have seen many, many instances when a parent has been investigated by child services, and had some or all rights stripped from them, even though that parent is the one person who takes a child’s best interests to heart to the greatest extent possible.  How can this happen?

Consider the following, a single father, with no girlfriend, roommate, or significant other, has his children at home with him on alternating weekends.   His two year son goes back to his mother’s on Sunday evening with a small cut over his left eye.  The father tells the mother exactly what happened – the boys’ five year old sister came to the father and told him the boy was playing in

This is a very difficult situation. You need to be diligent and persistent about pursuing, restoring and protecting your rights.

You have recourse anywhere in the United States because the Constitution respects your rights as a parent above the authority of the state.  Don’t minimize the ultimate importance of this protection. Practically speaking, however, enforcing your rights can be very time consuming, expensive and difficult.  The state has a great deal of power and resources, and generally, once you’re in the CPS system, you are treated with suspicion.

You need to be patient, persistent and forthright in asserting your rights and your will as the parent – more interested in the care of your children than any agency can be.

Regardless of your sex, a good resource may be: http://www.familylawandfathers.com which addresses issues relating to parent’s rights in much detail.  Depending on your finances, it’s possible, though harder than ever, you may be entitled to pro bono representation via your local legal services organization, but the truth is you will receive limited service on a pro bono basis.  If you’re looking for sound, experienced representation, contact the team at the Thompson Law Office, by calling Andrew Thompson at (317) 604-1276, or by email at ajt@thompsonlaw-in.com.  We do offer sliding scale fee rates for individuals with limited resources as well – but don’t kid yourself!   You need to be prepared for a time consuming and expensive battle that comes down to the protection of your rights and of your children.

Hanging in there as a parent to your kids is so important! I wish you well.

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.

Charges of Child Molestation, Domestic Violence and Battery

If you are charged with a domestic crime, or threatened with such charges, you probably feel like your life has been turned on its head. It becomes vitally important to assess your situation properly, even following the shock of allegations you would never imagine would have made about you.

Whatever it takes, support from family friends, professional support, etc., you need to remain calm. In a way, the situation will force you to do just that – it is incredibly sobering. But the emotional shock alone can cause problems for you at work, at home and just in coping with basic day to day activities.

I’m an attorney, and not a psychiatrist. But I know that if you are struggling in basic life activities, your ability to make sound decisions and act wisely with respect to your legal troubles will also be impaired. Do whatever you can to have your mind in the right place, so your attorney will be able to provide the most help he can for you.

Then it becomes very important to find the right attorney for your needs. Part of remaining calm and processing the situation wisely, is to quickly understand that is not the time for bargain hunting. You do not want to find a lawyer who will take your case at the lowest fee or for the lowest retainer. In fact, you will probably hurt yourself severely if that is how you make your decision.

I would also suggest that it is not the most experience that is necessarily the right answer for you. Experience matters for sure, but it is the right kind of experience in the right places that will help you navigate these difficult times.

In terms of the kind of experience that matters most, a kind of empathethic experience is probably first. This doesn’t have to be someone who has been charged with the same offenses, but it is someone who has experienced a similar situation, either on his own, through a family member or close companion.

Very close in importance is the experience and relationship an attorney has with the judge and the courts where your case will be heard. It cannot guaranty a positive result, and if your case can go to a jury, the relationship with the judge is far less important, but it can make a difference in many ways.

Along with finding the right attorney, you need a cogent and effective strategy for handling your case. You and your attorney form a team – and a bond on that team. You need to be clear about your goal, and have a clear understanding that the goal is achievable and how you will get to that goal.

You will always be best served to be sure you have your whole case in order as you want it to go. This is an unbearably hard thing to face. Take it on with all of the vigor and sincere determination to do the right things that it demands.

Andrew J Thompson is an attorney practicing in Indianapolis, IN. He may reached via email at: ajt@thompsonlaw-in.com or by phone at (317) 269-3422.

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