Articles & Publications

I. INDIANA DOMESTIC RELATIONS PRACTICE

By Derrick H. Wilson and S. Frank Mattox

A. INTRODUCTION

In the recent past, Indiana has tried to take a lot of the guess work out of domestic relations practice by enacting detailed child support guidelines and establishing minimum visitation schedules. Floyd and Clark Counties, like Jefferson County, also require each party to fill out a Financial Disclosure Statement. Although Indiana has a mediation rule which covers domestic relations practice for a number of years, it is very rare for the parties to undergo formal mediation in a domestic relations case. None of the counties in southern Indiana utilize any type of commissioner practice. Once the filing fee is paid, any subsequent proceedings are addressed by the trial court judge and there are no additional fees to file a request for modification of support or the like.

B. SUBSTANTIVE DOMESTIC RELATIONS LAW

For those who occasionally practice in Indiana, or simply want to know more detailed information, a great resource is the Indiana Dissolution of Marriage and Related Laws pocketbook offered by the Family & Juvenile Law Section of the Indiana State Bar Association. Section members can purchase this book for $5.00. For information call, 317-639-5465 and ask for Libby Littlejohn. In 1997, the Indiana General Assembly repealed all of the family law sections and recodified them. Actions for dissolution are codified at I.C. 31-15-2-1 et seq . Actions for legal separations are codified in I.C. 31-15-3-1 et seq .

1. Dissolution of Marriage

At the time of the filing of the petition, at least one of the parties must be an Indiana resident for the six months immediately preceding the filing of the petition. Additionally, petitioner must have been a resident of the county for three months immediately preceding filing of the petition. I.C. 31-15-2-6. The Petition for Dissolution of Marriage must be verified and must set forth the residence of each parties, the date of the marriage, the date on which the parties separated, the name, age and address of any living child less than 21 years of age and state whether the wife is pregnant. I.C. 31-15-2-5. Additionally, the petition must set out one of the four grounds for dissolution of marriage, i.e., irretrievable breakdown, conviction of a felony by one of the parties of the marriage, impotence existing at the time of the marriage, or incurable insanity for a period of at least two years. A responsive pleading may but need not be filed to the Petition for Dissolution. I.C. 31-15-2-9. A divorce cannot be finalized less than 60 days after filing the petition. I.C. 31-15-2-10. As long as the parties file a written waiver of final hearing and a settlement agreement or a statement that there are no contested issues in the action, the parties need never physically appear in Court to resolve their dissolution. The Court has the discretion, even if the parties agree that the marriage is irretrievably broken, to order the parties to seek reconciliation through available counseling. I.C. 31-15-2-15. Separation petitions are handled generally the same way as dissolution petitions with the exception that a Court must find that conditions or circumstances of the marriage make it intolerable for both parties to live together, that the marriage should be maintained and neither party has filed for divorce in order to enter a separation decree. The Court may also grant a separation decree for a period not to exceed one year. I.C. 31-15-3-9.

2. Provisional Orders in Dissolution and Separation Actions .

Either party may ask for provisional maintenance, child support or custody. The request must be accompanied by an affidavit setting out the factual basis and the relief sought. It is very common for a dissolution petition to be accompanied by a motion for a temporary restraining order which restrains any person from transferring, encumbering, concealing, or any other way of disposing of any property except in the ordinary course of business enjoining any party from abusing, harassing or disturbing the peace of the other and granting temporary possession of property to either party. I.C. 31-15-4-3. The Court also may well exclude one party from the marital residence upon a showing that harm would otherwise result. Practice tip: Once you file a request for provisional relief, the statute states that the Court shall determine to grant or deny the petition after a hearing and not late than 21 days after the petition is filed. I.C. 31-15-4-6. Curiously, the statute provides no consideration for court docketing problems or opposing counsel's schedule. Provisional child support amounts must be paid through the clerk of the court unless the court has reasonable grounds for providing or approving other method of payment. Recently, the legislature passed provisions allowing the Court to require the parties to seek counseling for themselves or for a child on a party's motion or the Court's own motion. I.C. 31-15-4-9. The court cannot require joint counseling without the consent of both parties or if there is evidence that the other party has demonstrated a pattern of domestic violence. I.C. 31-15-4-10. As discussed elsewhere, in divorce cases, as in all other civil cases, either party may ask for a change of venue from the judge. A change of venue from the judge does not divest the court of jurisdiction to hear provisional requests. I.C. 31-15-4-11. In the past, it was typical for both parties to ask for a joint or mutual protective order or restraining order. The new statute currently states that the court cannot issue a joint or mutual protective order. If both parties allege injury, the parties must file separate motions for a protective order or restraining order and review each on its own merits. I.C. 31-15-5-11.

3. Maintenance .

The court can order maintenance in dissolution cases or legal separation cases. I.C. 31-15-7-1. In Indiana, the Court can order maintenance in only three situations:

(1) The court finds a spouse to be physically or mentally incapacitated to the extent that the ability of the incapacitated spouse to support himself or herself is materially effective, the court may find that maintenance of the spouse is necessary during the period of incapacity, subject to further order of the court.

(2) If the court finds that a spouse lacks sufficient property, including marital property apportioned the spouse, to provide for spouse's needs and the spouse is a custodian of a child whose physical or mental incapacity requires the custodian to forego employment, the court may find that maintenance is necessary to the spouse in an amount for a period of time that the court considers appropriate.

(3) After considering the educational level of each spouse, the time of marriage and the at the time the action is commenced; (a) whether an interruption in the education, training or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities or both, (b) the earning capacity of each spouse including educational background, training at employment skills, work experience and the length of the presence in or absence from the job market; and (c) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment. A court may find that rehabilitative maintenance with the spouse seeking maintenance is necessary in an amount and for a period of time that the court considers appropriate, but to exceed three years from the date of the final decree.

It is important to analyze each of these provisions because the terms and requirements under each situation are different. For example, if the spouse seeking maintenance is not mentally or physically incapacitated or is not the custodian of a disabled child, the court can only order maintenance for a maximum period of three years. Maintenance provisions can be modified, I.C. 31-15-7-3 if the maintenance is court ordered. However, a maintenance order which the parties agree to is almost always enforced absent fraud and/or undue hardship.

Maintenance can take on many different forms. Many people insist upon asking for a specific monetary amount on a monthly basis rather than asking for either spouse to pay certain marital bills on a monthly basis or do other matters which have an economic impact that are not strictly regarded as maintenance. Courts are much more likely to order a party to pay a fair share of the marital bills than to award a specific monetary amount especially if there are children involved.

4. Property Division .

Indiana adopts the approach that the Court has the discretion to divide all the property of the parties including that owned by the parties before the marriage or that acquired by inheritance gift or similar circumstance. Having said that everything was in the marital pot for property division purposes, I.C. 31-15-7-5 states that the court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by evidence showing that an equal division would not be just and reasonable. The court must consider the following factors:

(1) The contribution of each spouse the acquisition of the property;

(2) The extent to which the property is acquired by each spouse before the marriage or through inheritance or gift;

(3) The economic circumstances of each spouse at the time of the disposition of property has become effective including the desirability of awarding the family residence the right to the family residence for such periods as the court considers just the spouse having custody of any children;

(4) The conduct of the parties during the marriage as related to disposition or dissipation of their property;

(5) The earnings or earnings ability of the parties as it relates to final division of the property and a final determination of property rights of the property.

For all practical purposes, absent commingling, my experience has been that most courts will almost automatically exclude premarital assets. The court also has discretion that if there is little or no marital property, to require one spouse to pay a monetary judgment to the other spouse. According to the statute, the award may only be made for the financial contribution of one spouse towards tuition, books and laboratory fees for the higher educational of the other spouse. The statute seems to say if one spouse has dissipated the marital assets to such degree that there is little or no property available, that the court may also correct this problem by awarding education expenses.

5. Child Support .

Actions for child support are governed by I.C. 31-16-2-1 et seq . Child support is somewhat different under Indiana law than Kentucky law. Indiana has child support guidelines which are based upon weekly gross income, not monthly gross income. My experience has been that Indiana courts are much more likely to find reasons for deviations from the child support guideline. For example, a party who exercises standard visitation with the child is typically entitled to a 10% discount off the guidelines at the outset. If a parent exercises significantly more visitation, a court may order an even higher discount. Additionally, most Indiana divorce attorneys insist upon imposition of the 6% rule. The 6% rule is a major source of confusion for some people. The 6% rule refers to the principle that part of the child support order is a reflection that the custodial parent should be responsible for certain routine uninsured medical expenses. Based upon this assumption, the custodial parent is responsible for a sum representing 6% of the total child support paid by both parties in uninsured and for unreimbursed medical expenses including any applicable deductibles or co-payments. For higher income clients, this can make a substantial difference. Typically, after exhaustion of the 6% rule, uninsured medical expenses are split pro rata to income. Child support under Indiana law continues to 21 absent certain special conditions. See I.C. 31-16-6-6. Additionally, a part may be required to pay child support as well as a separate order for educational expenses. See I.C. 31-16-6-2. The case law suggests, however, that a child support order should not be duplicative of expenses covered by an educational order. It is common that the court abates any duplicative expenses covered by both types of orders. In determining whether an educational support order is warranted, the court looks at the child's aptitude and ability, the child's ability to contribute to educational expenses through work, loans and other available resources and the ability of each parent to meet these expenses. The court, if asked by a party will usually require a child to keep at least 2.0 average and carry a full course load. The child support order may also include health and hospitalization insurance. Child support may end prior to 21 if (1) the child is emancipated before 21 years of age, but any educational expense orders continue; (2) the child is incapacitated in which the case the child support continues during the incapacity or until further order of the court; (3) the child is at least 18, has not attended a secondary or post secondary school for the prior four months and is not enrolled in a secondary or post secondary school and is or is capable of supporting himself or herself through employment. In considering emancipation, the court reviews whether the child has joined the U.S. Armed Services, has married or is not under the care, control of either parent. The court may make a determination that a child is partially emancipated. For example, the child is not attending school but is only working a minimum wage job. Partial emancipation usually takes the form of a 50% reduction in support and is sometimes paid directly to the child.

Anyone doing domestic relations work in Indiana must carefully review the child support guidelines. These guidelines are very extensive and provide a world of information to deviate upwards or downwards. For example, a person who is self-employed may be entitled to deduct half of their quarterly tax payments. The guidelines also discuss the concept of under employment. The child support guideline worksheet has a couple of different provisions than that of the Kentucky worksheet. A parent is entitled to a certain deduction for subsequent children in his household. It is represented by a factor. For example, if there is one subsequent child in the household, then the factor is .935. This factor is multiplied by the person's gross income. As in Kentucky a parent is entitled to any prior child support order or duty of support for children who were born prior to the children for which the present support order is being established or modified. Child care expenses are deducted from the parties combined gross income and then added back in after determination of child support has been made. Practice tip: In analyzing a persons gross income, there are a number of different ways to take a look at it: (a) current income, i.e., within the last four months; (b) average income over the last one to three years. Consider also fringe benefits as the company car, periodic bonuses or the like. You may want to request documents from the other spouse's employer directly through a non-party request, to verify the fringe benefits income issues. You will definitely want to review child support guideline 3. Under certain circumstances, it may also be appropriate to consider the income of a parties' spouse in determining income. Several of the Indiana cases recognize the appropriateness of reviewing the non-party spouse's income if this allows the party to stay at home without a meaningful flow of income. Some cases have adjust to the appropriate even if. Even if a party is actively working and generating income if the non-party's spouse's income allows the party to defray certain expenses. It is also very common for child support orders to include a provision that when visitation occurs for a period of seven days or more with the noncustodial parent, the child support be abated by 50%. (See Child Support Guideline 6.) The child support guidelines also have certain considerations about when to award tax exemptions to the noncustodial spouse. (See Child Support Guideline 6). However, most southern Indiana judges will alternate a single tax deduction on a yearly basis and split multiple tax deductions by and between the parties as equally as possible.

6. Custody and Visitation .

In determining custody, the court looks at several factors. See I.C. 31-17-2-8. The statute states that the court shall consider all relevant factors including (1) the age and sex of the child; (2) the wishes of the child parent or parents; (3) the wishes of the child with more consideration given to the child's wishes if the child is at least 14 years of age; (4) the interaction and inter relationship with (a) the child's parent or parents, (b) the child's sibling, and (c) any other person who may significantly effect the child's best interest; (5) the child's adjustment at the child's home school and community; (6) the mental and physical health of all individuals involved; and (7) evidence of the pattern of domestic violence by either parent. The court has the discretion to interview the child in chambers to ascertain a child's wishes and may allow counsel to be present at the interview. I.C. 31-17-2-9. The court may also appoint professional evaluators and/or CASA workers to assist the court in custody determinations. The statutes establish essentially three types of custody. Sole custody, where a parent has final decision making on key issues and physical possession of the child. Joint custody, where each parent has a say in major decisions, but one parent has physical possession of the child. Shared custody, where there is joint custody and both parents have extensive visitation with the child. Shared custody, although not expressly allowed by statute, is implied under the statutory framework and some courts will order shared custody under certain circumstances. The custodial parent is entitled to determine the child's upbringing including education, health, care and religious training. I.C. 31-17-2-17. In a particularly egregious case, the Court can order that certain custody matters not be part of the public record. I.C. 31-17-2-20. Indiana has one unusual provision stating that if an individual who has been awarded custody of a child intends to move to a residence other than a residence specified in the custody order and that is outside Indiana or at least 100 miles from the individual's county of residence, the individual must file a notice of the intent to move with the clerk of the court and send a notice (preferably Certified Mail, Return Receipt Requested) to the noncustodial parent. Upon request, the court shall set the matter for hearing to review custody, visitation and support. As important as the notice provision is what the notice provision does not say. It does not specifically require that a notice be given a certain number of days prior to actually moving, but merely requires that notice be given. The case law interpreting this section clearly requires non-custodial parent to show all the evidence required of any other modification of custody proceeding. The fact is that a move by itself, will almost never be enough to cause a change in custody. Under Indiana law, the court may not modify a child custody order unless the modification is in the best interest of the child and there is a substantial change in one of the factors which the court must consider in establishing initial custody.

Indiana has established the minimum access guidelines which serve as a framework for non-custodial visitation in the absence of a court order or an agreement to the contrary. The guidelines establish a great amount of specificity in determining who gets the child for various holidays, vacation periods and the like. A copy of the Clark and Floyd MAG is attached. By statute, custody proceedings must receive priority in being set for hearing. I.C. 31-17-2-6.

7. Grandparent Visitation Rights .

Indiana has statutory grandparent visitation rights. The grandparent seeking such rights may petition the court for visitation if the child's parent is deceased or the child is born out of wedlock or the marriage of the child's parents has been dissolved. I.C. 31-17-5-1. The court may not grant visitation to a paternal grandparent of the child born out of wedlock unless paternity has been established. I.C. 31-17-5-1. Grandparent visitation rights, once established, survive the establishment of paternity of the child and adoption of the child by a step-parent or biological relative. I.C. 31-17-5-8, I.C. 31-17-5-9. The standard for granting grandparent's visitation is the best interest of the child. I.C. 31-17-5-2(a). The statutory framework does not provide any guidelines as to a visitation schedule if the court deems grandparent visitation to be appropriate. The court is required to look at the totality of the circumstances and analyze the child's relationship with the grandparents as well as the parent's relationship with the grandparents. In re Walker , 665 N.E.2d 586 (Ind. 1996). While the relationship between the grandparent and the grandchild is a starting point of the court's analysis, it is not the end point in the trial court's best interest analysis. Id . at 588. See also , Daugherty v. Ritter , 652 N.E.2d 502 (Ind. 1995) affirming Daugherty v. Ritter , 646 N.E.2d 66. The trial court denied petition for grandparent visitation based upon extensive family conflict. However, most southern Indiana judges will not order more than one specified visit per month and usually make the grandparent visitation essentially derivative of their own child's visitation.

8. Local Procedural Matters .

The local rules of Clark and Floyd County provide a number of items which must be included in various pleadings. Any time a new action is filed, regardless if it is a divorce or not, a party must file an appearance with the court giving name, address, office number, etc. and whether they will acceptfax service of pleadings. Certain courts, such as Floyd Superior, prefer an attorney to call ahead of time and get a date for a hearing and then submit the hearing order. Other courts, such as Clark County, may not give you a hearing date over the phone. Floyd County and Clark County have their version of motion hour. For relatively routine matters, you can set anything for a notice of ruling on Monday at 9:00 a.m. Neither attorney needs to show up for this notice of ruling. The notice of ruling simply states that unless you file a written objection prior to the ruling date, the court is going to enter the requested relief automatically. During a provisional hearing in certain courts, the other side may request a summary presentation of evidence. Summary presentation of evidence means that the lawyer is going to explain essentially all of the facts and what the proof would be and then turn his client and say is this accurate? If your client needs relief and time is in the essence, it may be wise to present your case in summary fashion if both parties are amendable to doing that. Typically, both parties have to agree to present it on a summary fashion. All of these things are provided for in the local rules. Each party must complete a verified financial disclosure statement. This document is treated as a Request for Admissions pursuant to the Trial Rules. If not timely responded to, the other side's financial information will be accepted as true. The completion of the Verified Financial Disclosure Statement, however, doesn't preclude additional discovery if necessary.

The materials contained herein are designed to be an overview of the relative areas of the law. This is not intended to be a substantive course on each and every area discussed herein. Practitioners are strongly advised to review current code and current cases concerning new developments in this area. Statutory citations are believed current through October of 1997. The case information should be current through October 1997 as well.