Family law attorneys are well aware that for most clients, a contested family law case is anything but a positive experience regardless of the legal outcome.  Clients are dissatisfied as a result of cost, and as a result of the high level of stress and conflict which results from the litigation experience.  While settlements frequently occur in family law cases, those settlements are often after significant time is spent in the “battle” and when a trial date is approaching.

In addition to financial costs, family law disputes also commonly involve substantial emotional and psychological costs.  Mental health practitioners are all too familiar with the severe and long lasting wounds that high conflict family matters can inflict on the parties and on their children.  While most competent family law attorneys are aware of this impact and may try to conduct their practice in a way to help minimize the harm, the litigation process ends inevitably polarizing and increases rather than decreasing the tension between parties as well as their ability to co-parent.  Collaborative law is a method of handling family law matters outside the litigation setting.

The hallmarks of Collaborative Family Law approach include:

• A shared commitment to proceed honestly and in good faith, fully disclosing assets, debts, goals and concerns.
• An avoidance of the resort to litigation or even the threat of litigation.
• Active participation by the parties, including (often multiple) 4-way settlement conferences.
• Identifying common goals and legitimate interests of both parties with an attempt to meet the interests of both parties if at all possible.
• The potential to work directly with other professionals in a team approach to assist in a resolution process (counselors, accountants, financial planners, etc).
• Joint retention of any additional experts needed in the process.
• Disqualification of all lawyers, other professionals or experts involved in the collaborative process from participating in any litigation proceedings between the parties.

Collaborative divorce is not for every case.  It is dependent upon good faith participation, leaving a potential for abuse.  Formal court motions and orders are not available to force compliance or to resolve roadblocks, although mediation and arbitration are available.  Where there is a history of mental illness or uncontrolled spending or hiding of assets, the inability to resort to court enforcement may pose particular challenges.  Parties must be able and willing to participate in face-to-face 4-way meetings, which can be emotionally difficult for parties.

Benefits of the Collaborative Law Process:

• No financial or other incentive for attorneys to become “part of the problem” by refusing to participate in negotiations or taking “take it or leave it” positions;
• Specific needs and challenges of the individual family will be the guiding factors in crafting a unique agreement;
• It allows for effective inclusion of mental health professionals and financial specialists for maximum effectiveness in addressing emotional issues and need for financial planning;
• It significantly increases the likelihood of preserving a positive relationship for the benefit of the children, reducing hostility and conflict;
• Neither party has to face the risk or fear of an unknown imposed decision;
• Offers a high level of flexibility to explore creative solutions;
• Maximizes the client’s privacy by avoiding filed motions in open court hearings;
• Potential for costs savings;
• Offers the potential for parties to learn about and improve their communication, negotiation and problem solving skills.

Collaborative law requires a paradigm shift.  The idea is to avoid the orientation that one party must win and the other party must lose on all or many individual issues and instead attempt to adopt a “win-win” orientation.  For instance, the input of counselors or financial planners might be obtained with an effort to determine what resolution would help both parties move forward, rather than restricting arguments to what the law would require a parent to do.  Parenting schedules and child support are evaluated not just for what the law allows, but to determine what is truly in the child’s and therefore parties’ best interest.  The parties are encouraged to attempt to view the issues from each other’s perspective and the opportunity to manage conflict and educate and counsel a client during the process leaves the parties better able to negotiate future parenting issues as they arise.

Please contact a member of the family law section if you have any questions regarding this new option for resolving divorce matters.

Author: Kelly Lonnberg (bio)
Phone: 812.452.3505
email: klonnberg@bamberger.com

Family law attorneys are well aware that for most clients, a contested family law case is anything but a positive experience regardless of the legal outcome.  Clients are dissatisfied as a result of cost, and as a result of the high level of stress and conflict which results from the litigation experience.  While settlements frequently occur in family law cases, those settlements are often after significant time is spent in the “battle” and when a trial date is approaching.

In addition to financial costs, family law disputes also commonly involve substantial emotional and psychological costs.  Mental health practitioners are all too familiar with the severe and long lasting wounds that high conflict family matters can inflict on the parties and on their children.  While most competent family law attorneys are aware of this impact and may try to conduct their practice in a way to help minimize the harm, the litigation process ends inevitably polarizing and increases rather than decreasing the tension between parties as well as their ability to co-parent.  Collaborative law is a method of handling family law matters outside the litigation setting. 

The hallmarks of Collaborative Family Law approach include:

• A shared commitment to proceed honestly and in good faith, fully disclosing assets, debts, goals and concerns.
• An avoidance of the resort to litigation or even the threat of litigation.
• Active participation by the parties, including (often multiple) 4-way settlement conferences.
• Identifying common goals and legitimate interests of both parties with an attempt to meet the interests of both parties if at all possible.
• The potential to work directly with other professionals in a team approach to assist in a resolution process (counselors, accountants, financial planners, etc).
• Joint retention of any additional experts needed in the process.
• Disqualification of all lawyers, other professionals or experts involved in the collaborative process from participating in any litigation proceedings between the parties.

Collaborative divorce is not for every case.  It is dependent upon good faith participation, leaving a potential for abuse.  Formal court motions and orders are not available to force compliance or to resolve roadblocks, although mediation and arbitration are available.  Where there is a history of mental illness or uncontrolled spending or hiding of assets, the inability to resort to court enforcement may pose particular challenges.  Parties must be able and willing to participate in face-to-face 4-way meetings, which can be emotionally difficult for parties. 

Benefits of the Collaborative Law Process:

• No financial or other incentive for attorneys to become “part of the problem” by refusing to participate in negotiations or taking “take it or leave it” positions;
• Specific needs and challenges of the individual family will be the guiding factors in crafting a unique agreement;
• It allows for effective inclusion of mental health professionals and financial specialists for maximum effectiveness in addressing emotional issues and need for financial planning;
• It significantly increases the likelihood of preserving a positive relationship for the benefit of the children, reducing hostility and conflict;
• Neither party has to face the risk or fear of an unknown imposed decision;
• Offers a high level of flexibility to explore creative solutions;
• Maximizes the client’s privacy by avoiding filed motions in open court hearings;
• Potential for costs savings;
• Offers the potential for parties to learn about and improve their communication, negotiation and problem solving skills.

Collaborative law requires a paradigm shift.  The idea is to avoid the orientation that one party must win and the other party must lose on all or many individual issues and instead attempt to adopt a “win-win” orientation.  For instance, the input of counselors or financial planners might be obtained with an effort to determine what resolution would help both parties move forward, rather than restricting arguments to what the law would require a parent to do.  Parenting schedules and child support are evaluated not just for what the law allows, but to determine what is truly in the child’s and therefore parties’ best interest.  The parties are encouraged to attempt to view the issues from each other’s perspective and the opportunity to manage conflict and educate and counsel a client during the process leaves the parties better able to negotiate future parenting issues as they arise.

Please contact a member of the family law section if you have any questions regarding this new option for resolving divorce matters.

Author: Kelly Lonnberg (bio)
Phone: 812.452.3505
email: klonnberg@bamberger.com

If you are divorced or separated with children or have a child with someone to whom you were never married, you should be aware of that Indiana law requires you to notify the other parent that you are planning to move.  Indiana law regarding notice of intention to relocate is found at Indiana Code 31-17-2.2 et seq.  The Indiana Code can be found at the Access Indiana website (www.in.gov). 

The law applies to parents who are divorced, separated or never married.  In the event either parent intends to move his/her principal residence for sixty (60) days or more, the moving parent must file a Notice of Intent with the Clerk of the court that issued the order and send a copy of the notice to the non-moving parent, no later than ninety (90) days before the intended move.  The requirement to provide notice of relocation does not require a move out or state or of a certain distance.  The law requires notice to the other parent even if you are moving within the state or across the street.

The Notice of Intent must set forth the following: the address of the intended new residence and mailing address if applicable; the home telephone number of the new address; the date of the intended move; a brief statement of the reasons for the proposed move; a proposal for the other parent’s parenting time with the child(ren) after the move takes place; and a statement notifying the non-moving parent that he/she has sixty (60) days to file an objection or request a change of parenting time with the court.

If the non-moving parent objects to the proposed move or requests a change in his/her parenting time with the children because of the proposed move, the non-moving parent must file an objection no later than sixty (60) days after he or she receives the notice of intent to relocate.  The Court is likely to schedule a hearing to decide whether the moving parent should be allowed to move, especially if the move requires the child(ren) to move.  Some of the factors the Court will evaluate are whether the moving parent has a legitimate reason for moving and the move is proposed in good faith.  If the moving parent proves to the Court that the move is for legitimate reason and in good faith, the burden is then on the parent objecting to the move to show the Court that the move is not in the best interest of the child(ren).

Some of the factors the Court will use to review the best interest of the child include:  1) the distance involved; 2) the hardship and expense for the non-moving parent to continue to exercise parenting time with the child; 3) feasibility of preserving a relationship between the child and the non-moving parent in the event of a move including the ability to have suitable parenting time and financial considerations; 4) is there a pattern of conduct by the moving parent to promote or thwart the non-moving parent’s relationship with the child; 5) the reasons why the moving party is moving and the reasons the non-moving parent objects to the move; 6) any other factor affecting the best interest of the child.

Relocation cases are difficult for most parents.  In some cases, mediation is a method to attempt to address the issues in order to develop a compromise or to change parenting time without the expense and emotion of a trial.  Please contact Kelly Lonnberg  or if you would like additional information about relocation.

There is statistical evidence that high conflict divorces do damage to children.  The courthouse should be considered the last option to resolve family conflicts, because contested hearings are expensive, often must be set far off in the future, and the stress of airing a family’s grievances generally serves to intensify rather than resolve the hostility between parties.  Unfortunately, there are certain cases which for various reasons seem to return to court over and over again on parenting time issues. 

The Parenting Time Coordinator program is designed for just these cases.  A court can assign a Parenting Coordinator (“PC”) to hear the grievances of the parties and enter limited proposed orders regarding the specific and recurring parenting time conflicts.  A PC has the authority to speak with counselors, teachers, parties and children.  A PC uses his or her mediation skills to attempt to work out the conflicts.  If there is ultimately is no agreement, then the PC has certain limited powers to resolve those conflicts.  PCs have no authority to change custody or make significant changes in the amount of time the parties spend with the children.  The decision-making is generally limited to issues such as exchange locations and methods, holiday and summer scheduling, right of first refusal, access to records, etc. 

PC’s are trained to draft detailed agreements when needed, much like a mediator.  Mediators are not assigned to a case long term, however, and mediators have no ability to make a decision on these issues if the parties are unable to come to an agreement.   PC’s can handle this week’s problem over dividing the summer parenting time, for example, and in two months the PC can be called again to address how to handle a work schedule change.   The benefits to the parties are: 

• Cost
• Speed
• Finality
• Often some individually crafted advice designed to help parties work out their differences on their own in the future.

If you have questions about Parenting Coordination, please feel free to contact one of our family law attorneys.  We will be happy to discuss the process in greater detail.

Author: Kelly Lonnberg (bio)
Phone: 812.452.3505
email: klonnberg@bamberger.com

A recent article in the Indianapolis Business Journal noted a shocking decline in the number of notaries in Indiana in the last few years.  In years past, a notary public stamp on a document seemed to be ever present and often was the distinguishing characteristic of a document with high importance.  However, in 2007, the Indiana Secretary of State’s office noted almost 23,000 expirations, but only approximately 17,000 renewals or applications for new notaries.  This marked a 22% decline for 2007.  In 2009 the decline accelerated to 30%.  This year the decline to-date is 41%.  The chief legal counsel for the Indiana Secretary of State indicates that he believes the decline reflects that the type of authentication notaries do is falling out of fashion.  Many companies now accept photo I.D. or confirm over the telephone or Internet.  He indicated that notary publics were more popular in the days when companies and people relied heavily on postal mail.  However with the increase in multiple forms of personal communication being available, the mail is not the exclusive source to authenticate the identity of someone’s signature on a document.  If you have questions about notaries in Indiana, contact a Bamberger attorney.

Author: Laura A. Scott (bio)
Phone: 812.452.3557
email: lscott@bamberger.com

As the Bamberger Blog subscriber list continues to grow, we have decided to upgrade our Blog’s email and RSS service from Google Feedburner to the more enhanced Google FeedBlitz.

The new service will allow us more options in terms of creative content, better reach and SEO components and more ways that our subscribers can choose from with regards to delivery options.  We hope you will enjoy the expanded capabilities.

For those of you who subscribe to our blog by RSS feed, you will want to update your feed by going to our subscription page to update with the latest FeedBlitz URL addresses.

For our existing email subscribers, the only change you might notice is the address which sends you the news alerts, if you are receiving them by email.  Otherwise you shouldn’t see any changes at all.  Same great news articles, same great legal service.

Author: Kim Jewell (bio)
Phone: 812.452.3588
email: kjewell@bamberger.com

In general, the custodial parent claims the children of divorced, separated or never married parents as a dependent on his or her tax return.  For tax return purposes, the custodial parent is defined by the IRS as the parent or guardian “with whom the child lived the greater number of nights during the year.”  If both parents have the child or children an equal amount of nights, the parent with the higher adjusted gross income is considered the custodial parent. 

Most divorced, separated or never married parents consider the issue of which parent claims the child or children for tax purposes in their final settlement or final resolution of the divorce or paternity.  Parents can agree or be ordered by the court as to claiming of dependent tax exemptions.  In many cases, the parents will alternate dependent exemptions or divide the dependent exemptions for each tax year with one parent using the dependent exemption in one year or both parents using dependent exemptions for separate children for the tax year.  Only one parent may claim a child for dependency exemption purposes per tax year.

There has been a recent change in the Internal Revenue Code concerning the necessary documentation parents must use to claim dependency exemption purposes.  If  the divorce decree, separation agreement or other court order was issued after 1984 but prior to 2009, the noncustodial parent who has been ordered to claim the dependent child for tax purposes may continue to attach to his or her tax return a copy of the court order allowing the release of the exemption to the noncustodial parent.  If the court order was issued after 2009, the noncustodial parent must attach the new Form 8332 to his or her tax return in order to claim the dependency exemption.  The new Form 8332 must be signed by the custodial parent releasing the exemption.  The new Form 8332 allows a custodian or custodial parent to release the dependency exemption for the current year, multiple future years or to revoke the release of the dependency exemption all together.  A revocation will not be effective until the tax year following the revocation.  The custodian parent must make all reasonable efforts to notify the noncustodial parent of the revocation.  After revocation, an executed copy of the new Form 8332 must be attached to the custodial parent’s tax return each year.

For example, Susan’s and John’s divorce was final in May 2008, and the final decree provided that Susan would be custodial parent of their child Sally.  The order allowed John to claim their child Sally as a dependent on his tax return every year thereafter.  John does not need Susan to sign the new Form 8332 in order for him to claim Sally as his dependent for the subsequent tax years.  If the court order required John to be current in child support for Sally in order to claim Sally as a dependent every year and John fails to pay child support, Susan could revoke her release of the claim of the dependency exemption by completing and mailing to John the new Form 8332.  If Susan’s and John’s divorce is final after 2009, Susan needs to sign the new Form 8332 for John to attach to his tax return in order to claim Sally for dependency purposes.

Claim to an exemption does not affect a parent’s filing status as head of household nor does it affect a parent’s right or ability to claim the earned income credit.

Separated parents of minor children frequently quarrel over the logistics of parenting time, especially considering children’s hectic schedules with sports and other extracurricular activities and during the holidays.  Fortunately, Indiana has Parenting Time Guidelines (IPTG), which Judges frequently default to, at least in part, when issuing rulings on custody and visitation.  The IPTG equally divides holidays between the parents, alternating them over a two year period.  For instance, a father might have the children all even-numbered Thanksgivings; the mother might have Thanksgiving with the children in all odd-numbered years.

Despite an eloquently worded court order and a thorough understanding of the IPTG by both parents, scheduling disputes inevitably arise.  Often, the parties do not discover the dispute unitl it is too late to request the Judge’s intervention.  Some software developers have created programs to assist parents in resolving the more frequently-occurring disputes.  One particular program allows both parents online access to a shared calendar.  Either parent can add entries, such as soccer practices, piano lessons, and parent-teacher conferences.

In addition to the shared calendar, some programs provide a comprehensive online parenting environment with the following tools, amongst others: a message board where parents can communicate about their children, an expense log where parents can track medical and other expenses, and a journal where parents can memorialize their version of an incident.  These online tools generally create a paper trail for future reference by the parents, to resolve disputes among themselves when possible or to use when returning to court because of an irresolvable dispute.

While we have not seen judges in Southern Indiana mandating usage of these programs, most parents would benefit from employing some of the online tools.  If you would like to discuss how you might benefit from some of these tools, please feel free to contact the Bamberger Family Law Section.

In January of 2010, revisions to the Indiana Child Support Guidelines will take effect.  The major areas of change are as follows:

• “Negative support” is now presumed if the guidelines calculation results in the custodial parent paying support, absent grounds for a deviation.
• Child support figures no longer level off at the high end as they did under the previous calculations.  In other words, the high end support figures may well increase.
• The very low end support figures may decrease in certain circumstances.
• The Guidelines now address how Social Security Retirement and Disability benefits are to be applied.
• There is a new worksheet which determines the reasonable cost threshold for insurance premiums available to the parties.
• Transferred, Duplicated and Controlled expenses are now defined, with controlled expenses given consideration in equal parenting time situations.

These are not all the changes, just a sampling of the more significant ones.  How the changes to the Child Support Guidelines may impact your individual case should be discussed with your attorney, because of course individual results may vary.  Please feel free to contact the Bamberger Family Law Section if you would like to discuss how the revised Indiana Support Guidelines may affect you. 

Author: Kelly Lonnberg (bio)
Phone: 812.452.3505
email: klonnberg@bamberger.com

If you are divorced or separated with children or have a child with someone to whom you were never married, you should be aware of that Indiana law requires you to notify the other parent that you are planning to move.  Indiana law regarding notice of intention to relocate is found at Indiana Code 31-17-2.2 et seq.  The Indiana Code can be found at the Access Indiana website (www.in.gov). 

The law applies to parents who are divorced, separated or never married.  In the event either parent intends to move his/her principal residence for sixty (60) days or more, the moving parent must file a Notice of Intent with the Clerk of the court that issued the order and send a copy of the notice to the non-moving parent, no later than ninety (90) days before the intended move.  The requirement to provide notice of relocation does not require a move out or state or of a certain distance.  The law requires notice to the other parent even if you are moving within the state or across the street.

The Notice of Intent must set forth the following: the address of the intended new residence and mailing address if applicable; the home telephone number of the new address; the date of the intended move; a brief statement of the reasons for the proposed move; a proposal for the other parent’s parenting time with the child(ren) after the move takes place; and a statement notifying the non-moving parent that he/she has sixty (60) days to file an objection or request a change of parenting time with the court.

If the non-moving parent objects to the proposed move or requests a change in his/her parenting time with the children because of the proposed move, the non-moving parent must file an objection no later than sixty (60) days after he or she receives the notice of intent to relocate.  The Court is likely to schedule a hearing to decide whether the moving parent should be allowed to move, especially if the move requires the child(ren) to move.  Some of the factors the Court will evaluate are whether the moving parent has a legitimate reason for moving and the move is proposed in good faith.  If the moving parent proves to the Court that the move is for legitimate reason and in good faith, the burden is then on the parent objecting to the move to show the Court that the move is not in the best interest of the child(ren).

Some of the factors the Court will use to review the best interest of the child include:  1) the distance involved; 2) the hardship and expense for the non-moving parent to continue to exercise parenting time with the child; 3) feasibility of preserving a relationship between the child and the non-moving parent in the event of a move including the ability to have suitable parenting time and financial considerations; 4) is there a pattern of conduct by the moving parent to promote or thwart the non-moving parent’s relationship with the child; 5) the reasons why the moving party is moving and the reasons the non-moving parent objects to the move; 6) any other factor affecting the best interest of the child.

Relocation cases are difficult for most parents.  In some cases, mediation is a method to attempt to address the issues in order to develop a compromise or to change parenting time without the expense and emotion of a trial.  Please contact Kelly Lonnberg if you would like additional information about relocation.