Family Law AdvisorŪ
Frequently Asked Questions
- Indiana FAQs from E-mail Responses -
- I have my children for six weeks during the summer, why should I have
to pay support when I am taking care of them full time?
ANSWER: The Indiana Child Support Guidelines provide that support can
abate by one-half during the non-custodial parent's extended visitation. The reason
it does not abate all together is that it is assumed that the custodial parent
will still have to maintain a home for the child, even when the child isn't
actually physically present at home.
- Our original divorce decree provided for me to have visitation every
other weekend. Since then, I have moved out of state. My former spouse will not
cooperate with visitation since he/she believes that if I do not take my
visitation when the order says I should I am not entitled to any, what
should I do?
ANSWER: You should return to court and ask the judge to modify the decree.
When alternate weekend visitation becomes impractical, the non-custodial parent
should have access to the child during the child's extended vacations from school
including Christmas, Thanksgiving, Spring break, and Summer. If your
ex-spouse is absolutely refusing visitation he/she should be considered to be in
contempt; however, some Judges strictly adhere to their order until it is officially
changed, and thus it is doubtful that the court would support your rights
until an appropriate modified decree is in effect.
- I have moved out of state. Since I did, my ex-spouse has decided I
will not have visitation with my children unless I come to their home to pick them
up and deliver them back. I have offered to purchase a non-stop, round-trip
ticket for them to and from my home. Can I make my former spouse let them come to me?
ANSWER: Like so many questions in divorce, the answer depends on the
individual Judge. However, in general, if the child(ren) are of a sufficient age and
maturity, the court can order your ex-spouse to let them fly to and from
your home. If you were the one who left Indiana, however, it is very likely
that the judge would have you pay both ways. If your ex-spouse is the one who left
the state, the reverse would be true. If, however, you live reasonably close
to each other, the transportation expenses would probably be equally split.
- It has been one year since I was divorced, and I have a much better job
than I did when the decree was entered. My ex-spouse is threatening to come
after me for more child support. Can he/she do that?
ANSWER: All child support awards are determined by the Indiana Child
Support guidelines. If by using the guidelines it is determined that the support
your ex-spouse would receive is 20% or more than he/she is presently getting,
your ex-spouse would be entitled to a modification for an increase in the support.
- I have moved to another state and my ex-spouse refuses visitation.
He/she says that the child(ren) do not want to see me. Is that enough to cause my
rights to be ignored?
ANSWER: No, your ex-spouse is in contempt whether or not your
child(ren)say they do not want to come see you. The courts recognize that often the custodial
parent has a chance to poison the child(ren)'s mind against the
non-custodial parent. It is also assumed that the custodial parent has a positive duty
to promote a good relationship between the child(ren) and the non-custodial
parent; thus, no matter what the child(ren) say, they have to come visit you. If
the ex-spouse fails to cooperate in this regard, he/she can be held in contempt.
Continued failure to cooperate can result in loss of custody to the custodial
parent; although, the court still must consider what is actually in the
best interest of the child(ren).
- Before my spouse and I were divorced he/she was making $50,000.00 per
year. After our divorce he/she decided to go back to school and is currently
barely making minimum wage. He/she is threatening to take me to court to reduce
the child support. Can this be done?
ANSWER: If your ex-spouse quit his/her job for no good reason, then the
support award should not be changed no matter what he/she is currently earning.
However, if he/she took a different job for a reason that the court finds to be
meritorious, your support award could be affected.
- One of my children from my previous marriage is disabled. My ex-spouse
who has custody believes that I should have to maintain him/her as well as the
child. Is that true?
ANSWER: If it is absolutely necessary for your ex-spouse to stay home and
take care of the child, it is possible that the court could order maintenance
during the period of the child's disability. However, if the child's disability
does not require constant in-home care and there are facilities available to
assist your ex-spouse in meeting your child's needs, then there would be no call
for spousal maintenance.
- I put my spouse through school. He/she is now a doctor and is
divorcing me for a younger man/woman. I would like to go back to school myself, but I
need help.
ANSWER: Under Indiana Law, the court can make your ex-spouse pay for
books, tuition, and laboratory fees, to aid you in obtaining a higher education if
you gave him/her substantial assistance in obtaining his/her degree.
- My ex-spouse has remarried and has had two children with his/her new
spouse. I have custody of the two children from our marriage. He/she is making a
lot more money than he/she did when we were getting divorced. Would his two
new children affect the amount of child support I should receive for our kids?
ANSWER: Yes. Under Indiana Law, subsequent children are taken into
account in figuring support awards. This is to say that a percentage of your
ex-spouse's wages will not be considered in the current support calculations. However,
credit for specific out-of-pocket expenses such as child care for the
subsequent children, will not be considered.
- Since my divorce was finalized, I have not finished paying my
attorney. He/she calls me at all hours of the night demanding payment. What can I
do?
ANSWER: Your attorney is subject to the jurisdiction of the Indiana
Supreme Court Disciplinary Commission. If you have a complaint against him or her
for any actions taken in your case or for unethical behavior toward you, you
may file a complaint against the attorney by sending a letter to the Indiana Supreme
Court Disciplinary Commission at the following address: 115 West Washington
Street, Suite 1080, Indianapolis, Indiana 46204.
- We have been divorced for a year. Since that time, several of my ex-
spouse's family members have confided to me that they have reason to
believe that my ex-spouse's youngest child is not mine. I am currently paying support
for both children. Is there anything I can do?
ANSWER: The time to contest paternity is before the final decree is
entered unless you can show new evidence of your child's paternity that was not
available to you at the time of the divorce or that you could not have ascertained if
you had tried. You have basically lost any rights you may have had to contest
the paternity of the child. Even in those rare incidences where fraud can be
shown, it is very difficult to re-open a divorce case to contest paternity. If
there is any question about a paternity issue, it should be litigated before the
divorce is finalized.
- I have never exercised visitation with my son, nor have I paid any
child support. It is nothing against him, but I just don't want to have any
contact with my ex-spouse. He/she has remarried and is now asking the court to let
his/her current spouse adopt my child. What can I do?
ANSWER: Failure to pay child support and/or failure to exercise visitation
can result in a parent's rights being terminated by a step-parent adoption. If
you have not paid child support for six months or have not had significant
visitation with the child for a year, the court will probably find in your ex-spouse's
favor regarding the adoption. However if your ex-spouse has significantly
interfered with your ability to have visitation with the child or you have made
attempts to support the child, you may have grounds to contest the adoption. If you
want to do that, it is very important that you hire an attorney to help you.
- My ex-spouse is refusing to pay child support. I cannot afford an
attorney. What should I do?
ANSWER: Your local prosecutor's office has an obligation to assist you.
There is a nominal fee for this help; however, the prosecutor's fee is much less
than that which would be charged by private counsel. If you go to your
prosecutor's office, ask to speak to the Title IV Secretary.
- My ex-spouse's wages have been garnished for child support. He/she
just quit his/her job. I know where he/she is working, but the support is no
longer being paid or deducted from his/her wages. What should I do?
ANSWER: Go to the courthouse and obtain a certified copy of your divorce
decree or the most recent order establishing child support. Send a copy of it
with a letter to your former spouse's new employer. They are under an obligation
to deduct child support payments from your his/her wages. All you have to do
is prove that they are aware of the garnishment order. Thus, keep copies of
any correspondence that you participate in with them remembering to send
everything by certified mail. If deductions don't begin promptly, write a letter to
the court enclosing copies of all the correspondence along with a copy of your
certified receipt. (Note: Do not send the original receipt from your
certified mail; you will need it if you have to go to court.) The judge should set
your complaint for hearing. Your ex-spouse's employer can be held personally
liable for any child support it fails to collect after receipt of notice of the
garnishment order. You can also obtain assistance from your local
prosecutor's office. (Please see question and answer number 13.)
- Since our divorce, my ex-spouse's attitude has gotten even worse.
He/she is frequently drunk and abusive toward our children. I have primary
possession of the children and would like to curtail his/her visitation rights.
ANSWER: If your ex-spouse is consistently abusive or consumes an excessive
amount of alcohol or any controlled substances in their presence, it is
very possible his/her visitation can be curtailed. However, as a practical
matter, you would need to have good evidence of your ex-spouse's behavior to
convince a Judge. This can be done if the behavior is consistent and provable. Most
Judges would do this and may possibly also make counseling a requisite to resuming
normal visitation.
- I have just moved to Indiana, and my spouse lives in another state. I
would like to get divorced. Can I do this without returning to his/her state?
ANSWER: To ask an Indiana Court to grant you a divorce, you must have
lived in the state for six months immediately preceding the filing of your petition.
In addition, you shall have lived in your county for three months. The County
Venue Rule is somewhat flexible. However, the Jurisdiction Rule (i.e. the
six-month requirement) cannot be changed.
- My spouse and I were divorced a year ago. Neither of us appealed the
judgement. My spouse was awarded a significant portion of the marital
property, and I was ordered to pay most of the debts. He/she has since won the
Indiana Lottery. Can I go back into the divorce court and make him/her contribute
to the payment to our marital debts?
ANSWER: Unfortunately, once debts and property have been established by a
divorce decree, there is no way to modify the provisions without using the
standard appeals procedures. The court retains jurisdiction over children
which is why decrees concerning custody, support, and visitation can be changed
at any time prior to the child's emancipation. However, in general, once a court
has made a decision regarding property division, it loses jurisdiction to take
any further action.
- I believe my child is emancipated and that I should no longer have to
pay
support for him/her. Can I just stop making payments?
ANSWER: No. Under Indiana Law, emancipation is not automatic. To be
considered emancipated, the court has to find that the child is 21 years of age. The
exception to this rule is if the child is 18 years old and no longer
attending school, then your support obligation to that child can be significantly
modified or even eliminated. Much depends on the child's ability to support
him/herself.
- My daughter is out of high school, and she intends to go to college.
Do I have to pay support for her while she is in college?
ANSWER: It is very possible that you will no longer have to give money to
your ex-spouse for child support. However, both of you can be ordered to
participate in your child's college expenses until he/she reaches the age of 21 years.
- My ex-spouse does not want to pay child support, and I do not want
him/her to visit our child. Can we agree to terminate my ex-spouse's parental
rights?
ANSWER: I am not aware of any provision that would enable the parties to
agree to terminate parental rights. To terminate parental rights in the State of
Indiana, an adoption must be filed or the Welfare Department must find that
the child is in need of services (CHINS) and that it is in the child's best
interests for one or both parent's rights to be terminated. The adopting parents and
the natural parents can approach the court themselves to seek their relief;
however, the Welfare Department must intervene for a CHINS petition to be presented
to the court.
- Several years ago I had a massive heart attack. Now my ex-spouse will
not let me have visitation with the children unless I am supervised. It is
his/her opinion that my heart may act up again and that the kids would be left on
their own. I am following all of my doctor's directions and am as healthy as I
have ever been.
ANSWER: Your ex-spouse has no right to use your health condition to
control your visitation with your children. If your condition was voluntary, such as
illicit drug use or excessive alcohol consumption, a court could determine that you
are unable to care for your children adequately. However, if your health is
good enough that your children will not be neglected when they are in your
possession, the court would be hard put to place limitations on your visitation rights.
If you are forced to litigate this question, I would suggest that you obtain a
full physical from your treating doctor so that you can show the court that
there is no risk to the children while they are in your care.
- My attorney does not agree with your advice, what should I do?
ANSWER: You should listen to your attorney. He/she has had the
opportunity to learn as much as he/she can about your case and is probably basing his/her
advice on that knowledge. The information I have given you on the Internet is
very general and is meant to assist you in helping your attorney manage your
case, and to help you decide if you have a good cause for action in the first place.
For purposes here, my advice is general and cannot take into account different
Courts, Judges, or many other situations which would otherwise affect my
advice in a specific situation. Additionally, it is important that you do not use
the information I provide here as a reason to ignore your own attorney's
guidance.
- I had E-mailed a question to you and you did not respond. Why not?
ANSWER: Computers being what they are do not always relay the information
needed to respond. If you do not hear from me within 48 hours of having submitted
an E-mail, please try again. The only thing that would keep me from
responding is if I cannot ascertain your E-mail address so that I can write back.
©1998 LawTek Media Group, LLC
all rights reserved
www.divorcenet.com/in/in-faq04.html