With a long-existing Indianapolis divorce practice, Ciyou & Dixon, P.C. attorneys have observed four common life changes that parents with children encounter after they are divorced that they do not understand may require legal action. Some of the emotional, financial consequences, and impact on life can be limited with identifying the issues. We hope this helps.
Significant Change in Income or Job Loss.
Domestic court judges are given very broad discretion to do what is fair (equitable). However, all legal authority has constraints in order to keep if from becoming arbitrary or unequally applied.
One situation, in which the trial court has limited, a number of parents run into trouble is with a significant change in income or loss of a job. This is a particular problem for the parent who is paying child support under the Indiana Child Support Rules and Guidelines.
Why? A trial court can only modify child support back to the date a party files a petition to modify child support. So for example if a payor spouse loses his or her job today, a hypothetical August 1st, but delays filing a petition to modify child support for three (3) months, until December 1st, the Court can only modify the obligation back to the date of filing.
This motion is notice pleading, so even a pro se party should be able craft and file this document.
That said, there is one (1) very narrow exception where a court may retroactively modify child support retroactively without such a motion. This is where all the children move out of the custodial parent’s home and into the other parent’s home. This exception should not be relied upon and the prudent parent who loses his or her job or has a significant reduction in income should file a modification request at once.
Be warned that failure to do so may create a very large child support arrearage without legal remedy. Understand. Be informed. Take action.
In the 1960s relocation was often used by parents as an illicit tool to obtain a leg up in custody proceedings. A parent would move away and file for divorce in another state and seek custody. Jurisdiction laws changed this, stating which state should hear the case.
In addition, until very recently in Indiana, post-divorce a custodial parent who desired to relocate had to provide the non-custodial parent with notice if the relocation was more than 100 miles. Today, if either parent moves any distance, in theory even across the street, they have to provide the non-relocating parent with ninety (90) days advanced notice, if possible.
The notice is more than an e-mail, phone call, or casual mention of a move. It must be in writing and contain the following information:
- The intended new residence, including address and mailing address, if different.
- The telephone number of the new residence, and any other contact numbers.
- The date of relocation.
- Brief statement of the specific reasons for the proposed relocation.
- A proposal for a revised parenting schedule.
- A statement the non-relocating parent may file an objection within sixty (60) days and any other petitions, such as custody modification.
Moving without providing this notice may ultimately lead to contempt or custodial change.
The non-relocating parent has sixty (60) days to object to the relocation. If there is an objection, the relocating parent must show the relocation is made in good faith and for a good reason. This is the relocating parent’s burden of proof.
If this standard is met, the case is then decided by the relocation statute factors and those for custody. Ultimately, this is what is in the child’s best interests.
Moving? Recognize under Indiana law parents have a legal obligation to file a relocation notice for all moves.
A very distant consideration for divorcing parents with young children is emancipation. This is not automatic and a parent should seek an order determining emancipation because the circumstances for emancipation vary.
In general, the duty to support a child ends when the child reaches twenty-one (21) years of age. However, emancipation may occur earlier around age eighteen (18) if the child is attending high-education and is capable of supporting himself or herself.
Nevertheless, if a child is incapacitated, the support obligation and other legal duties may run unless and until this condition resolves.
Emancipation is factually complex, and parents should consult with his or her counsel about when this threshold might be met and the means to advocate for or against emancipation. This may be a right of the child as well if he or she is eighteen (18) years of age.
Gifts and Payment of Child Support Outside Clerk.
Under Indiana law, the payment of child support outside an official account maintained by the Clerk of the county and paid through the State may be considered a gift. Parents should always pay support through and to a child support account and not directly to the other spouse.
Doing the latter may be treated as a gift. In addition, it is very expensive to later go back and get canceled checks and try the issue of whether a payment to the other spouse is child support or a gift.
Life often changes long after the dust has settled from the divorce. Where there are children of the marriage, legal obligation may arise and require affirmative action years later. One may be avoided by payment of support through an official account. Job loss or reduction in income? Relocating? Emancipation? Take action.