At Dixon & Moseley, P.C., we observe the failure and dissolution of a marriage, particularly those with younger children, is as much an emotional life event as a legal matter. Both parents deeply love their children, and want a post-divorce lifestyle to maximize time with the children and quality of life.
This usually creates significant emotional stressors, which translates into the litigation in a myriad of ways when acknowledged by the litigant-parents: neither parent is going to spend the time with the children they did before and their individual standard of living is going to likely be scaled down.
Thus the actual divorce milestone is coveted by the parties–it is over. This is indeed as a good indicator of closure of the past to allow each parent to move on. Nevertheless, the legally prudent parent should be aware of five life events or circumstances where consultation with counsel and litigation may be considered or necessary:
Moving (Relocation).
In Indiana (and many other states), the realities of a mobile society and that working adults no longer have a (one) job-for-life, versus the need for a child to stay in his or her school and community, has created recent legislative changes in the law. It used to be the case a custodial parent had to provide notice of relocation if he or she was moving more than 100 miles or out of state.
This statute has changed so that either parent (custodial or non-custodial) now has to notify the other in advance and the non-relocating parent can object and seek to prevent relocation and modify custody. To avoid losing a custody position or protect parenting time rights, if either parent is going to relocate or does relocate, timely consultation without counsel is necessary to evaluate your legal position.
Weeks or months after the move is likely too late. Be aware an even near-by move by a parent is a factual circumstances that the law requires action. A simply legal consult with legal counsel of your choice is an effective way to determine what legal action you should take whether you want to relocate or oppose it.
Change in Weekly Income (Support Modification).
The loss of a job or change in weekly gross income, particularly if it decreases, requires immediate action by the support-paying parent. The reason is simple: a trial court can only retroactively modify child support back to the date a motion to modify is filed.
This means that even with unemployment, the child support will accrue and be owed, unless the parent files a petition to modify child support under the relevant paternity or divorce statutes. This single filing failure may significantly impair the future ability to recover post-job loss with a large arrearage.
Furthermore, there is a crime of felony (there are certain defenses) non-support and contempt for (willful) failure to pay. Thus, the take-away-from this blog is to act at once with a job loss of significant change in income. Some divorce settlement agreements even require this as a part of that contract.
With this, your counsel can help you assess if the child support is unreasonable if support has been modified within the prior twelve (12) months or is a twenty percent (20%) difference in the amount of support to be paid beyond twelve (12) months. Both situations allow child support to be modified.
Child No Longer is Supportable (Termination/Emancipation).
Child support does not automatically end when a child turn eighteen (18) or moves out off the custodial parents home or goes to college. There are fairly technical rules and factual circumstances that direct when child support and educational expenses end.
At any time the child moves out, turns eighteen (18), goes to college, or reaches twenty-one (21) years of age, or in other situations, you should discuss support modification or termination with your counsel. The important rule to remember is a court-ordered child support obligation continues unless and until modified by a future order.
And child support may only be modified to the date of a filing for modification. If such facts are in play in your case, this is a time you should consult with your counsel.
Parenting Time Denials (Contempt).
Occasional disputes between parents over parenting time are normal. However, where they are a pattern and/or are impacting the aggrieved parent’s relationship with the children, it is time to legally evaluate positions.
The paternity and divorce acts, along with the broad jurisdiction of domestic courts, provides an array of tools to address such situations. In less toxic situations, these may range from contempt to appointment of a parenting coordinator. In more egregious situations, it is possible to obtain a permanent injunction against the offending parent.
Perhaps no attorney or court can correct every parenting time dispute, but judges and lawyers are aware of the sacrosanct right to parenting time and are willing to help.
Change in Child’s Parental Needs or Residence (Custody Modification).
The final post-divorce situation where a parent-litigant may need to consider litigation is where the child’s needs change. Over time and with age, the child’s best interests may be met by a change in parenting time or physical or legal custody. This is a normal part of child development.
However, such situations typically generate disagreement with the parents about the need or timing of such changes. Often these cases are litigated. When these changes begin to manifest themselves is the appropriate time to consult with your domestic divorce counsel to evaluate your position and determine a legal course (if any).
Waiting until the matter reaches crisis level is less than desirable and limits legal tools and increases costs. The point is to be proactive to help the children as they grow and develop post divorce.
Although most parents cannot resolve the fact-of-life changes on their own and between themselves, there are a number of tools available outside trial that may be used by counsel to address the situation, ranging from a settlement conference to divorce mediation.
At Dixon & Moseley, P.C. we hope you find this blog post helpful to your situation. If this is your case, partner with your counsel and chart a legal course that is in the children’s best interests. We practice throughout the State of Indiana.
