5 Reasons You Should Consider a Premarital Agreement
By: Nicole Makris, Attorney
When marriage is on the horizon, the discussion of a premarital agreement can be an important step in planning for the future. Some people are hesitant about discussing a premarital agreement with their significant other because they fear it appears to be “planning for divorce.” This outlook overlooks the numerous benefits to a premarital agreement. Similar to an insurance policy, the premarital agreement is only there if you need it someday. Here are five reasons to consider when deciding if a premarital agreement is right for you.
- Premarital agreements can be personalized.
You can design your premarital agreement to meet your specific needs. Some couples only wish to distinguish their personal property owned prior to the marriage as separate property so that the rest of the property acquired during the marriage would be considered marital property in the event of divorce. Premarital agreements can be limited in scope to protect specific assets, such as inheritances or residences, or to designate responsibility for specific debts, such as student loans.
- Premarital agreements promote financial disclosure.
The process of entering into a premarital agreement helps promote transparency as to each party’s assets and debts. The sharing of financial standings with one another before marriage can help promote openness in dialogue surrounding financial matters during the marriage.
- Premarital agreements are not only for people who have significant assets at the time of the marriage.
Indiana law considers all property of the parties to a marriage to be marital property subject to division. A premarital agreement can be especially important for individuals who have significant assets that he or she will be bringing into the marriage. Through a premarital agreement, these assets can be classified as that individual’s separate property if a divorce occurs. When an individual has interests in a family business, a premarital agreement can designate the business interests as that person’s non-marital property. However, premarital agreements are not only for people who have significant assets at the time of the marriage. Even if neither party has personal property of value at the time of the marriage, a premarital agreement can plan for the division of future assets that the couple acquires throughout the marriage, such as retirement accounts.
- Premarital agreements can simplify property division in the event of divorce.
Premarital agreements can be extremely valuable in the event of divorce by outlining each spouse’s property rights, from real estate to bank accounts. Premarital agreements also allocate responsibility for debts of the couple, such as credit cards and vehicle loans. Having an agreement on these issues before marriage can minimize the number of issues that the couple must determine if a spouse later files for divorce.
- Premarital agreements may be modified.
You and your spouse can decide to make changes to your premarital agreement during the marriage. Any modification will need to be in accordance with the terms of the original premarital agreement. Couples may choose to modify a premarital agreement when new significant assets or debts have been acquired or if they agree upon a new division of property in the event of dissolution of the marriage.
Premarital agreements can provide clarity to couples on property issues and simplify the division of property if divorce occurs in the future. I have helped many clients over the years with premarital agreements. If you are considering a premarital agreement or have additional questions, please contact me for a consultation.
How Might the COVID-19 Outbreak Affect Your Family Law Case?
By: Nicole Makris, Attorney
The coronavirus (COVID-19) has had a significant effect on daily life as we know it. With school closures, travel advisories, and the economic repercussions of the virus, the COVID-19 outbreak presents numerous possible implications for family law cases. Your family law matter could potentially be impacted in the following areas:
Parents should strive in these unprecedented times to cooperate with one another for the child’s wellbeing. Efforts should be made to maintain the normal parenting time schedule to the extent possible. The Executive Order (“Directive for Hoosiers to Stay at Home”) issued on March 23, 2020 includes that travel required to transport children pursuant to a custody agreement falls within the category of “Essential Travel”. Parents should communicate with one another regarding any changes to the parenting time schedule and should be flexible with make-up time. While flexibility is important, any changes to the parenting time schedule and the reasons for the change should be documented in writing. Expectations regarding the child’s E-learning should be clearly communicated between parents, as should any changes in the health of the child or other household family members in each parent’s respective households. If a parent opts to self-quarantine or is otherwise unable to exercise parenting time, the other parent should facilitate FaceTime and phone calls with the child.
If you have encountered a significant decrease in hours, a loss of employment, or other financial hardship, you should consult with a family law attorney to review your current child support order. It is crucial to be proactive when seeking a modification of child support because the modification can only be retroactive to the date that the request to modify child support is filed (except in very specific circumstances, such as when the child has moved in with the parent who is paying child support).
If you have executed a prenuptial agreement but have had to delay your wedding, you should ensure that the agreement is up to date by the time that your wedding is rescheduled, including updated lists of each party’s non-marital assets and debts and their values and balances, as well as the new date of the wedding.
Property Issues in Dissolutions of Marriage
If your dissolution of marriage is pending, you should obtain updated valuations of marital property before your case is finalized. Changes in the values of marital assets such as retirement accounts should be documented, and verified financial declarations should be updated.
Marital Settlement Agreements
It is possible that the effects of the COVID-19 outbreak could cause you to experience financial hardship to the extent that it is not possible for you to meet your obligations pursuant to your marital settlement agreement. For example, if you are unable to perform according to the property settlement or spousal maintenance provisions of your agreement due to the current events, you should consult with a family law attorney to review your settlement agreement and discuss your options in seeking to modify the agreement.
Precautionary court closures may cause continuances of upcoming hearings. Mediations are also likely to be either rescheduled or conducted by video conference.
Given the uncharted territory that coronavirus (COVID-19) presents, these are general topics to consider. This article is not legal advice. For specific questions on how the COVID-19 outbreak may affect your case, consult with an experienced family law attorney to discuss the facts of your situation.
When May A Request for Grandparent Visitation Be Granted?
By: Nicole Makris, Attorney
A grandparent may seek visitation rights with a child if 1) a parent of the child has passed away; 2) the parents’ marriage has been dissolved in Indiana; or 3) if the child’s parents were not married when the child was born. It is important that paternity of the child be established, otherwise a paternal grandparent cannot be granted visitation. If there is an adoption proceeding pending regarding the child, a petition for grandparent visitation must be filed before a decree of adoption is entered.
When a grandparent requests visitation, the court considers whether the visitation would be in the best interests of the child and whether the requesting grandparent has had or attempted to have meaningful contact with the child. There are specific factors that courts are required to consider when determining whether grandparent visitation is in the child’s best interests. Following the United States Supreme Court case Troxel v. Granville, the factors that the court must address when a grandparent requests visitation are 1) a presumption that a fit parent’s decision regarding grandparent visitation is in the child’s best interests; 2) the “special weight” that is given to the decision of a fit parent; 3) “some weight” given to whether the parent has completely denied grandparent visitation or has allowed some visitation; and 4) whether the requesting grandparent has met the burden of showing that grandparent visitation is in the child’s best interests.
The requesting grandparents have the burden of proof in these cases, and these factors emphasize the amount of deference that is given to a fit parent’s wishes regarding the grandparents’ contact with the child. The judge may allow an in-camera (in chambers) interview of the child to help determine whether grandparent visitation is in the child’s best interest.
I help individuals and families in central Indiana on a variety of family law matters. Contact me if you have questions.
Child Support Modifications: When Child Support Orders May Be Modified
By: Nicole Makris, Attorney
Child support is intended to provide children with the standard of living that they would have enjoyed if their household had remained intact. Once the court issues a child support order, the order may only be modified if statutory criteria are met. The same rules apply to an order for college or post-secondary education expenses, which is in the nature of a child support order. Indiana Code § 31-16-8-1 includes the standards that must be met before a parent may request a modification of a child support order.
Substantial and Continuing Change of Circumstances
The first way that a child support order may be modified is if the parent requesting the modification is able to show that substantial and continuing changed circumstances have occurred that have made the current child support order unreasonable. Examples of these changes of circumstances are the emancipation of one of the children who are subject to a child support order, changes in employment and income of a parent, incarceration of a parent, or if an agreed change in the custodial arrangement between the parents has occurred.
Changes to Factors in Child Support Calculation
The second way that a child support order may be modifiable is if an updated child support calculation would result in more than a 20% change from the child support order in effect, and if the child support order has been in place for at least twelve months before the petition for modification is filed. A more than 20% change in the child support amounts can come about through an increase or decrease in the income of a parent, or changes to the other factors considered in a child support calculation such as the number of children subject to the order, the cost of the children’s healthcare and/or work-related childcare expenses, or the number of overnights exercised by the non-custodial parent.
If a modification of child support is granted, the earliest date that the modification may be retroactive to is the date that the petition to modify was filed. The two exceptions to this rule are if the parents have agreed to and complied with a different method of payment which is in substantial compliance with the intention of the child support order, or if the parent who is paying child support assumes custody of the child so that a permanent change of custody occurs.
Child support modifications are very fact-sensitive. Consult with an experienced family law attorney regarding the details of your case.
Legislative Update: Indiana Emancipation and Relocation Laws July 2019
By: Nicole Makris, Attorney
On July 1, 2019, new legislation went into effect in Indiana that anyone with a child custody order should be aware of. Primarily, a notable change was made to Indiana Code § 31-16-6-6. Under this statute, a child is emancipated when they reach the age of nineteen, which terminates the non-custodial parent’s child support obligation. Now, the law provides for an exception if a child is a full-time student in a secondary school when they turn nineteen years old. Under these circumstances, the parent or guardian has the opportunity to request that the child support obligation continue until and terminate upon the child’s high school graduation.
In order to ensure that child support continues until the child graduates from high school, it is the parent or guardian’s responsibility to file a notice with the court within the time frame of — after the child’s seventeenth birthday and before the child’s nineteenth birthday. The notice must include proof of the child’s enrollment in high school and his or her expected date of graduation. The parent who is paying child support has the opportunity to file an objection or request for a hearing within thirty days of service of the notice.
Relocation Statute Changes
The relocation statute also underwent changes that took effect on July 1, 2019. These changes to Indiana Code § 31-17-2.2-1 affect anyone with a child custody order or parenting time pursuant to a parenting time affidavit. A parent who is relocating now has thirty days before the date that they intend to move or less than fourteen days after they become aware that they will be moving to file their notice of relocation with the court, whichever is sooner. The non-relocating parent then has twenty days from service of the notice to file their response stating their position on the relocation.
In addition to the change in filing deadlines, the updates to the statute allow for informal notice of relocation in some circumstances rather than a formal filing with the court. The relocating parent does not need to file a notice with the court if the move was already addressed in a court order or if the parent is moving closer to the non-relocating parent. The moving parent also does not need to file a formal notice if the new residence is not more than twenty miles away from the non-relocating parent’s residence and the move will not result in a change in the child’s school. Even if a formal notice is not required, the parent who is moving still needs to provide their home address, all telephone numbers, and e-mail addresses in writing (text message or e-mail is acceptable) to any individual who has or is seeking custody, parenting time, or grandparent visitation with the child.
If the parent is required to file a notice of intent to relocate, the notice must include specific information, including the parent’s new residential/mailing address, phone numbers, expected moving date, and a brief summary of the reason for the move, as previously required. The notice must also state whether the parent who is moving believes that the current parenting time or grandparent visitation order should be modified, and that the parent who is not relocating needs to file his or her response within twenty days of receiving the notice. The parent who is not moving may file a request to prevent the temporary or permanent relocation of the child and/or a petition to modify an order regarding custody, parenting time, grandparent visitation, or child support. If the relocation occurs, all current orders for custody, parenting time, grandparent visitation, and child support remain in place until the court modifies them.
Consult with an experienced family law attorney regarding the specific facts of your case.
Prenuptial Agreements and Postnuptial Agreements: What to Know
By: Brian K. Zoeller and Nicole Makris, Attorneys
Prenuptial agreements and postnuptial agreements are practical resources for couples seeking to simplify the property aspects of their relationships by designating how the property and debts of their marriage will be distributed in the event of a future legal separation, divorce, death, or other event.
What is a Prenuptial Agreement?
Far from a new concept, the ancestor of today’s prenuptial agreement, also known as a premarital or antenuptial agreement, is estimated to date back around 2,000 years. Under Indiana Code 31-11-3-2, a premarital agreement is an agreement between prospective spouses that is executed in contemplation of marriage and becomes effective upon marriage. These agreements define the parties’ property rights in the event of legal separation, divorce, death, or other events. Because of this, courts have noted that prenuptial agreements are favored in that they can resolve property issues that otherwise would be the source of litigation.
In order for a prenuptial agreement to be valid, the agreement must be in writing, cannot be unconscionable, and must be entered into freely, without fraud, duress or misrepresentation. Full disclosure between the soon-to-be spouses as to their individual assets and debts is extremely important when entering into a prenuptial agreement to insure their enforcement.
Prenuptial agreements can prove to be extremely valuable in the event of legal separation or divorce by outlining each spouse’s property rights, from real estate to bank accounts. Prenuptial agreements also distinguish responsibility for the debts of the couple, such as student loans and credit cards. Having an agreement on these issues before marriage can minimize the number of issues that the couple would otherwise have to determine if a spouse later files for legal separation or divorce.
What is a Postnuptial Agreement?
Postnuptial agreements, also known as reconciliation agreements, are a useful option for couples who are facing the possibility of divorce but are willing to reconcile. When there has been infidelity or other conflicts in the marriage, postnuptial agreements provide couples with the opportunity to reconcile while outlining their respective rights and responsibilities as to marital property and debts in the event that the relationship ends in the future.
The key distinction between prenuptial agreements and postnuptial agreements is that postnuptial agreements take place after the couple is married rather than before the marriage. As with prenuptial agreements, the couple should fully disclose to one another the extent of their assets and debts.
Prenuptial agreements and postnuptial agreements are useful tools for couples who wish to clearly outline how the marital estate is to be divided in case a legal separation, divorce, death, or other event occurs in the future.
Are you wondering if a prenuptial agreement or postnuptial agreement is right for you? Contact us!
What is an Order of Protection?
By: Casandra L. Ringlespaugh, Attorney
The Indiana Civil Protection Order Act, or ICPOA, is a set of laws passed Indiana in 2002 in regards to domestic and family violence. Under the ICPOA, Courts can issue Orders to protect people from domestic or family violence, stalking, or a sex offense. These Court Orders are called “Protection Orders” or “Orders for Protection,” and the terms are used interchangeably. A protective order may be issued when a Judge finds, by a majority of the evidence, that the respondent (other person) represents a credible threat to the safety of petitioner…
October is Domestic Violence Awareness Month
By: Casandra L. Ringlespaugh, Attorney
Every 9 seconds in the US, a woman is assaulted or beaten, according to a study conducted by the U.S. Department of Justice. Although intimate partner physical violence affects both men and women, women are much more likely be severely physically abused, with statistically 1 in 3 women as compared to 1 in 7 men who have been reported to be victims of severe physical violence by an intimate partner in their lifetime. Moreover, battery is the single major cause of injury to women, exceeding rapes, muggings, and auto accidents combined. In the United States, intimate partner violence accounts for approximately 15% of all violent crime according to a U.S. Department of Justice special report on nonfatal domestic violence. In a staggering statistic, 2 out of every 3 female homicides in the U.S. were at the hand of an intimate partner between 1980 and 2008.
Catholic Pope Amends Religious Annulment Process — What is the difference between a religious and civil annulment?
By: Elizabeth A. Eichholtz, Attorney
Pope Francis announced on Tuesday, September 8, 2015 that the Catholic Church is changing the religious annulment process . The amendments make the process easier and cheaper for individuals seeking an annulment. What does this mean for Indiana couples who were married in the Catholic Church and are now seeking a divorce? While this change is intended to make the religious annulment process easier, it has no actual bearing on the divorce process. To better understand the implications of the new process, it’s important to note the difference between a civil divorce and a religious annulment and how those are treated within the context of civil and canon law.
What You Need to Know about Divorce and Spousal Maintenance
By: Elizabeth A. Eichholtz, Attorney
In any dissolution of marriage case, a question frequently posed by potential clients is: “Will he/she/I be ordered to pay alimony?” In Indiana, what was historically referred to as alimony is now termed “spousal maintenance.” There are two (2) categories of spousal maintenance: (1) temporary spousal maintenance, which may be ordered to be paid by one party during the pendency of the divorce; and (2) spousal maintenance paid once the divorce has been made final by the court.