All Things Family Law

Discussion of all things related to Indiana family law from an Indiana divorce attorney.

This blog provides general family law and divorce law information. If you have a specific issue or case you need assistance with please contact me directly.

Custody Dispute? You Need A Lawyer

Don't believe me? Here is what the Indiana Court of Appeals said in a recent relocation/custody case.

We encourage parties facing issues involving the custody of children to obtain counsel to aid in the litigation of custody disputes. Because the court's order has such a profound effect on the lives of the parties and their children, we cannot emphasize enough the importance of presenting sufficient evidence and developing an adequate record.

In this case the mother had primary custody of a child. She was in the Navy. She was transferred to Florida and needed to move with the child. Mother filed a Notice of Intent to Relocate (a requirement in Indiana). Father objected to the child moving to Florida and a custody battle ensued. Father seemingly 'won' and was granted primary custody.

He won right? Well, not quite. Father and Mother both represented themselves at the custody hearing and, according to the Court of Appeals opinion, failed to provide the necessary evidence at the custody hearing. The trial court did the best it could with what was provided and made a ruling in favor of Father. However, Mother hired an attorney and appealed. The Court of Appeals remanded the case, told the parties to maintain the status quo and ordered "further proceedings," i.e. a new hearing with additional evidence.

The troubling part of this case is that the parties and the child do not have resolution. Mother's moving plans may have been put on hold, but, considering that she serves in the military, that may not have been possible. She incurred appellate attorney fees, and will incur fees on remand. Father, who thought he had won custody, is now in limbo and will likely incur attorney fees as well. Who is paying what amount of child support? Finally, the child may have been sent back and forth between parents and/or schools as a result.

This case illustrates that if you have a custody dispute, you can't afford not to have a lawyer. Click on the title of this post to read the entire case.

Litigation - You won a pie eating contest. First place? More pie!

I took the title of this blog from a friend of mine. He used it to describe making partner at a law firm. To make partner you keep long hours and work hard. Your prize once you are a partner? Long hours and more work! The point is, was the struggle worth the prize?

Is it truly worth fighting in your divorce case? That is a much different analysis. If you are litigating the value of a business or another variable asset then, yes it might be worth fighting. Same goes for dissipation of assets.

In other cases, particularly debt cases or where there are very few marital assets of value, make sure you are not fighting for the sake of fighting. In most life decisions the "cost of doing business" is considered. For example, does it make sense to pay $5000 in closing costs to refinance a mortgage if the amount you pay monthly is only reduced by $5? Of course the answer is no. The same is true with your divorce case. Should you each spend $5,000 each to fight over a $5,000 difference? No. What about a $10,000 difference? That is a little more difficult, but if $10,000 is your "best day" in court the answer is still no, because you have to consider the risk of not getting your best day. $100,000? Yes. If you only have to spend $5000 to risk taking an extra $100,000, then from a risk-reward analysis you should take the risk.

If you are litigating custody or parenting time, then the analysis is more subjective. Is it worth $5000 to get one more day each week with your child? Most people would say yes. How about one day more per month? How about one day more per year? Ask yourself the same questions but consider a much large sum of money, like $20,000.

Finally, to throw a wrench of this entire discussion, consider whether you have the stomach to fight. Can you bear your divorce case pending for 1 year or more? Consider whether an eighteen month custody battle is worth it. Will you be able to co-parent with him/her afterwards? How will the battle affect the child?

Your goals and the risk versus reward of achieving those goals should control your decisions in your divorce case. Don't get caught up in the heat of the moment and lose sight of what you are fighting for.


Mediation and Divorce - Can we use one lawyer to get divorced?

No, if you are looking to employ one lawyer to represent you and your spouse in a divorce. Yes, if you hire a lawyer to act as mediator to assist you and your spouse reach an agreement.

The key difference is the role of the attorney you hire. If you hire the attorney to represent you, they can not represent the other party as well. The attorney ethics rules prevent (yes, attorneys have ethics rules, even divorce attorneys) the same attorney from representing both parties interests. However, there is nothing preventing one party and his/her attorney from creating an agreement and proposing it to the other party to settle the case. This happens all the time.

When you hire an attorney to mediate your case that attorney does not represent either party. That attorney's interest in the case is to fulfill his/her role as mediator by helping drive the parties to reach an agreement. That attorney can answer questions and can play 'devil's advocate', but can not provide legal advice. What is the difference? Well, an attorney you hire will (hopefully) think 2 or 3 steps ahead for you and will point out to you how certain aspects of the agreement might affect you, your kids, or your business in the future. The mediator can not do this as he/she must remain impartial. For example, an attorney you hire to represent your interests would counsel you to require that the other party take certain action to limit your exposure for joint and/or future debt and will suggest ways to do this that serve your best interest; whereas, an attorney you hire to mediate the case can offer solutions for resolving the debt issues if asked, but can not draft the agreement in a manner that looks out for one parties subjective best interest.

A proposed change to Indiana law should make it easier for mediators to assist the parties in creating the necessary documents to instigate and settle the divorce issues. Stay tuned...


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