New Child Support Guidelines - "Negative Support Orders"

While the amended child support guidelines are not effective until January 1, 2010, expect "negative support orders", where the custodial parent pays the noncustodial parent, to be more common immediately. Why? Because now that we know what the guidelines will presume in a few months it makes sense to apply the concepts now.

Negative support orders are appropriate under the current guidelines. There were a series of appeal cases under the title Grant v. Hager (first Court of Appeals opinion here, Supreme Court opinion here, and second Court of Appeals opinion here) that addressed whether such an order is allowable. After going back and forth it was decided that courts should be allowed to order the custodial parent to pay the noncustodial parent support if the economics and parenting time suggest that such a payment is equitable. However, such orders were not presumed, but rather, were allowable. In legal matters, this is an important distinction as having a presumption gives a movant big advantage. Now, negative support orders will be presumed to be the proper amount of support.

The Court of Appeals discussed the policy concerns involved:

There are advantages and disadvantages to allowing child support pay-ments to run from a custodial to a noncustodial parent. On the one hand, to do so encourages a noncustodial parent to participate more in his or her children’s lives following divorce, and it results in more similar living environments for children when they go from one parent’s home to the other’s. On the other hand, it also has the potential to increase custody disputes by providing an incentive for a cus-todial parent to fight shared parenting time, and it takes money from the custodial parent, thereby reducing the likelihood that he or she will be able to provide a home more similar to that which the children would have enjoyed had the marriage remained intact.

With the new amendments the former policy interest won out, as the Supreme Court amended the guidelines with the following langugage - The calculated amount establishes the level of child support for both the custodial and non-custodial parent. Absent grounds for a deviation, the custodial parent should be required to make monetary payments of child support, if application of the parenting time credit would so require. For example, if the custodial parent makes $100,000 annually, and the noncustodial parent makes $20,000 annually, and the noncustodial parent exercises enough parenting time with the child, there will be a negative support order. To figure out if this change might effect you, contact an attorney.

Since negative support orders are allowable under the current guidelines, and we know they will mandated under the guidelines on January 1, 2010, expect attorneys and courts to start applying this change now.

For more on the new guidelines, see the September 16, 2009 blog posting.

Mediation Rules Amended - Clarifies Mediator's Role and Duties

Today the Supreme Court published orders amending a variety of rules. Notably, the mediation rules for family law mediators were amended, effective January 1, 2010.

The Rule amendment squarely deals with a mediator's role in the preparation and review of documents:

(F) Mediator’s Preparation and Filing of Documents in Domestic Relations Cases
At the request and with the permission of all parties in a domestic relations case, an
attorney registered under ADR Rule 2.5(B) (Attorney Mediator) or a non-attorney registered
under ADR Rule 2.5(B)(2)(b) (Non-Attorney Mediator) working under the supervision of an
Attorney Mediator, may prepare or assist in the preparation of documents as set forth in this
paragraph (F).
The Mediator shall inform an unrepresented party that he or she may have an attorney of
his or her choosing (1) be present at the mediation and/or (2) review any documents prepared
during the mediation. The Mediator shall also review each document drafted during mediation
with any unrepresented parties. During the review the Mediator shall explain to unrepresented
parties that they should not view or rely on language in documents prepared by the Mediator as
legal advice. When the document(s) are finalized to the parties’ and any counsel’s satisfaction,
and at the request and with the permission of all parties and any counsel, the Mediator may also
tender to the court the documents listed below when the mediator’s report is filed.

Additionally, the mediator may prepare or assist in the preparation of only the following documents:

(1) A written mediated agreement reflecting the parties’ actual agreement,
with or without the caption in the case and “so ordered” language for the judge presiding
over the parties’ case;
(2) An order approving a mediated agreement, with the caption in the case, so
long as the order is in the form of a document that has been adopted or accepted by the
court in which the document is to be filed;
(3) A summary decree of dissolution, with the caption in the case, so long as
the decree is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed and the summary decree reflects the terms of the
mediated agreement;
(4) A verified waiver of final hearing, with the caption in the case, so long as
the waiver is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed;
(5) A child support calculation, including a child support worksheet and any
other required worksheets pursuant to the Indiana Child Support Guidelines or Parenting
Time Guidelines, so long as the parties are in agreement on all the entries included in the
calculations;
(6) An income withholding order, with the caption in the case, so long as the
order is in the form of a document that has been adopted or accepted by the court in
which the document is to be filed and the order reflects the terms of the mediated
agreement.

The Supreme Court also amended the appellate rules to encourge more appellate mediation. Appellate mediation has not been frequently used in family law matters. This may change.

New Indiana Supreme Court Case - Interest and Property Division

Today the Indiana Supreme Court issued a new divorce case opinion, here. The Court summed up its holding as follows:

Employing an arrangement relatively common to dissolution decrees, the trial court awarded the marital residence to the wife and ordered her to pay husband a share of its value when any one of certain later events occur. Husband argues that the statute on civil judgments entitles him to post-judgment interest running from the date of the dissolution decree. We hold instead that the dissolution statutes authorize a court to assess interest, or not, in the course of fashioning a just division of assets.

Citing another case the Court noted:

We presume that trial courts are aware of the time value of money and take it into consideration when dividing property and deciding whether interest should be awarded.

In other words, interest is not an automatic. You need to get the Court to specifically order interest.