GRANDPARENTS – STILL IN THE PICTURE WHEN MARRIAGE ENDS?

One of the most rewarding relationships most people will ever experience is the one between a grandparent and a child. It is very special and no child should be deprived of the benefits that come from spending time with a loving grandparent. Nor should any child be deprived of learning how to take care of that grandparent as the child grows older and their beloved grandparents face old-age.

Do those children sometimes eat the wrong thing while visiting Grammy? Sure they do, but that sugar high will eventually go away. Do they get grimier than parents might like when they go fishing with grandpa? Of course they do but that worm “muck” really will wash off when they get home! The question we should ask is “do these children get something WAY more valuable than proper nutrition and clean hands when they spend time with their grandparents?”

Of course, every grandparent knows the answer to that question and so do most parents. It is a resounding “yes!”

But there are parents who might say otherwise. Even in the best of circumstances, disputes can arise between parents and grandparents. Those disputes are likely to escalate when parents divorce. Or they may develop for the first time if grandparents take sides against one of the parents or against a subsequent step-parent. New disputes frequently arise when one parent remarries after the death of a spouse.

Some of the circumstances that might cause a parent to decide that grandparent visitation is not in the child’s best interests are as follows:

• A grandparent criticizes the child’s parent or step-parent in the presence of the child,
•  A grandparent conspires with the child to obtain an outcome that is contrary to the parent’s wishes,
• A grandparent encourages the child to criticize his or her parents or step-parent,
• A grandparent fails to follow the rules set by a child’s parents, or
• A grandparent gives “gifts” and then expects more than a “thank you” in return.

THE DILEMMA – PRESUMPTION IN FAVOR OF “FIT” PARENTS

While there is a legislative remedy in Indiana if grandparents are being denied visitation with their grandchildren, the outcome in a court of law is rarely what the grandparents expected. Pursuant to Indiana Code 31-17-5-1, a child’s grandparent may seek visitation rights if 1) the child’s parent is deceased, 2) the marriage of the child’s parents has been dissolved in Indiana, or 3) the child was born out of wedlock (and paternity has been established).

However, the United States Supreme Court has ruled that the Fourteenth Amendment’s Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody and control of their children. Specifically, the Court stated that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Troxel v. Granville, 530 U.S. 57, 120 S.Ct., 2054, 2060, 147 L.Ed2d 49 (2000).

In other words, grandparents will not be awarded visitation time if the biological parents are “fit” and have decided it is not in the child’s best interests to spend time with that grandparent. Similarly, “fit” parents may decide how much time with grandparents is in the child’s best interests.

Unfortunately, the consequences of alleging that the parents are unfit are so great, and the burden of proof so high, many grandparents wisely choose not to sue their children for grandparent visitation rights. And those who DO frequently burn bridges that can’t be rebuilt.

THE REMEDY

There are things grandparents can do to avoid parent/grandparent conflicts and it is imperative that these things occur while the parent’s marriage is still intact. By understanding and acknowledging the proper role of a grandparent to a grandchild, most grandparents will maintain the relationship they want with their grandchildren in the event a marriage is dissolved by either death or divorce. Here are a few examples:

• While the marriage is still intact, offer to keep the children so the parents can have a date night every week. Pick them up for dinner and keep them overnight!
• Don’t “take sides” when a grandchild is mad at his or her parents.
• Don’t “take sides” when the parents are mad at each other.
• Don’t buy things for the grandchildren that their parents said they couldn’t have.
•  If the parents are heading for divorce, let them both know that you will always love them. Do not take sides. Find the right words that keep you neutral, such as “I understand how you must feel” or “I’m so sorry you are going through this.” It will be important to not discount their feelings during this difficult time, but you don’t have to adopt those feelings for yourself. It is not disloyal to preserve your relationship with your own child as well as your son or daughter in law! THEY are ALL key to having a relationship with your grandchildren.
• Don’t feel that you are being “used” when the parents only let you have the kids when it is convenient for them. Both parents will have less time with their children once the parents separate, so understand that your time is likely to be reduced as well – at least for a while.
• Be prepared to lose some grandparent visitation when your son or daughter in law remarry after the death of your child. That new step-parent may be threatened by your closeness to the children and may believe you are comparing him or her to the parent that died. This is a difficult time for everyone involved and especially for the grandparent who lost a child and who may have stepped in as a substitute parent for a number of months or years. You can prevent this loss by opening your heart to the new step-parent.

The key to having an ongoing relationship with your grandchildren is to maintain and nourish your relationship with both of their parents, to value the decisions they make as parents, and to value the importance of subsequent spouses.

CONSIDER USING THE PRO-SE MEDIATION SERVICES OFFERED BY INDIANA DIVORCE MEDIATION LLC TO RESOLVE YOUR GRANDPARENT ISSUES!

Carol offers free consultations and will schedule flexible appointments in order to accommodate your work schedule. Schedule your FREE consultation today.  

No. You (the “Relocating Party “) are free to move anywhere you want. However, if your ex (or any other individual with court-ordered custody or visitation rights) (the “Non-relocating Party”) objects to the children’s relocation, you will need the Court’s approval to take the children with you.

The Relocation Statute

Pursuant to Indiana Code 31-17-2.2, any Relocating Party who has or is seeking custody or parenting time must give written notice (the “Notice”) of his or her intention to relocate: 1) to the Court with jurisdiction over the children and 2) to the Non-relocating Party. Notice must be sent by Certified Mail and must contain all of the information set forth in the statute. These requirements apply to both custodial and non-custodial parents regardless of whether they are moving across the country or across the street! The required information includes, among other things, the following:

• The new address and telephone number.
• The statement of the reasons for the proposed relocation.
• A proposal for a revised schedule of parenting time.
• A statement informing the Non-relocating Party that any objection to the children’s relocation must be filed within sixty (60) days after receipt of the Notice, and
• A statement informing the Non-relocating Party that they may file a petition to modify a custody order, parenting time order, grandparent visitation order, or child support order.

What Happens If The Non-Relocating Party Doesn’t Object

If the Non-relocating Party fails to file an objection within sixty (60) days of receiving the Notice, the Relocating Party may move and the current custody, parenting time and child support orders will remain in place.

What Happens If The Non-Relocating Party Objects?

Within sixty (60) days of receiving a Notice, the Non-relocating Party may file a motion seeking a temporary or permanent order to prevent the relocation of a child and/or a petition to modify the existing custody, parenting time, child support or grandparent visitation orders. Objections are rarely filed unless the relocation will take the child a significant distance away from the Non-relocating Party. If the Non-relocating Party files such a motion and requests a hearing, the Court will set a date for a full evidentiary hearing.

Initially, the Relocating Party must show that the intended move is being made in good faith and for a good reason. An example of a “good” reason to move a child away from the Non-relocating Party might be a better job opportunity that will significantly increase the child’s standard of living. An example of a “not so good” reason might be a desire to move in with a new significant other. Some courts have even ruled that a desire to move closer to one’s parents is not a good reason for taking a child away from one of HIS parents. If the relocating parent intends to move for a “not so good” reason, then the children will not be permitted to relocate.

If the Relocating Party proves that the relocation is being made in good faith and for a good reason, then the burden of proof switches to the Non-relocating Party, who must show that the relocation will not be in the child’s best interests. This evidence may include proof that:

• The child has significant ties with the Non-relocating Party that cannot be maintained if the child moves,
• The child has significant ties with other family members that cannot be maintained if the child moves,
• The child has significant ties in the community, school, or church, that are in the child’s best interests and cannot be maintained if the child moves,
• The Relocating Party has a pattern of attempting to alienate the child from the Non-relocating Party,
• The benefit of any pay increase is lost because of the increased living expenses in the new city,
• The benefit of any pay increase is lost because of a decrease in child support and increased expenses associated with transportation for parenting time.
• Schools in the new city do not compare well with the schools where child
• The new city may have more crime or juvenile delinquency as shown by a comparison of police reports.

After all the evidence is admitted, the Court must weigh the statutory factors normally considered in a change of custody – in addition to the factors associated with the move itself. The Court will then render a decision as to whether the relocation is or is not in the child’s best interests. If the relocation is not in the child’s best interests, the non-relocating party will be awarded custody and the parenting time and child support orders will be appropriately modified.

Should I Reconsider a Move?

Probably – A move across town is not likely to result in an objection. However, while your ex-spouse cannot prevent you from moving, any custodial parent contemplating a long-distance move away from an involved non-custodial parent should think long and hard before making that decision. The risks of losing custody are high in a relocation case, and the cost of litigation is expensive. Worse yet, regardless of the outcome, parents frequently lose the ability to co-parent following a relocation litigation. You should talk to an attorney before you make this decision. You should also talk to the Non-relocating Party to find out if he or she would object to the move. Please note, however, that you must file the Notice even if the non-relocating parent has no objection.

In the long run, the real loser in a litigated relocation case is the child who will be separated for long periods of time from one or the other of the two most important people in his or her life. That fact is the one to reconsider.

Can I Reduce the Likelihood of Litigation If a Move Is Mandatory?

Yes – If you determine that your relocation is absolutely mandatory, there are a number of things you can do that might reduce or eliminate the need for litigation. Here are some examples:

• Acknowledge to yourself that the Non-relocating Party (assume that we are talking about the noncustodial parent) is every bit as important to your child as you are.
• Figure out in advance all the ways you can keep your child connected to the Non-relocating Party if the child relocates with you. Be sure you offer the same parenting time schedule you would want for yourself if the Non-Relocating Party wins custody. For instance, some of the things you might do to stay connected would include:

I) Arranging Skype conversations at a set time every day.

II) Creating a parenting time calendar that results in the same number of overnights currently being exercised (such as longer summer or Christmas parenting time, every Spring Break, or long weekend visits for every Monday or Friday Holiday).

• Plan on paying a greater share of transportation costs or reducing the child support obligation since the relocation benefits you.
• Do not file a Notice of Intent to Relocate without first having a private conversation with the Non-relocating Party.
•  Acknowledge to the Non-relocating Party that he/she is every bit as important to the child as you are.
• Show the Non-relocating Party all the ways he/she can stay connected to the child if you move and then ASK for cooperate in the relocation effort.
• Show the Non-relocating Party all the ways you would want to stay connected to the child if the Court awards custody to the Non-relocating Party.
• Don’t “assume” you will win. That assumption will almost certainly prevent you from negotiating a good outcome.

Carol offers free consultations and will schedule flexible appointments in order to accommodate your work schedule. Schedule your FREE consultation today.  

“Will I lose my 401(k) if I divorce my spouse?” This is the most common question divorce lawyers hear once the child-related questions are answered. Unfortunately, there is no simple answer. In a nutshell – the value of the 401(k) will be considered in a final division of the marital estate regardless of who actually receives it in the end.

Pursuant to Indiana Code 31-15-7-4, the court must divide every asset of the parties regardless of whether it was owned by either spouse before the marriage, acquired by either spouse in his or her own right after the marriage but before final separation of the parties, or acquired by their joint efforts. In other words, every debt and every asset that existed on the date of filing for divorce, must be included in the marital “pot” and must be divided in a fair and equitable manner either by the court or by agreement.

Further, pursuant to this statute, the court must “presume” that a 50/50 division of the marital pot is a fair and equitable division. But that is just the starting point! A party may rebut the presumption in favor of a 50/50 division based on the unique circumstances of his or her case. Let’s look at two very different circumstances and the outcomes for each.

1. Mary and John. Mary worked throughout the marriage and contributed significant sums of money to her 401(k), now worth $200,000.00. She will owe taxes of approximately $24,000 when she withdraws that money, so the post-tax value is roughly $176,000. She also saved what she could over the years and had $74,000.00 in her own savings account. This is post-tax money. The total post-tax value of both accounts, therefore, is $250,000.00. Mary is concerned that she will have to give John half of her hard-earned money in the event of a divorce.

John also worked throughout the marriage, earning slightly more than Mary, and virtually all of his income was used to pay the day to day expenses for the family. He also paid for the luxuries the family enjoyed such as vacations to exotic countries, horse-back riding lessons for their daughter, and travel soccer expenses for their son. The parties own a home with equity of $250,000.00. No taxes would have been owed on that real estate if it had been sold on the date of filing. John wants to keep the home but he’s worried that he will have to take out an additional mortgage in order to pay Mary her half of the equity.

This is an easy one. These circumstances lend themselves to a 50/50 division of the marital estate. The argument for a 50/50 division is that both parties contributed to the total value of the marital estate – Mary to the savings, which the parties would enjoy in their later years, and John to the family’s high standard of living. The dilemma is that John can enjoy the marital residence right now while Mary cannot enjoy her 401(k) until she turns at least 59 ½ years old.

In order for each party to have equal access to the liquid assets in the marital estate, then, the parties would have to divide the 401(k) equally, divide the savings equally,sell the house and share the proceeds equally (or John would have to take out a mortgage in order to pay Mary her share of the equity).

However, if the $74,000 savings is enough cash for Mary to purchase a new home and to keep the mortgage payments within her budget, the solution that addresses both parties’ original concerns would be for Mary to keep the 401(k) and savings while John keeps the home.

So – the answer to Mary’s question is “no – you don’t have to lose your 401(k) if you divorce your husband.” However, you must include it in the marital pot and you must divide that pot in a fair and equitable manner.

Parties who collaborate towards a fair and equitable outcome that addresses each parties’ concerns have the added benefit of keeping attorney fees low and preserving more of the marital estate for the parties and their children.

2. Susan and Alex. Alex had a 401(k) worth $200,000.00 when he married Susan and contributed an additional $100,000 after the marriage. Susan had a 401(k) worth $50,000.00 when she married Alex, made no further contributions afterwards, and withdrew the money to pay for a late honeymoon trip to Europe. By the time taxes and penalties were removed, Susan’s $50,000 had been reduced to $35,000.00. There was no prenuptial agreement. Susan and Alex were married for 3 years and had no children together. Susan gave up a good job and stayed home to care for her two children from a prior marriage.Susan also entertained Alex’s client’s at home and otherwise helped Alex grow his clientele during the years she did not work. Assuming that Husband’s 401(k) is the only marital asset to be divided, the question of “how” is not so easy!

Pursuant to I.C. 31-15-7-4, Husband’s entire 401(k) must be included in the marital pot even though most of it was earned prior to the marriage. Susan’s pre-marriage 401(k) does NOT go in the pot because it no longer existed on the date of filing for divorce. However, a court may consider all the factors involved in this case in order to decide an equitable way to divide Husband’s 401(k).

The factors a court might consider include the following:

•  Susan spent her pre-marriage 401(k) on the couple while Husband kept his pre-marriage 401(k) intact,
•  Susan was able to stay at home and care for her children while Alex supported the household on his income,
•  Because Susan did not work during the marriage, she was able to entertain clients and otherwise help Alex increase his income,
•  Susan is capable of earning a significant income but will earn considerably less than Alex,
•  Husband earned $100,000 of the 401(k) during the marriage.

In a real life scenario similar to this one, the parties agreed that Alex would pay Susan the sum of $150,000.00, which is 50% of the entire 401(k). This agreement acknowledged the fact that Susan helped Alex grow his business during the three years they were married, the fact that she would be starting over once she found new employment, the fact that she made less money that Alex, the fact that she would not be able to replace the $50,000 she spent on the couple, and the fact that Susan received the benefit of staying home with her children.

Could a court have awarded Susan a lesser amount? Yes, indeed! However, Alex was concerned that his attorney fees would cost more than the additional money he agreed to pay Susan. He was also concerned that he might be ordered to pay some of Susan’s attorney fees because of the disparity of income between the parties. So – the agreement benefited both parties. The important thing is that Susan and Alex both felt that their negotiated agreement was fair and equitable and that they both saved face and money by not litigating these matters in a public forum.

Carol offers free consultations and will schedule flexible appointments in order to accommodate your work schedule. Schedule your FREE consultation today.