• Divorce 101: Discovery

    What is discovery?

    Discovery is legal phrase for the process of discovering facts in a case. There are a variety of discovery methods, including interrogatories, requests for production, third party requests for production, and depositions.

    What are interrogatories?

    Interrogatories are a series of questions that must be answered by the party they are served upon under oath. This means anything stated in the interrogatory can be used against you when you testify, so accuracy is of utmost importance.

    What are requests for production?

    Requests for production are lists of documents that you must produce. Typical requests may seek production of your bank statements, credit card statements, and paystubs. If a document is in your possession, custody or control (meaning you have access to the document), you must produce it. In other words, if you do not physically have your bank statements in your possession, but you can print them off of your bank’s website or you can go to the bank and get a copy, you are required to produce those statements.

    What is a deposition?

    A deposition is where one party questions the other party on the record. A court reporter is hired who records and transcribes the testimony, resulting in a transcript. This testimony is given under oath and can be used against you during a hearing, so again honesty is of utmost importance.

    Why should I serve discovery on my spouse?

    Discovery is not always necessary. However, if you are not fully aware of all of the assets and debts that both you and your spouse own, then discovery may be necessary. Additionally, discovery may be necessary to retrieve income information from your spouse. Many cases do not require formal discovery because the parties are able to disclose adequate information through their attorneys in an informal setting (for example, your attorney may ask the opposing attorney to provide your spouse’s bank statements and recent paystubs; if your spouse cooperates, formal discovery may not be necessary).

    Do I have to respond to discovery?

    Yes! Under the Indiana trial rules, discovery must be responded to by a party it is served on within 30 days. Now, it is possible to ask for an extension, either formally through the court or informally by asking the opposing party or attorney. If you do not respond to discovery, you can face sanctions from the court, including being ordered to pay the legal fees of the opposing party.

    Cairns & Rabiola Divorce 101 Series: The purpose of the Divorce 101 series is to go through the possible steps of a divorce in Indiana. This series is based on the assumption that you will hire an attorney to assist you with your legal work. If there is a topic you’d like to see covered in our series, please email us at info@crfamilylegal.com .
    Cairns & Rabiola has a variety of options for clients seeking a divorce from flat fee divorces for uncontested matters all the way to representing clients in highly contested child custody and asset division cases. If you would like to speak with an attorney, call us today at 317-632-4711 or complete our contact form and we’ll call you within one business day.

  • Divorce 101: Assets and Liabilities

    What assets and liabilities are divided in a divorce?

    Assuming no prenuptial or postnuptial agreement, all assets and liabilities are considered part of the “marital estate” for purposes of division in the marital estate. This means it does not matter how the asset or liability is titled – it still gets included in the overall estate. For example, if you own the marital residence in just your name and your spouse has a credit card in just his/her name, both the marital residence and the credit card are counted as parts of the marital estate?

    What date is used to value the assets and liabilities in the marital estate?

    Any date can be used between the date of filing of the petition for divorce and the final hearing on the divorce. In most divorce cases, the date of filing is the date that is used. It is important that all assets and liabilities use the same or close to the same date.

    How are assets and liabilities valued?

    For many assets and liabilities such as bank account, retirement account, credit cards, etc., the value is simply the account balance on the date your are using (see above). For assets that do not have an easy to determine balance, the fair market value is used. The fair market value is the value you could sell the item for on the market. For vehicles, the Kelly Blue Book value is often used. For real estate, an appraisal is ideal but market analysis and tax assessed value can also be used (typically, these are used in negotiations; if the case goes to court an appraisal is likely necessary if the parties do not agree on the value). For personal property such as furniture, the value is basically the value you could sell the item for at a garage sale. Occasionally parties will need/want to have personal property appraised as well.

    How is the estate divided?

    The Indiana Code provides that the Court “equitably” divide the marital estate. It is important to realize that the statute does not say the estate is divided equally. The court can then consider certain factors to determine whether an inequitable division is more appropriate. Some of these factors are the earning ability of each party, assets/liabilities contributed by each party at the beginning of the marriage, assets accumulated due to inheritance/gift. The reality is that a court has broad discretion in dividing a marital estate. Divisions have been upheld as disparate as 91% to Wife, 9% to Husband.

    With that said, most divorces settle and that means the parties determine what is fair in terms of dividing the estate. Most divorce settlements settle between 40/60 and 50/50.

    This division is representative of how the overall estate is divided. That means that each individual asset or liability is not divided by the percentage, but instead the estate is divided overall by these percentage. Our next question will show an example of this.

    Can you give me an example of the division of a marital estate?

    Once all assets and liabilities are determined, the total value of the net marital estate can be determined. Below is a made up marital estate, where the parties own a home with a mortgage, have some bank and retirement assets as well as some liabilities:

    In that case, the total net marital estate is $90,000. In order to divide this estate, 50/50, each of the parties would need to end up with $45,000. This 50/50 division could look like this:

    Note that while some of the assets are divided, some are assigned to one party entirely.

    A 60/40 division of this same estate could look like this:

    Do you have any questions that pertain to the division of assets and liabilities in a divorce? Feel free to leave a comment or complete our contact form and we’ll be happy to reach out to you.

    Cairns & Rabiola Divorce 101 Series: The purpose of the Divorce 101 series is to go through the possible steps of a divorce in Indiana. This series is based on the assumption that you will hire an attorney to assist you with your legal work. If there is a topic you’d like to see covered in our series, please email us at info@crfamilylegal.com .
    Cairns & Rabiola has a variety of options for clients seeking a divorce from flat fee divorces for uncontested matters all the way to representing clients in highly contested child custody and asset division cases. If you would like to speak with an attorney, call us today at 317-632-4711 or complete our contact form and we’ll call you within one business day.

  • Divorce 101: Child Support FAQ

    If your divorce involves unemancipated children, child support will likely be an issue that needs to be addressed. This blog entry will focus on common questions regarding child support.

    How is child support calculated in Indiana?

    Child support on Indiana is calculated with the use of a worksheet. The figures needed to calculate child support are as follows:

    · the number of children

    · each parent’s gross income

    · any child support either parent pays for prior born children

    · the amount of maintenance paid for prior marriages

    · the number of subsequent children either parent has

    · the amount each parent pays for work-related child care expenses

    · the amount each parent pays for health insurance premiums for the children

    · the number of overnights the non-custodial parent exercises with the children

    Once those numbers are put into the calculator , the calculator produces a worksheet that states what the weekly child support obligation is.

    What is a child support worksheet

    Below is an example of a child support worksheet. The circle in red is the amount of child support this hypothetical person would pay based on the other numbers contained on the worksheet.

    What is gross income?

    The calculation of gross income can be complicated for some people, particularly business owners or people that are paid on commission. The basic definition of gross income in the child support guidelines is as follows: actual weekly gross income of the parent if employed to full capacity, potential income if unemployed or underemployed, and imputed income based upon “in‑kind” benefits. Weekly gross income of each parent includes income from any source, except as excluded below, and includes, but is not limited to, income from salaries, wages, commissions, bonuses, overtime, partnership distributions, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workmen’s compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, inheritance, prizes, and alimony or maintenance received from other marriages. Social Security disability benefits paid for the benefit of the child must be included in the disabled parent’s gross income. The disabled parent is entitled to a credit for the amount of Social Security disability benefits paid for the benefit of the child. Specifically excluded are benefits from means‑tested public assistance programs, including, but not limited to, Temporary Aid to Needy Families (TANF), Supplemental Security Income, and Food Stamps. Also excluded are survivor benefits received by or for other children residing in either parent’s home.

    If your gross income is complicated, it is best to discuss your income with any attorney to determine the appropriate weekly gross income to put on the child support worksheet.

    How do I calculate the children’s portion of health insurance premiums?

    The credit either parent may receive on the worksheet for health insurance premiums is only for the portion of the premiums that is paid for the children. This amount can be calculated by reviewing the matrix the health insurance provide provides you each year when you are choosing your health insurance. Generally the matrix will look like this:

    Bi-weekly cost*

    Employee

    $100

    Employee+1

    $150

    Employee+family

    $180

    *The matrix will indicate whether the cost is monthly, bi-monthly, bi-weekly, etc. Generally the cost is by pay period. Remember that the impute for the worksheet is the weekly cost of the insurance for the children.

    In this example, the employee’s cost for the child is $50 every two weeks for one child. This is calculated by subtracting the amount the employee pays for him/herself with the child less the amount the employee pays for him/herself. Therefore, if this employee had one child they would get a $25 per week credit on the worksheet for health insurance premiums. If they have two children they would get a credit for $40 per week ($180 – $100 divided by 2).

    Now if the above employee is covering their subsequent spouse (meaning the spouse not involved in the child support calculation), the credit for the children regardless of the number of children would be $15 because the cost for the children is only $30 per pay period.

    Is there a calculator online that I can use?

    Yes, the state provides a calculator here .

    Do we have to use the amount that the child support worksheet calculates?

    The child support guidelines state that, “In any proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.” With that said, if the parties can state an adequate reason for a deviation then the court may approve an agreement that deviates from the calculation on the worksheet.

    Does a child support worksheet have to be submitted with my divorce decree?

    If your divorce involves children, most Indiana courts require that a child support worksheet be submitted with your divorce decree, even if the child support calculation results in neither party paying child support.

    If you have any other questions about child support, feel free to leave a comment, complete our contact form , or call us at (317)632-4711.

    Cairns & Rabiola Divorce 101 Series: The purpose of the Divorce 101 series is to go through the possible steps of a divorce in Indiana. This series is based on the assumption that you will hire an attorney to assist you with your legal work. If there is a topic you’d like to see covered in our series, please email us at info@crfamilylegal.com .
    Cairns & Rabiola has a variety of options for clients seeking a divorce from flat fee divorces for uncontested matters all the way to representing clients in highly contested child custody and asset division cases. If you would like to speak with an attroney, call us today at 317-632-4711 or complete our contact form and we’ll call you within one business day.

  • Divorce 101: Child Custody FAQ

    Indianapolis child custody lawyers, Indianapolis divorce lawyers, Indianapolis family law attorneys In Indiana, there are two types of custody: physical custody and legal custody. Here are some other questions you may have about custody in a divorce case:

    Is one parent presumed to be the primary physical custodial parent?

    In Indiana divorces, neither parent is presumed to be the custodial parent. If the parties cannot agree on physical custody, the Court will hold a hearing and determine which parent is best suited to be the primary physical custodian. The Court will consider many factors in this hearing, including:

    • The age and sex of the child.
    • The wishes of the child’s parent or parents.
    • The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
    • The interaction and interrelationship of the child with the child’s parent or parents, the child’s sibling, and any other person who may significantly affect the child’s best interests. This includes evidence of who was the primary caregiver of the children during the parties’ marriage.
    • The child’s adjustment to the child’s home, school, and community.
    • The mental and physical health of all individuals involved.
    • Evidence of a pattern of domestic or family violence by either parent.
    • Evidence that the child has been cared for by a de facto custodian.

    The primary consideration for the court is what is in the best interests of the child/children.

    What are the Indiana Parenting Time Guidelines?

    The Indiana Parenting Time Guidelines (“IPTG”) are a set of guidelines for parents of children whose parents are separated through divorce or paternity cases. The IPTG include guidelines for minimum parenting time for the non-custodial parent, extended parenting time is (i.e., summer parenting time), holiday parenting time, communication, and transportation. A copy of the guidelines can be found here .

    Do the IPTG automatically apply to your case?

    Yes the IPTG apply to all cases involving child custody, unless your case involves family violence, substance abuse, risk of flight with a child, or any other circumstances the court reasonably believes endanger the child’s physical health or safety, or significantly impair the child’s emotional development. It is common, however, for the court or parties by agreement to lay out a specific parenting plan that may differ from the minimum parenting time laid out in the IPTG. A court (or the parties by agreement) can also modify any other provisions of the guidelines that it finds should be modified for a certain case. It’s also important to know that if the last order issued in your case was from before March of 2013, there are different guidelines that apply to your case.

    What is the minimum parenting time laid out in the IPTG?

    The minimum parenting time is laid out in section 2 of the IPTG. The guidelines have phased in parenting time for young children. Once a child is 3 years or older, the parenting time for the non-custodial parent is one night a week for up to four hours, alternating weekends from Friday at 6 p.m. until Sunday at 6 p.m., one-half of the summer vacation, and one-half of the holidays.

    What are common deviations from the minimum parenting time?

    Courts have discretion to give the non-custodial parent additional parenting time beyond the minimum parenting time laid out in the IPTG. Some possible deviations are to add an overnight on the midweek parenting time or the Sunday of the alternating weekend. When parties are able to craft their own settlement agreements they are able to be as flexible and creative with their schedule as they want. This is one major advantage to settling a case without going to court.

    Cairns & Rabiola Divorce 101 Series: The purpose of the Divorce 101 series is to go through the possible steps of a divorce in Indiana. This series is based on the assumption that you will hire an attorney to assist you with your legal work. If there is a topic you’d like to see covered in our series, please email us at info@crfamilylegal.com .
    Cairns & Rabiola has a variety of options for clients seeking a divorce from flat fee divorces for uncontested matters all the way to representing clients in highly contested child custody and asset division cases. If you would like to speak with an attroney, call us today at 317-632-4711 or complete our contact form and we’ll call you within one business day.

  • Divorce 101: Legal Custody versus Physical Custody

    In Indiana, there are two types of custody that must be determined in each case involving minor children : (1) legal custody and (2) physical custody.

    Physical custody is simply a description of the parenting time the each parent has with the children. People often use the term “sole physical custody,” but this phrase is a misnomer because rarely does a parent have no parenting time. The more appropriate phrase for the parent that has the majority of parenting time is “primary physical custody.”

    Legal custody, on the other hand, determines who can make the major life decisions for the child. Typically, major life decisions are those concerning medical decisions, educational decisions, and religious decisions. While there is no default legal custody, more often than not, if it is left up to the court, joint legal custody will be ordered unless one parent or the other shows that the parents absolutely cannot communicate or agree on anything.

    Cairns & Rabiola Divorce 101 Series: The purpose of the Divorce 101 series is to go through the possible steps of a divorce in Indiana. This series is based on the assumption that you will hire an attorney to assist you with your legal work. If there is a topic you’d like to see covered in our series, please email us at info@crfamilylegal.com .
    Cairns & Rabiola has a variety of options for clients seeking a divorce from flat fee divorces for uncontested matters all the way to representing clients in highly contested child custody and asset division cases. If you would like to speak with an attroney, call us today at 317-632-4711 or complete our contact form and we’ll call you within one business day.

  • Divorce 101: Do You Need a Preliminary Hearing?

    What is a Preliminary Hearing? Preliminary Agreement? Preliminary Order?

    A preliminary hearing is a hearing conducted by the Court that’s purpose is to set the rules for the spouses to abide by during the pendency of the divorce. The result of a preliminary hearing is a preliminary order issued by the Court. If the spouses are able to work out an agreement that addresses the preliminary issues without going to court, they can enter a preliminary agreement, which is the same as a preliminary order but does not require a hearing. Common issues addressed in preliminary agreements or orders are child support, child custody, spousal maintenance, payment of debts, and possession of the marital residence.

    Do you need a Preliminary Hearing or Agreement?

    Not every divorce needs a preliminary hearing or agreement. If you and your spouse can amicably deal with child custody and support as well as the payments of your debts during the pendency of the divorce than there may be no reason to address preliminary issues. If you and your spouse have separate finances and/or have been physically separated for some time, a preliminary agreement or hearing is typically not necessary.

    For parties that cannot agree on these issues, a preliminary hearing should be requested. Often times, parties are able to work out a preliminary agreement prior to a hearing date, but getting the issues set for a hearing can encourage both spouses to get the issues worked out between themselves, rather than attend a court hearing on the matter. Without a hearing date set, one party may have no incentive to reach an agreement.

    When should you request your preliminary hearing?

    When you file for divorce, your attorney should discuss with you whether or not you should request a preliminary hearing. A preliminary hearing can be requested in your initial filing for divorce . If you do request a hearing, the Court can set the matter for a hearing as soon as the Court’s calendar permits. This hearing can be heard before the 60 day cooling off period is over.

    A preliminary hearing can also be requested at a later time and it can also be requested by the party that did not file the divorce (this person is called the “Respondent” where as the person that filed the divorce is called the “Petitioner”). Note, in most Indiana counties, the Court will not set your case for a preliminary hearing unless one of the parties requests that the case be set for a hearing.

    To see where the preliminary issues fits into the process of divorcing in Indiana, check out our Divorce Roadmap .

    Cairns & Rabiola Divorce 101 Series: The purpose of the Divorce 101 series is to go through the possible steps of a divorce in Indiana. This series is based on the assumption that you will hire an attorney to assist you with your legal work. If there is a topic you’d like to see covered in our series, please email us at info@crfamilylegal.com .
    Cairns & Rabiola has a variety of options for clients seeking a divorce from flat fee divorces for uncontested matters all the way to representing clients in highly contested child custody and asset division cases. If you would like to speak with an attroney, call us today at 317-632-4711 or complete our contact form and we’ll call you within one business day.

  • Uncontested Divorce FAQ

    Indiana divorce attorneys, Indiana family law attorneys, Indiana uncontested divorce The Indiana family law attorneys at Cairns & Rabiola are happy to assist clients in both contested and uncontested divorces. These frequently asked questions are aimed to help you determine if your divorce is uncontested and how we can help you if you decide to hire an attorney.

    How do you know if your divorce is uncontested? In an uncontested divorce, both spouses agree to the majority of the terms of the divorce. These terms include the division of property (including any residences, vehicles, retirement accounts, bank accounts, etc.), child custody provisions, and child support generally (our attorneys are happy to do a child support calculation). Typically, divorces with children are not uncontested, but every once in a while parties agree on all terms regarding the children and are able to proceed with an uncontested divorce.

    Why does it matter if my divorce is uncontested? Our family law attorneys are happy to assist clients throughout the state of Indiana with uncontested divorces for a flat fee . The benefit of a flat fee in a divorce is that assuming the divorce is truly uncontested you know the cost of the divorce from the onset. The flat fee varies depending on a number of factors (whether you have children, whether an income withholding order needs to be completed, whether retirement accounts are being divided that require a Qualified Domestic Relations Order, and whether you need a quitclaim deed prepared). In addition to the flat fee paid to the attorney, the client also pays the filing fee required by the county the divorce is filed in.

    What does the flat fee include? The flat fee for all uncontested divorces includes the drafting of the petition for divorce, summons, appearance, agreement of settlement, waiver of final hearing and decree of dissolution. We also handle filing of the documents. For an additional flat fee, we will also prepare income withholding orders (for payment of child support), Qualified Domestic Relations Order (for tax-free transfer of qualified retirement accounts, such as 401(k)s), and quitclaim deeds.

    How do you charge for uncontested divorces? Our flat fees start at $300-$400 and increase depending on whether we also prepare the income withholding orders, child support worksheets, Qualified Domestic Relations Order(s), and quitclaim deeds.

    What is the time period for an uncontested divorce? In Indiana, there is a 60 day waiting period between the filing of the divorce and the court being able to approve a final settlement agreement. Assuming both spouses execute the necessary documents within the 60 days, most uncontested divorces are ready to be filed for approval by the court on the 60th day (although we cannot control how soon the court will actually approve the settlement agreement).

    Does my spouse need an attorney in an uncontested divorce? While the family law attorneys of Cairns & Rabiola only represent one spouse in a divorce for ethical reasons, it is not a requirement that the other spouse retain an attorney. Our divorce attorneys will not give legal advice to the non-represented spouse. Of course, the non-represented spouse is more than welcome to seek legal counsel of his/her own.

    Do I have to come to your office for an uncontested divorce? No, most clients that hire us to do their uncontested divorce never step foot in our office. We can do most of the work over email. This also allows us to do uncontested divorces in any county in Indiana.

    If you would like to speak to a divorce attorney about your uncontested Indiana divorce, please call us at 317-632-4711 or complete our contact form and we’ll email you! We offer a free 30 minute phone consultation for all potential clients.

  • Divorce 101: How to File for Divorce in Indiana?

    Once you have found an attorney to hire to represent you in your divorce, there are a few things you need to know about where and how to file for divorce in Indiana.

    Where do I file for divorce?

    In Indiana you typically are required to file the divorce in the county where you live. Indiana requires that you be a resident of the state for 6 months and a resident of the county you reside in for 3 months before you file. This means that you cannot move to Indiana and file the next day.

    What is filed?

    The petition that is filed and that you must sign outlines some basic information about your marriage, including the date you were married, the counties where each of you reside, and whether you have any children (and if so, their ages and names). In this petition you can also request the court to set your case for a preliminary hearing. We will discuss preliminary hearings in our next blog.

    Does it cost money to file for divorce?

    In addition to attorney fees, all counties charge a filing fee. This fee is only paid by the party that files the divorce. If you are the filing party, most attorneys will require you to pay this filing fee up front in addition to your retainer. Here are the current filing fees for the central Indiana counties:

    · Marion: $161

    · Hamilton: $141

    · Hendricks: $161

    · Johnson: $161

    · Boone: $161

    · Johnson: $161

    How does my spouse find out about my filing?

    One of the decisions you and your attorney will need to make before you file is how your spouse will be notified of the divorce. The easiest method of service for most is achieved by having your spouse sign a waiver; to do this, you would tell your spouse you have filed for divorce, give your spouse the paperwork that you have filed, and your spouse would sign a waiver of service (your attorney would then file the waiver with the court). If this is not possible, the other avenues for service are by certified mail, by sheriff, or by private process. Service by certified mail is the most affordable method of these options but can be tricky if you and your spouse still reside together. Be sure to discuss with your attorney the best way to serve your spouse.

    Cairns & Rabiola Divorce 101 Series: The purpose of the Divorce 101 series is to go through the possible steps of a divorce in Indiana. This series is based on the assumption that you will hire an attorney to assist you with your legal work. If there is a topic you’d like to see covered in our series, please email us at info@crfamilylegal.com .
    Cairns & Rabiola has a variety of options for clients seeking a divorce from flat fee divorces for uncontested matters all the way to representing clients in highly contested child custody and asset division cases. If you would like to speak with an attroney, call us today at 317-632-4711 or complete our contact form and we’ll call you within one business day.

  • Divorce 101: Roadmap to Divorce

    The roadmap to divorce is intended to give you a basic understanding of how an Indiana divorce travels from the initial filing of divorce to the finalization of the divorce. Keep in mind that no two divorces are the same and that this image is only meant to give you a general overview.

    Future topics of our Divorce 101 series will cover most steps shown on the roadmap to divorce, including provisional hearings/agreements, the identify of marital assets and liabilities, mediation, how child support is calculated, etc.). Last week’s post covered the the basics of filing for divorce . If you have a specific question about the roadmap to divorce, please feel free to email us .

    Cairns & Rabiola Divorce 101 Series: The purpose of the Divorce 101 series is to go through the possible steps of a divorce in Indiana. This series is based on the assumption that you will hire an attorney to assist you with your legal work. If there is a topic you’d like to see covered in our series, please email us at info@crfamilylegal.com .
    Cairns & Rabiola has a variety of options for clients seeking a divorce from flat fee divorces for uncontested matters all the way to representing clients in highly contested child custody and asset division cases. If you would like to speak with an attroney, call us today at 317-632-4711 or complete our contact form and we’ll call you within one business day.

  • Three Things to Consider When Hiring a Divorce Attorney

    There are many questions you should ask a divorce lawyer when you are deciding whether to hire them. Below are a list of some questions we’d suggest asking and that we are more than happy to answer in our consultations.

    1. Fees . What does the lawyer charge for the retainer? What is the attorneys hourly rate? Does the attorney bill the clients on a regular basis? Before the consultation, make sure you ask the attorney if there is a fee for the consultation.
    2. Communication . What is the best way to communicate with the attorney? How soon should you expect the attorney to return your email or phone call? Communication is a major key to a successful relationship with your attorney. Make sure the divorce attorney has good practices regarding their communication with their clients. During the consultation, make sure you feel comfortable talking to the attorney and consider whether you’d be comfortable disclosing information that may be awkward to disclose.
    3. Attorney’s Experience . What practice areas does the attorney regularly practice in? What courts does the attorney regularly practice in? How long has the attorney been practicing family law? You want to make sure you hire an attorney who is not only experienced in family law but is also comfortable practicing in the jurisdiction (in Indiana, that would be the county) where your case will be heard. It’s also important to hire an attorney who practice family law regularly; some attorneys dabble in many areas of the law and, therefore, don’t have as much experience with divorces.