Cross Glazier Reed Burroughs, PCCross Glazier Reed Burroughs, PC2024-03-07T16:31:09Zhttps://www.cgblawfirm.com/feed/atom/WordPress/wp-content/uploads/sites/1603972/2022/10/cropped-favicon-32x32.pngOn Behalf of Cross Glazier Reed Burroughs, PChttps://www.cgblawfirm.com/?p=493432024-02-26T18:39:31Z2024-02-14T19:53:32ZCommon Misconceptions about Mediation in Family Law Cases
From the high-profile divorces of Hollywood’s elite down to the kitchen-table negotiations of the everyday person, family law issues can impact anyone. Mediation has emerged as a pivotal tool to help both sides come to an amicable resolution. There are many misconceptions about the mediation process, but the truth remains that mediation often offers a universally accessible avenue for conflict resolution, one that can help those going through a divorce navigate the complex emotional and financial intricacies with discretion and dignity.
Yet, some still pause before considering the use of mediation for their divorce, often due to the misconceptions we noted below. Here, we discuss and dispel five of the most common misconceptions about mediation so you can have better information to help determine if mediation is the right process for you and your family.
Misconception 1: Mediation is just like going to court
Mediation is a private, voluntary process, not a public court proceeding. During mediation, a mediator facilitates communication and negotiation, rather than making decisions for you. It is a collaborative approach focused on finding mutually acceptable solutions.
Misconception 2: A mediator will decide the outcome
Mediators do not issue rulings or impose decisions like a judge. Their role is to guide the discussion and help parties reach their own agreement. The parties themselves create the decisions made during mediation.
Misconception 3: Mediation is not suitable for high-conflict cases
Even in high-conflict situations, mediation can be effective with a skilled mediator. Mediation can reduce hostility and improve communication for future interactions.
Parties can still have legal representation during mediation to protect their interests.
Misconception 4: Mediation will not affect the legal process
Agreements reached in mediation are legally binding if properly documented and filed. A successful mediation will eliminate the need for a trial or further court intervention on the issues resolved at mediation.
Mediation can also set a precedent for amicable negotiation in future disputes. This is particularly helpful for families with children and disagreements over child rearing can occur throughout the parental relationship.
Mediation is well-suited for cases with complex assets, as it allows for flexible and creative solutions. This is because parties can bring in financial advisors, accountants, or other experts to assist during mediation and the parties have more ability to craft outside the box solutions that a Court could not order.
The fact that mediation is confidential can make its use even more appealing for those with complex finances because it can protect sensitive financial information from becoming public record.
Mediation is a valuable tool in family law cases, especially those involving significant assets. It offers a flexible, confidential, and often more efficient path to resolving disputes compared to traditional litigation. Dispelling these misconceptions allows individuals to make informed decisions about their legal strategies.
[nap_names id="FIRM-NAME-1"] is ready and willing to help you with your mediation needs. If you have additional questions or would like to learn more, please contact our office.]]>On Behalf of Cross Glazier Reed Burroughs, PChttps://www.cgblawfirm.com/?p=493422024-02-09T12:56:22Z2024-02-09T12:56:22ZWhat is mediation?
Mediation is a process where a neutral third party, known as a mediator, helps couples negotiate and reach an agreement on various aspects of their divorce, such as property division, child custody, and support. Unlike a judge, a mediator does not make decisions for you but facilitates communication and proposes solutions. Benefits of this process can include:
Confidentiality: Unlike court proceedings, which are public, mediation is a private process, allowing you to keep personal affairs confidential.
Control: You have more control over the outcome, as you are directly involved in negotiating the settlement.
Cost-Effective: Mediation can be less expensive than going to court due to reduced legal fees and a shorter timeline.
Reduced Conflict: Mediation fosters cooperation and can lead to a more amicable relationship post-divorce, which is particularly beneficial if children are involved.
How do I choose a mediator?
Look for a mediator with extensive experience in family law and high-asset divorce cases. Look for a professional who understands complex financial matters and the nuances of Indiana law. Check any potential mediator’s credentials. Make sure the mediator has the necessary training and relevant certifications or awards.
It is also important to choose someone both parties feel comfortable with, as trust is crucial in the mediation process.
What can I do to prepare for mediation?
You can help to better ensure a successful and efficient mediation process by gathering financial documents. It helps to be prepared with detailed financial records, including assets, debts, income, and expenses. It is also a good idea to think about your priorities. Know what is most important to you in the settlement, but also be prepared to compromise.]]>On Behalf of Cross Glazier Reed Burroughs, PChttps://www.cgblawfirm.com/?p=493382023-12-12T17:21:37Z2023-12-12T17:21:37ZWhat is alternative dispute resolution?
The term alternative dispute resolution (ADR) refers to ways parties can reach an agreement without traditional courtroom litigation. The most common examples of ADR are mediation and arbitration.
We discussed mediation in more detail in a previous post, available here.
What is arbitration?
The arbitration process uses a neutral third party, known as the arbitrator, who serves in a role like that of a judge presiding over a trial. Both parties present their case, and the arbitrator provides a binding decision.
Why would I consider use of arbitration instead of litigation?
It is wise to have a basic understanding of the pros and cons of the system before moving forward. Some of the more notable benefits can include:
Privacy. Matters discussed in arbitration are more likely to remain private compared to litigation. This is because litigation generally occurs in a courtroom and results in a public transcript.
Efficiency. Arbitration is not bound to the court calendar. This allows greater scheduling flexibility and often translates to a more efficient resolution, saving all involved time and money.
Clear conclusion. Upon conclusion, the arbitrator provides a binding decision.
Although this finality is beneficial for some, others may view it as a negative. It is important to carefully consider the pros and cons of arbitration so you can move forward with the process wisely.]]>On Behalf of Cross Glazier Reed Burroughs, PChttps://www.cgblawfirm.com/?p=493342023-11-06T18:07:50Z2023-11-06T18:07:50ZHow is mediation different from going to court?
Mediation does not move forward in court, in front of a judge. Instead, mediation uses a neutral third party to help guide negotiations, with the goal of developing a divorce settlement agreement. There is not a judge making a final decision but a mediator who serves to help the parties, the divorcing couple, put together a divorce settlement agreement.
There are some distinct advantages to mediation compared to traditional litigation. These can include:
Time. Mediation generally takes less time to reach a resolution compared to a court divorce. This is, in part, because the divorcing couple is not confined to the court’s calendar.
Cost. Because it takes less time, mediation is often less expensive than a courtroom divorce.
Control. Both parties get to decide if they agree to a proposed solution, not the judge.
Mediation is especially helpful for those who wish to coparent after divorce. This is because the process encourages cooperative conflict resolution and clear communication which can reduce the risk of further conflict when navigating a parenting plan after the divorce is finalized.
The final agreement is also voluntary. Unlike a court case, where the court’s decision is essentially final unless you wish to appeal, the parties can choose to abide by the results of mediation or to pivot and move forward with litigation.
What is the process for mediation?
First, the parties or the court chose a mediator. The mediation process itself can occur in virtual platforms or in person and is confidential. It will consist of one or more meetings, where both parties can share their goals and a mediator will attempt to help the parties put together a final divorce settlement agreement.
How can I prepare for a successful mediation?
The first step is to take time to prepare for the process. Gather important financial documents and other information relevant to the divorce. It can help to prepare a draft of the divorce agreement and propose the document at mediation. You can then work together to refine the document and tailor it to your specific situation.
It is also helpful to have the right team on your side during the mediation process. This can include legal counsel as well as financial experts if complicated assets, like business interests, are part of the marital estate.]]>On Behalf of Cross Glazier Reed Burroughs, PChttps://www.cgblawfirm.com/?p=493162023-08-25T14:15:22Z2023-08-25T14:15:22ZWhy is the process more difficult after a divorce?
In most cases, courts encourage both parents to play an active role in the upbringing of their children after a divorce. They help achieve this goal by having parents put together parenting plans outlining the role each parent will play in their children’s lives even after divorce.
Maintaining this parenting plan after a large move can be very difficult. As such, custodial parents will generally need to go through a legal process before they can officially make their move.
What is the legal process?
Indiana state law has requirements regarding notice and filing the right paperwork before making such a move. If the other parent objects, they may take the matter to Court. If the Court is asked to rule on the move, it will consider various factors when granting or denying the relocation of a parent with children. Some of the more common include:
Relationships. The court will likely take into account the quality of the relationships between the children and the custodial and noncustodial parents when making a determination.
Impact of the move on relationships. It is also important for a moving custodial parent to clarify how the move will affect these relationships. Will it have a negative impact on the quantity and quality of the children’s future contact with the noncustodial parent? If so, what are the plans to mitigate this risk? This can include suitable parenting time arrangements.
Overall benefit of the move. It is likely that if you are taking the time and putting in the effort to make a move there is a good reason. The custodial parent should explain these reasons including information about the degree to which the move will enhance their and the children’s lives economically, emotionally, and educationally.
Role of noncustodial parent. The court will likely look into whether the noncustodial parent exercised all the parenting time with the children he or she was allowed under the current Order as part of its determination. This can include involvement of the noncustodial parent in the education, extracurricular activities, and medical care of the children.
One of the biggest obstacles moving custodial parents face is often the feasibility of preserving the relationship between the noncustodial parent and the children. To help overcome this obstacle, the court may consider the willingness of the relocating parent to share in the transportation expenses for the parenting time.]]>On Behalf of Cross Glazier Reed Burroughs, PChttps://www.cgblawfirm.com/?p=492792023-08-02T15:52:18Z2023-08-02T15:52:18ZHow does the process start?
It often begins with a provisional order, a type of stopgap that fills in as a parenting plan before the divorce is finalized.
In a recent example of how the court navigates custody issues, a father argued that the trial court abused its discretion when it changed the parenting plan. Instead of sticking with the original terms in the provisional order, the court changed the amount of time the father got with his child.
The father argued that the court overstepped when it “restricted” his time with his child. He stated this “restriction” occurred when the court did not keep the terms as listed within the provisional order. Under the provisional order, the court granted the father two overnights on alternating weekends and a mid-week overnight every week. The dissolution decree was different, granting one overnight on alternating weekends and one mid-week visit of four hours.
The father argued that this was a restriction and, for the court to restrict his time they need to show that continuing the plan as listed within the provisional order would result in physical or emotional danger to the child.
Did the court make a mistake?
The father appealed the case and took it to the Court of Appeals. On appeal, the court used this case to discuss the difference between provisional orders, dissolution decrees, and modifications. A modification is a term of legal significance, and it is important to understand when it applies to child custody cases.
As noted above, a a court will use a provisional order as a temporary solution until the parents finalize the divorce. Once the parents finalize the divorce, the trial court makes their determination. Changes to the court’s determination can rise to a modification. This case did not involve changes to the determination, but to the provisional order. As a result, it was not a modification, and the court did not need to prove any sort of endangerment to warrant the changes.
How much time with each parent is reasonable?
State law often provides guidelines for reasonable parenting time. In some cases, Indiana state law allows for a deviation from these guidelines. This deviation is different from a restriction. A deviation from the guidelines could result in parenting time less than the minimum time set forth in the Indiana Parenting Time Guidelines so long as the deviations are accompanied by a written explanation indicating why the deviation is necessary and appropriate in the case. A restriction like supervised parenting time requires a finding of endangerment while a deviation only requires a written explanation. Applicable here is the fact that a deviation is generally easier to prove than a restriction.
Here, the appellate court explains that the lower court deviated from recommended parenting time because there was evidence that sticking with the recommendation would have a negative impact on the child’s emotional development. Examples of evidence included Father’s desire for the child to miss extracurricular activities because they conflicted with his parenting time and Father’s disagreement with the child’s desire to have employment.
An additional factor for consideration was that the child was not comfortable with full parenting time and his mental health professional was concerned that if pushed to meet Father’s rigid parenting time demands, he could reject Father altogether when he turned 18 years of age.
In its holding, the court was careful to point out two clarifications. First, that a deviation from the guidelines is not unreasonable per se. There are many instances when a deviation makes sense and this case provided one example. Second, that the guidelines for teenagers include special considerations such as the noncustodial parent making efforts to accommodate a teenager’s busy schedule.
This case is important because it not only provides an example of how courts analyze these issues but also the importance of legalities. Each word holds a specific meaning and the rules that apply will vary. This is why it is important to seek legal counsel to help guide you through these issues and better ensure a resolution that works for your family’s needs.
Craig Randolph v. Karen A. Randolph, Court of Appeals of Indiana, May 26, 2023, https://public.courts.in.gov/Decisions/api/Document/Opinion?Id=SEK5OUnFP6xz0SweMdidjqgP6ftbYJcKECde62G3kTaBBTEKPOAq-4kD0uvicV9x0]]>On Behalf of Cross Glazier Reed Burroughs, PChttps://www.cgblawfirm.com/?p=492782023-07-07T19:25:28Z2023-07-07T19:25:28ZWhat factors affect the division of retirement assets?
Retirement assets are particularly difficult to split. This is because they are often a future interest, one that the owner does not take out until the time of retirement. Another issue is the fact that they are often maintained by a third party. In many cases, the parties can ensure the split of a retirement asset as outlined within a divorce agreement through use of a Qualified Domestic Relations Order (QDRO). This court order serves to require the third party that holds the retirement asset to make payments to someone other than the owner of the account.
Although useful for many types of retirement accounts, QDROs do not always work. One example is certain Indiana government pensions. In a recent example, a divorcing couple attempted to split an estimated $1.1 million pension benefit. In this case, the husband worked within the Sheriff’s Department, so the Indiana government held the pension. As a result, a QDRO would not help ensure division.
To make sure the wife received her portion of the funds within the pension, the court ordered the husband to take out and maintain a life insurance policy with the wife listed as the sole beneficiary. The husband appealed the ruling and argued the following:
Presence of the policy. First, the husband argued that the court could not order him to take out a life insurance policy.
Payment for the policy. Next, the husband stated in his appeal that the law does not allow the court to force him to pay for the policy.
Value of the pension. Finally, the husband argued that the court used the wrong value of the retirement account because it did not take tax implications into account in its calculation.
Ultimately, the appellate court stated that they can require a life insurance policy but cannot require the husband to bear the cost alone. Instead, the law requires the parties share the cost of the premiums. The appellate court also stated the husband did not preserve the argument about tax implications because he did not bring it up in the initial case. However, tax implications should normally be considered at the trial court level.
What should I learn from this case?
This case is an example of the complexity of division of retirement assets. It is important to take the type of account into consideration as well as other factors, such as tax implications and life insurance on the asset, if necessary, in the initial phases of the divorce proceeding. A failure to do so can mean you lose the chance to make adjustments in the future.]]>On Behalf of Cross Glazier Reed Burroughs, PChttps://www.cgblawfirm.com/?p=492512023-04-19T22:49:46Z2023-04-19T22:49:46ZIf pets are property, who gets the pet?
The courts will take several factors into consideration when making their determination. The Court can consider who researched and found the dog, who was involved in obtaining the dog for the family, including any interview process and vetting. The Court can also consider who agreed to any contractual provisions for the animal, including if a dog had to be re-homed for any reason. Who entered into any contracts regarding the animal. Whose information is contained on any microchip. These types of considerations will be evaluated when both spouses are physically able to care for the animal after divorce.
If one party gets the pet, the court will consider its value the same way as other property, like a car or piece of art. This may mean one party has to shift assets to the other to help ensure a fair split.
How does this work?
In a recent example, a family purchased a special breed of dog that cost well over a thousand dollars. In addition to the high price tag, the purchaser had to go through an interview process and agree to return the dog to the breeder if they ever needed to rehome the pet. Considering these factors, the court agreed to give the dog a value similar to the purchase price. The court then considered this price with the rest of the divorcing couple’s assets, ultimately awarding ownership of the dog to the wife. In exchange, the wife had to compensate the husband an additional amount to ensure a fair split of assets.
What if the couple does not agree?
In this case, the husband tried to get around the arrangement by arguing the children could bring the dog with them when they came to his home, much in the same way they would an iPad or other personal possession. The wife disagreed, and the matter went back to court.
Upon review, the court noted that it is inundated with child custody disputes and the possibility of also having pet custody disputes to further drain judicial resources was not in the public’s interest. This explanation further supports the current view of pets as property.
The court then reviewed the arguments and provided a decision that answered two main questions:
Who owns the dog?
Can the children bring the dog back and forth?
Regarding ownership of the dog in this case, the appellate court supported the trial court’s decision to award ownership to the wife, rather than some co-ownership arrangement.
Then, diving into the father’s argument that the dog could change households with the children, the court looked at Indiana child support guidelines and noted that they allow children to bring certain items between households. These can include clothing and electronic devices. To qualify, the parent generally purchases these items for the child with funds from child support payments. This was not the case with the dog in question.
Since the law does not allow children to make decisions about transporting the parent’s personal property, the appellate court ruled in favor of the wife, stating she was not required to allow the dog to move back and forth between households.
What does this mean for my case?
Those who are in similar situations can learn from how the court applied the facts in the case above. If you want the ability for the dog to travel to households with the children or another shared pet arrangement if you do not have minor children, it is important to get that stipulation included within the divorce settlement agreement rather than ask the Court to decide the issue. It is also important to agree upon how costs will be paid for the animal and what happens if one party decides they no longer want to or are not able to care for the animal or share time/custody of the animal. Otherwise, absent agreement between the parties, Indiana Courts will determine one or the other spouse will have permanent possession of the animal to the exclusion of the other.
]]>On Behalf of Cross Glazier Reed Burroughs, PChttps://www.cgblawfirm.com/?p=491712023-02-23T15:48:48Z2023-02-23T15:48:48Zimmediate and potential for future tax ramifications before finalizing any asset division agreement.
What types of assets can result in tax ramifications?
Although the transfer of tangible property, like real estate, generally does not result in immediate tax obligations it can lead to future tax bills. As such, it is a good idea to have a clear plan for the asset before deciding to claim it during divorce. If the plan is to sell the asset in the near future, it may be best to sell it or address the sale and tax implications (think capital gains) during the divorce.
Another form of property that can trigger tax obligations during divorce are retirement assets.
How does divorce impact retirement assets?
Those who have some financial acumen likely set up retirement assets to accumulate into a sizeable sum at the time of distribution. These retirement assets are marital property subject to division during divorce. It is not uncommon for this process to lead to disagreement. It can help for those going through the process to have a better understanding of how the court makes its determination.
The court must determine the value of the asset. When valuing a pension, like one with the Indiana Public Retirement System (INPRS), Indiana state law generally requires the court determine the evidence needed to establish the value of the benefit, the date used to assign the dollar value, and the amount of the benefit that was the result of contributions after the final separation date. The court will then use this information to come up with an estimated value of the retirement asset.
Next, the court will look to the best way to divide or distribute pension benefits. Two common methods include an immediate offset or deferred distribution. The immediate offset method involves the court providing the non-owning spouse with their share of benefits in an immediate lump sum. The court could order this payment as a cash award, if available in the marital estate, or in the form of property equal to the value due. Under the deferred distribution method, the court determines the non-owning spouse’s future benefit and orders payment at the time the owning spouse begins to receive the benefits from the administrator. When the retirement asset cannot be separated by a court order such as a Qualified Domestic Relations Order (QDRO), the court may order the beneficiary of the retirement account to provide a portion of the monthly benefit to their ex-spouse.
Courts should also take the tax consequences of the distribution into account. When it comes to retirement benefits like a pension, where taxes are generally due at the time the owner receives benefits in the form of income tax, these consequences are often conjecture — an educated guess of the likely tax rate at the time the beneficiary receives payment. Although it is not possible to get an exact estimation, it is important to use experts in the field to get a well researched guess as to the tax rate at the likely time of distribution. It is also important to consider having life insurance on the life of the spouse receiving the pension benefit owned by the non-owning spouse of the benefit, as often the pension will cease at the death of the owning spouse.
This is a complicated process. It is important to make sure you understand the full impact of any proposal to mitigate the risk of surprises after the divorce is finalized.
]]>On Behalf of Cross Glazier Reed Burroughs, PChttps://www.cgblawfirm.com/?p=491572022-12-28T15:40:44Z2022-12-28T15:40:01ZHow does a post-secondary educational expense order work?
The law grants the court authority to provide this type of coverage at its discretion in a manner that has the family working together as a team to help children attain higher education. The law instructs the court to consider whether each parent can provide financial support to cover these costs.
When looking at the ability of each parent to help with these costs, the law instructs the court to consider:
Income. The court can review the income of each parent to help guide its determination.
Earning ability. The court can also take into account the potential for a parent to bring in an income.
Financial assets and liabilities. Other assets can also impact the court’s determination.
The court can also take the student’s ability to cover these expenses into account when making its determination. This can include a review of any funds from employment, grants, scholarships, education gifts, and education trust funds.
The court may not always find in favor of an order to provide post-secondary support. Examples where they may deny the request include situations where the Free Application for Federal Student Aid (FAFSA) program finds parents are not expected to provide any financial support or a finding by the court that such support would impose a substantial financial burden on either parent.
Is there anything else parents should know about college planning for children after divorce?
It is also important to take tax considerations into account. The Internal Revenue Service (IRS) acknowledges tax benefits to help subsidize the cost of post-secondary education. Indiana state law notes that no one party should disproportionately benefit from these credits. As such, it is important for each family to review their tax planning strategies to make sure they account for these credits in a manner that best aligns with their estate goals.
Indiana state law also encourages the court tie the financial support for post-secondary education to academic performance. If the child does not meet the minimum level of academic performance as set out in the order, the financial support may terminate.
Determinations of college contribution in Indiana is very fact specific to each family and it can take some time to address through the Courts. If you have a teenager who is considering applications to colleges and you live in Indiana, I would consult with a trusted family lawyer to discuss your particular situation and what your obligations may be before you have discussions with your co-parent.]]>