Archive for the ‘Wanzer Edwards News’ Category

Reunited and it Feels so . . . Contractual

April 1st, 2018 by Wanzer Edwards

You have probably heard of a prenuptial or premarital agreement which engaged couples use to establish their rights and responsibilities for property and debt that each is bringing into the marriage.  These agreements allow engaged couples to determine how their property and debt will be divided if they divorce or one of them dies after marriage. But what if you are already married and want such an agreement?

Indiana law allows married couples to enter agreements similar to prenuptials in certain circumstances.  These agreements are called postnuptial agreements.  Originally a postnuptial agreement was only valid if one of the spouses in a marriage had already filed in court for legal separation or divorce.  Spouses already in the process of a divorce or separation could sign a postnuptial agreement in order to settle financial differences as a part of reconciliation of their marriage.  Dismissing the divorce or legal separation would be a requirement of these agreements, which are sometimes called “reconciliation agreements”.

Changes in Indiana law have allowed couples to use postnuptial agreements even if they have not filed for legal separation or divorce.  If a married couple uses a postnuptial agreement to reconcile a marriage which would have ended without the agreement, there is no requirement that one of the spouses actually file for legal separation or divorce.   This can help a couple whose disagreements are about money or property.  If the disagreement is severe enough that it would end the marriage, the parties can solve the disagreement with a contract that sets their legal rights and responsibilities about the money or property issue that has caused the marriage to falter.

It is wise to ask a lawyer to help write a postnuptial agreement to make sure it meets the legal requirements and will be enforceable.  Call Wanzer Edwards for a consultation about your postnuptial questions.

When you work or have other commitments that keep you away from home during your scheduled parenting time, you have to offer that time to the other parent, right?  Well, maybe . . .  The idea seems simple, but the Opportunity for Additional Parenting Time section of the Indiana Parenting Time Guidelines (“IPTG”) (often called the “right of first refusal”) is one of the most misunderstood, misremembered and misinterpreted parts of the Guidelines.

Here’s the actual language of the Opportunity for Additional Parenting Time section:

“When it becomes necessary that a child be cared for by a person other than a parent or a responsible household family member, the parent needing the child care shall first offer the other parent the opportunity for additional parenting time, if providing the child care by the other parent is practical considering the time available and the distance between residences. The other parent is under no obligation to provide the child care. If the other parent elects to provide this care, it shall be done at no cost and without affecting child support. The parent exercising additional parenting time shall provide the necessary transportation unless the parties otherwise agree.”

Now that we know what it says, what does it really mean?  First let’s start with the fact that “the right of first refusal” is not anywhere in there.  In fact, the commentary to this guideline warns that the phrase “right of first refusal” is not really accurate.  To begin with there is no “right” and also no obligation to have the children.  There might be an opportunity to provide care for the children, but framing it as a “right” makes people defensive when they feel that right is being taken away.  In addition, “first refusal” is a bit confusing.  There is no obligation for the parent who cannot be present during his time to tell no one until he has told you about his unavailability.  He can tell others and get a backup care plan in place while he is figuring out if you are available to take the opportunity to spend additional time with the children.

So when does this opportunity need to be offered to the other parent?  First, notice that the language of the guideline begins with the need for child care.  This need for someone to provide care to your child is the triggering event.  That means if your child is seventeen years of age and you will be gone even all day, you are unlikely to need child care.  The age at which children can be left alone and for what period of time is not clearly defined, and depends on the circumstances.  The general rule is if you would ask a neighbor, friend’s parent or grandma to watch the child while you are gone, offer that time to the other parent.  If not, there is no obligation to offer the time.

Also notice that the rule specifies that if you need child care from someone other than a responsible household family member, you need to offer the time to the other parent.  Household family member is a person related by blood or marriage who lives in your household.  This includes a step parent, a sibling or grandma if she lives with you. Grandma staying in your spare room for a week doesn’t count.  She’s not living with you, she’s just visiting.

Notice a couple of other details about the guideline.  First, the opportunity must be offered if it is reasonable given the time and distance involved.  If you live an hour away from your co-parent, a brief absence of your co-parent might not trigger the opportunity for additional parenting time provision because it makes no sense to drive one hour to provide care for thirty minutes.  In addition, note that the guideline requires the parent who is providing care while the other is unavailable must do all the driving to make that extra time happen.

Finally, remember that the opportunity for additional parenting time only lasts as long as the other parent is unavailable.  When the other parent is back, the additional time immediately ends.  There is no ability to turn the extra time into an extra overnight or any additional time because it is not your parenting time.

Few things push the anger button faster than feeling like your time with your child is being taken away.  Co-parents argue about parenting time and can often feel significant anxiety about discussing the schedule with one another.  Children can also feel the anxiety of not knowing where they will be on a particular day.  This unpredictability can lead the whole family to unhappiness and stress.

Did you know that the Indiana Parenting Time Guidelines suggest the creation of an annual parenting time calendar each year?  This suggestion is somewhat hidden in the Commentary section of the Guidelines’ Preamble, so it’s possible it slipped by you.  The Commentary suggests that it is helpful for parents to create a year-long parenting time calendar.  “Forecasting a year ahead helps the parents anticipate a plan for holidays, birthdays and school vacations.”

While creating a year-long parenting time calendar might sound like a lot of work, it is simpler than it seems.  Begin by logging the regular parenting time onto a paper calendar with a pencil (there are numerous printable calendars online).  Use your court order for reference and record the normal rotation of days and weekends for the whole year by writing “Dad” or “Mom” on particular days.  Next pull out the school corporation calendar to see where the school year ends in the spring and where the next school year begins in the fall.  Mark those dates.  Erase the normal weekend and parenting time rotation contained between these two dates in preparation for adding a summer schedule in a moment.

Your next step will be to review your court order and/or the Indiana Parenting Time Guidelines for the schedule of holidays and special days.  For each of these days or periods of time, find the corresponding date on the calendar.  Erase any regular parenting time notation that is currently on a holiday or special day date and replace it with a notation giving those dates to the parent who will exercise the holiday time.  Laying your holiday time on top of your regular parenting time like a transparency that changes only the holiday and special days dates while leaving all other regular parenting time alone helps avoid confusion about whose parenting time it is when holidays end.  This is important because the Indiana Parenting Time Guidelines specify that the regular weekend rotation should continue even when holiday time gives a parent three weekends in a row.  Instead of shuffling the schedule or trying to find make up time, the regular schedule simply resumes as if the holiday had not occurred.

Finally it’s time to return to the summer break and enter a summer schedule. When distance is not a factor and unless your specific court order says otherwise, the non-custodial parent has the ability to select the summer schedule provided that holiday and special day parenting times are honored and that the election is made by April 1st.  Of course there is no requirement that the non-custodial parent wait until April 1st to make a summer schedule election.  In fact, it is helpful to both parents to have the summer schedule set as early as possible.

Once the annual calendar is done, both parents should have a copy.  Hanging it on the refrigerator for the family to see is a good idea.  Instantly there is less confusion as to where a child will be on a particular weekend or date. Plans can be made and everyone can relax and feel confident that the schedule is set.  The effort made to sketch out the year on paper is worth it to reduce arguments and confusion.  After all, peaceful co-parenting benefits the whole family.

Bill and Jane are divorced. Bill is court ordered to pay Jane child support. Jane makes the private school tuition payments for their son, Johnny, and Bill has to reimburse Jane for half. Bill has to pay for Johnny’s travel baseball and basketball expenses, and Jane has to reimburse Bill for half. Bill carries Johnny on his health insurance at work, and, after Jane pays the first $1200.00 in annual expenses, Bill has to reimburse Jane for half of any additional expenses, such as the braces Johnny is getting put on this year. Jane has Johnny’s phone included on her cellular phone plan, and Bill reimburses her for half of the monthly payment. Bill has already agreed to carry Johnny on his automobile insurance plan when Johnny begins driving, and Jane has to reimburse Bill for half of the expense.

That sounds like a nightmare, doesn’t it?  However, the above scenario is pretty typical. Without more information, a scenario like this can cause more questions than it answers.  When are these payments due? How soon after the expense is paid should the other parent get reimbursed? How will the parent who has to pay know if the expense actually was paid?

For most divorcing couples with children, there is vastly more money changing hands on a regular basis than weekly child support.  Children are expensive, and many of their expenses are not covered by child support alone.  This includes private school, extracurricular activities, and the kinds of items that are technically considered luxuries by a court but are necessities to the teenagers using them: cell phones and car insurance.  Parents can avoid conflict down the road with a carefully written settlement agreement that covers not only ALL of the current expenses related to the children, but other expenses that may not be presently incurred, but which will occur at some point.  Further, your divorce attorney should include not only how much each parent will pay of these expenses, but which parent will advance the costs, which parent will reimburse, and a timeline for doing so.

Back to Bill and Jane.  What should they do to streamline and simplify all the payments?  One suggestion might be for them to have a spreadsheet in Google Docs that they use to list all of the expenses, including dates paid. On the 5th of each month, they can exchange receipts for the previous month and edit their spreadsheet to reflect all payments. By the 15th of the month, to allow for any questions, Bill and Jane can settle up based on who owes the other what.  This way, only one parent is paying the other, one time per month. There are no “stale” bills and receipts, everything is paid, and Bill and Jane get along beautifully because each feels respected and that the other is pulling his/her weight. This means that Johnny is thriving and feels no conflict or tension between his parents, which is better than anything their money could buy.

If you feel like your settlement agreement or court order could use some work to help streamline child-related payments, and/or getting reimbursed feels like a battleground, contact Wanzer Edwards.