Family Law Prof Blog

Editor: Margaret Ryznare
Indiana University
Robert H. McKinney School of Law

Wednesday, March 30, 2016

Indiana Governor Signs Abortion Bill With Added Restrictions

From The New York Times:

Indiana’s governor signed a bill on Thursday that adds broad limits to women’s access to abortions, banning those motivated solely by the mother’s objection to the fetus’s race, gender or disability, and placing new restrictions on doctors.

The law, which passed both chambers of the Republican-controlled General Assembly with large majorities, builds on Indiana’s already restrictiveabortion rules, and was cheered by anti-abortion groups that had encouraged Gov. Mike Pence to sign it.

“We are pleased that our state values life no matter an individual’s potential disability, gender or race,” Mike Fichter, president and chief executive ofIndiana Right to Life, said in a statement. “We also believe that the other measures in the bill are positive steps forward for providing dignity and compassion.”

The bill is among several limiting abortion that have passed conservative legislatures in recent years, but the sheer number of restrictions in Indiana’s legislation made it distinct.

In addition to holding doctors liable if a woman has an abortion solely because of objections to the fetus’s race, sex or a disability, like Down syndrome, the law restricts fetal tissue donation and requires doctors performing abortions to have admitting privileges at a hospital or to have an agreement with a doctor who does.

“Seeing them all in one place, that is very striking,” said Dawn Johnsen, an Indiana University law professor who has been an abortion rights advocate. “It’s like the kitchen sink: Everything that isn’t already in the law. And the law is already really restrictive.”

Mr. Pence, a Republican, said he signed the bill because he thinks “that a society can be judged by how it deals with its most vulnerable — the aged, the infirm, the disabled and the unborn.”

The bill, he said in his signing statement, “will ensure the dignified final treatment of the unborn and prohibits abortions that are based only on the unborn child’s sex, race, color, national origin, ancestry or disability, including Down syndrome.”

Read more here.

March 30, 2016 in Abortion | Permalink | Comments (0)

New Utah Abortion Law

From CNN:

Utah will now require doctors to provide anesthesia to women having abortions at 20 weeks of pregnancy or later.

The law, which experts say is the first of its kind in the nation, is based on the scientifically disputed notion that a fetus can feel pain during the procedure.
 
"The governor is adamantly pro-life," said a statement from Gov. Gary Herbert's office. "He believes in not only erring on the side of life, but also minimizing any pain that may be caused to an unborn child."
 
Read more here.
 

March 30, 2016 | Permalink | Comments (0)

LGBT Parenting

From Huffington Post:

As the election year progresses, many candidates in both parties and at every level will say it. Child-welfare professionals work mightily to make it a reality. Our country’s laws and policies are intended to promote its essential truth: Every child deserves to grow up in a safe, permanent and loving family.

Yet tens of thousands of children in the U.S. spend too much of their young lives in temporary (i.e., foster) care, often unable to return to their original families but without sufficient prospects for moving into new ones. At the same time, the number of LGBT adults serving as guardians and foster parents (many of them wanting to adopt) grows daily. And this reality has raised hopes among children’s advocates from coast to coast who see a promising, expanding pool of prospective parents for children who need them.

Even though marriage equality is now the law of the land, however — and even as we see positive developments like the recent Supreme Court decision supporting gay adoption rights - policies and practices are being promoted around our nation that impede (and sometimes prevent) members of the LGBT community from becoming parents to these waiting children. Other state efforts go even further, essentially representing a broader assault on LGBT people and their rights.

Read more here.

Hat Tip: NC

March 30, 2016 | Permalink | Comments (0)

Tuesday, March 29, 2016

Brazil Seizes Abortion Drugs Sent to Women Living in Fear of Zika

From Los Angeles Times:

The messages from the expectant mothers in Brazil resonate with desperation.

“I'm thinking of doing the worst,” one woman wrote when her order for abortion medication failed to arrive. “I really need help. I can no longer eat, and I cry all the time.”

The messages were sent to an international advocacy group that had been providing abortion-inducing drugs free of charge to expectant mothers who fear that the Zika virus could cause severe birth defects.

Now, however, the group has temporarily suspended its operations in the country because Brazilian authorities have confiscated the drugs in the mail. Abortion is prohibited in most instances in Brazil, and the drugs are illegal.

“It's not fair to tell women they are going to get a package, and it will not arrive to them,” said Leticia Zenevich, a spokeswoman for the advocacy group, Women on Web. “It's very tragic.”

Even in the face of the Zika virus, providing pregnancy-ending alternatives to women in a country where abortion is in most cases illegal is proving to be nearly impossible, Zenevich said.

Women on Web, a Canadian group that is based in the Netherlands and operates worldwide, said in February that it had sent “dozens of packages” to women in Brazil but only two packages had arrived. The rest were apparently seized. The packages provided by Women on Web contained misoprostol and mifepristone, which can end a pregnancy.

Authorities acknowledge that they are confiscating abortion drugs sent in the mail because the medicines are banned in Brazil.

Read more here.

March 29, 2016 in Abortion | Permalink | Comments (0)

Monday, March 28, 2016

US Lacks Strategies to Lower Child Abuse Deaths

From ABC News:

The United States lacks coherent, effective strategies for reducing the stubbornly high number of children who die each year from abuse and neglect, a commission created by Congress reported Thursday after two years of sometimes divisive deliberations.

According to federal data, the number of such deaths has hovered at around 1,500 to 1,600 annually in recent years. But citing gaps in how this data is compiled, the report suggests the actual number may be as high as 3,000 a year.

Commission chairman David Sanders said a goal of zero maltreatment deaths was realistic.

"We looked at the airline industry — no one accepts a plane crash anymore. We can get that way with child fatalities," said Sanders, executive vice president of Casey Family Programs.

The report made dozens of recommendations, including expanding safe-haven programs for abandoned infants and enlisting a broader range of community organizations to help often-overburdened child protection service workers.

"We need a system that does not rely on CPS agencies alone to keep all children safe," the report said. "Other systems become key partners, including the courts, law enforcement, the medical community, mental health, public health, and education. Even neighbors who come into regular contact with young children and families are part of a public health approach."

Still, the commission, comprised of six members appointed by Congress and six by President Barack Obama, failed to reach consensus on some issues. Two members declined to approve the final report and wrote dissents criticizing one of the major proposals.

Read more here.

March 28, 2016 in Child Abuse | Permalink | Comments (0)

Sunday, March 27, 2016

Could Abolishing Marriage Licenses in Alabama 'Legalize Bigotry?'

From AL.com:

A bill to do away with marriage licenses in Alabama is intended to standardize and streamline the practice statewide for all couples, the sponsor of the legislation said Friday.

The proposal would abolish state-issued marriage licenses received from county probate offices and instead require couples to file a form recording their marriage.

"Basically it's to calm these troubled waters that we're in," said the bill's sponsor Rep. Greg Albritton,  R-Bay Minette. "Things have been confusing and in an uproar, and lots of constitutional arguments have been going on for the last few years. What this bill will do is resolve any and all of those issues, I believe."

However, opponents say the bill is unnecessary and even detrimental.

"I see no benefit, and I see it as a very narrow-minded reaction to the U.S. Supreme Court ruling regarding same-sex marriages," Montgomery County Probate Judge Steven Reed said. "I think it's unfortunate that this is taking up time in the legislature when there are many more pressing issues for this state to be working out."

Brian Huff, an attorney and former family court judge, said the legislation is political, not practical.

"I think the legislation that's been dropped this year is nothing more than legalizing bigotry," he said. "That's all it does – it allows people who want to discriminate against same-sex couples to do so, and it gives them a legal basis for doing it."

Read more here.

March 27, 2016 in Marriage (impediments) | Permalink | Comments (0)

Saturday, March 26, 2016

England, US Approach Alimony Differently

From Boston Herald:

Q: I’m a citizen of England. Before I got married, I acquired a substantial amount of property through hard work and inheritance. I married an American woman. We jointly own a home on Nantucket in which we now live about half the year. We have other assets in the United States. The other half of the year we live in the United Kingdom.

Our 30-year marriage is at an end. The questions are: Should I file for divorce in Massachusetts or in England? Should I stop working and let the executive vice-president take over the company?

A: This column addresses only the alimony issues. Important tax issues will be covered next Sunday.

Both English and Massachusetts law requires the judges to make a complete and full divorce. As discussed in last Sunday’s column, both jurisdictions achieve half that goal by ordering a final division of property. The other half involves awarding alimony. Of course, if there were child-related issues — not mentioned by you — there would be additional factors.

In England, if you have enough assets to make a clean break, the judge will order you to pay a lump sum of “support” to your wife. That lump sum is determined by first deciding the recipient’s “reasonable needs.” About 2,000-some English judges, having found the payor’s earning capacity is also a marital asset, determined a lump sum by using a “Yardstick of Equality.” In 2008, the English appellate court started to push back against that “yardstick.” So that issue is in flux.

Once the annual payment is determined, the English judge will consider “The Duxbury calculations.” Those tables assume a 3.75 percent investment-rate-of-return plus a 3 percent annual increase in the capital. Because those rates are higher than the reality of the current market, not much, if any, weight is currently given to these tables.

Read more here.

March 26, 2016 in Maintenance (alimony) | Permalink | Comments (0)

Friday, March 25, 2016

Transracial Adoption Support Systems Scarce Despite Difficulties

From NBC News:

Catherine Johnston and her husband Paul were living in Oakland, California, when they decided to adopt a child, choosing to adopt from China in part because Paul's family had come from the country. Assuring the Chinese adoption officials that their extended family would provide an ethnically and culturally familiar home back in Oakland put them on the fast track to adoption.

While the exact terms were never spelled out for Johnston, adoption wait times from China for parents with Chinese heritage tend to be a year shorter, and studies have shown that children growing up in an ethnically and culturally-familiar home struggle less with their own ethnic identity.

Johnston, who is white and an adoptee, credits Paul's family for allowing her daughter to grow up avoiding many of those challenges.

"I think I always knew that it is better for the children to be in a same-race environment, and we could provide that," Johnston, who brought her daughter home in 2008, told NBC News. "My daughter is very identified as a Chinese person, and she doesn't seem to have any qualms about that."

Families adopting transracially — when the child and parents are of different races — may immerse the child in the parents' culture while failing to expose them to their own ethnic heritage, leading to a struggle with identity as the child grows and are treated as an outsider.

"Children of color have been historically underserved in adoption and foster care, and it plays out in a number of ways," Beth Hall, executive director and co-founder of Pact, a transracial adoption support organization based in California, told NBC News. "Many of those kids who are placed with white families may or may not understand the contextual meaning of being a person of color in America."

Read more here.

March 25, 2016 in Adoption | Permalink | Comments (0)

Thursday, March 24, 2016

What Others Are Saying About Indiana's Abortion Bill

From Indianapolis Star:

The Indiana lawmakers voted last week to send Gov. Mike Pence legislation that would ban abortions sought because a fetus is diagnosed with Down syndrome or another disability.

The bill also prohibits abortions when they are sought based on the gender or race of a fetus.

Since, national and local websites have covered this controversial bill. Here are a few headlines from around the country:

Jezebel: Yet another garbage abortion bill has been passed, this time in Indiana

" 'Any other disability' is a broad spectrum that might force a woman to bring a baby to term who won't survive long past birth, potentially in great suffering, even if the pregnancy is high risk for the mother."

The Christian Post: Down syndrome babies will be protected from abortion with new Indiana law, Gov. Pence expected to sign

Pro-life voices, such as Indiana Right to Life President and CEO Mike Fichter, praised the bill.

"We are truly thankful for the passage of this historic legislation by the Indiana House and applaud the new civil rights protections this bill creates for unborn children, as well as the new provisions this bill establishes for the humane final disposition of aborted babies,' Fichter said, according to LifeNews.

Salon: While America is distracted by the Trump freakshow, Indiana just passed one of the most restrictive abortion bills in the nation

"It’s about Republican men asserting control over the bodies of women — scolding and intimidating them by proxy, while also rubbing women’s noses in their own alleged participation in infanticide."

LifeSiteNews: Indiana passes bill banning abortion for Down syndrome, gender, race

Cathie Humbarger of Indiana Right to Life told LifeSiteNews, "We certainly appreciate the action taken by the Indiana legislators, which protects the innocent lives of unborn children that have an adverse diagnosis, or whose lives are threatened because of their race or gender. And for the respectful disposition of the bodies of aborted babies, keeping them out of landfills."

Read more here.

March 24, 2016 in Abortion | Permalink | Comments (1)

Pay Equity at Amazon

From USA Today:

After fighting not to release details of what male and female employees are paid, Amazon has done an about-face and made the figures public.

“I assume they looked at the numbers and they were happy with the results and now they’re willing to be transparent about it and accountable,” said Natasha Lamb, spokeswoman for Arjuna Capital in Boston, which had been leading efforts to force the disclosure.

In a statement, Amazon (AMZN) said that a review of its entire U.S. staff, including warehouse workers, found that women’s compensation in 2015 was 99.9% of men’s in equivalent jobs. Further, minorities make 100.1% of what white workers earn, Amazon said.

“There will naturally be slight fluctuations from year to year, but at Amazon we are committed to keeping compensation fair and equitable,” the statement said.

Read more here.

March 24, 2016 | Permalink | Comments (0)

Wednesday, March 23, 2016

Texas Abortion Law has Women Waiting Longer, and Paying More

From The New York Times:

When Amy found out around Christmas that she was pregnant, she wasted no time seeking an abortion. Her husband had just lost his job and the couple had been kicked out of their house, forcing their family of five to move in with his parents.

“It would have been the absolute wrong thing to do, to have another baby right now,” said Amy, who is 32. “So I started calling around pretty quickly.”

But she found that getting an appointment for an abortion, even in one of the country’s largest metropolitan areas, proved almost as stressful as the unwanted pregnancy. The number of abortion clinics in Texas has shrunk by half since a 2013 state law imposed new regulations that many said they found impossible to meet. When Amy called the two clinics here just after New Year’s, and a third in Dallas, the earliest available appointment was on Jan. 22.

The United States Supreme Court, in one of the most closely watched cases of the year, is considering the constitutionality of that law and whether it creates too much of a burden on women seeking an abortion.

With the judges apparently deeply splintered, the decision, expected in June, could affect millions of women, though the court might send the case back to lower courts to further study the impact of the clinics’ closings. Similar laws are being challenged in other states.

With no possibility that President Obama’s Supreme Court nominee, Judge Merrick B. Garland, will be confirmed anytime soon, the court might also split 4 to 4, which would let stand an appeals court ruling largely upholding the Texas law but would set no national precedent.

Here in Texas, women are experiencing what it means to navigate the landscape created when roughly half of the state’s 41 abortion clinics closed, with some facing an unnervingly long wait and others traveling hundreds of miles, sometimes leaving the state, for the procedure.

When Amy, who like several others interviewed asked that her last name not be used to protect her privacy, went to Whole Woman’s Health here for her sonogram and abortion over two days in January, she was shocked by how crowded the waiting room was and by how long she had to wait for the procedure: about five hours.

But mostly, she said, she was relieved to have gotten in at all. Her cellphone had broken a few days earlier, causing her to miss a few calls from a clinic employee trying to confirm her appointment. When Amy realized that she had missed the calls, she broke into sobs as she frantically called back.

Read more here.

March 23, 2016 in Abortion | Permalink | Comments (0)

Fostering & the Indian Child Welfare Act

From ABC7 News:

A part-Choctaw girl was removed from her foster home in Santa Clarita on Monday to be sent to live with extended family in Utah.

It was a powerful and moving moment as 6-year-old Lexi was seen pleading for her foster father as she was taken away by a Los Angeles County Department of Children and Family Services agent.

Rusty Page, the man Lexi has known as her only father for most of her young life, said his little girl called him her "Superman" and begged to him saying, "Don't let them take me away."

Rusty and Summer Page took in Lexi four years ago to live with them and their three children and want to adopt her. The girl knows the Pages as her mother and father.

However, Lexi will be sent to live with extended family members in Utah because she is 1.5 percent Choctaw.

The girl's case falls under the Indian Child Welfare Act, a federal law passed in the 1970s aimed to protect the best interests of Native American children.

Read more here.

Hat Tip: NC

March 23, 2016 | Permalink | Comments (0)

Tuesday, March 22, 2016

Americans OK Gay Marriage, but Cautious on Divorce

From NBC News:

Americans are more accepting of gay relationships and couples living together before marriage — but they've grown less comfortable with divorce, a new survey shows.

The government periodically asks thousands of teens and younger adults what they think about changes in U.S. family relationships. The results released Thursday by the National Center for Health Statistics indicate a shift over a decade on a range of topics. But most surprising was what they said about divorce.

Asked if divorce is the best solution when a marriage is on the rocks, 38 percent of women agreed, down from 47 percent a decade earlier. For men, it was 39 percent, down from 44 percent.

Divorce in the U.S. has become more common through the generations, and there's an assumption that acceptance would be holding steady or perhaps increasing, some experts said.

There could be several explanations for the decline, said Wendy Manning, a family and marriage researcher at Bowling Green State University in Ohio.

Marriage rates are down and people are older when they first get married. So those who do marry are more likely to be in it to win it, she said.

"Marriage is becoming so selective that maybe people think if you achieve this status, you don't want to end it," said Manning.

Read more here.

March 22, 2016 in Divorce (grounds) | Permalink | Comments (0)

Monday, March 21, 2016

Supreme Court Restores Visitation Rights to Lesbian Adoptive Mother

From The New York Times:

In a pair of unsigned opinions, the Supreme Court on Monday restored the rights of an adoptive mother who had split with her lesbian partner and reversed a murder conviction tainted by prosecutorial misconduct.

The adoption ruling reversed one by the Alabama Supreme Court, which had refused to recognize the woman’s adoptions of three children, which had been granted by a Georgia court in 2007.

The woman, identified in court papers as V.L., said she was overjoyed.

“I have been my children’s mother in every way for their whole lives,” she said in a statement. “I thought that adopting them meant that we would be able to be together always. When the Alabama court said my adoption was invalid and I wasn’t their mother, I didn’t think I could go on.”

The United States Supreme Court’s opinion, which had no noted dissents, said the Alabama court had violated the Constitution’s “full faith and credit” clause. “A state may not disregard the judgment of a sister state because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits,” the opinion said.

The two women in the case, V.L. v. E.L., No. 15-648, were in a committed relationship that started in 1995 and lasted about 17 years. They shared a last name.

One of them, identified in court papers as E.L., gave birth to a child in 2002 and to twins in 2004, both times by insemination from an anonymous donor. They raised the children together in Alabama until they broke up in 2011, and the adoptive mother, V.L., continued to see the children for a time afterward.

When a dispute about the visits arose, V.L. turned to an Alabama court, which granted her visitation rights based on the Georgia adoption judgment. The Alabama Supreme Court reversed that, saying in an unsigned opinion that the Georgia judgment was not entitled to the “full faith and credit” ordinarily required by the Constitution “to the public acts, records and judicial proceedings of every other state.”

Read more here.

March 21, 2016 in Visitation | Permalink | Comments (0)

Sunday, March 20, 2016

Missouri Law Protects Children From Abuse By Children

From STLToday.com:

Last year, after testifying before Missouri legislators about her daughter’s alleged sexual abuse by another child, Becky Wekenborg’s Facebook page began to ping with messages from strangers asking for help.

She knew then, well before the bill expanding the scope of the Children’s Division was passed into law, that the state might be tackling something bigger than policymakers projected.

“Until people started contacting me, I didn’t realize that there was such a big problem,” she said. “I was just amazed at all these people who reached out to me who wanted advice and knew my name because of what my daughter had been through.”

In August, the new state law went into effect mandating that the Children’s Division perform family assessments when it receives child abuse hotline calls alleging inappropriate sexual behavior perpetrated by children on other children.

Prior to that, the state was only mandated to investigate allegations of child abuse involving people who have “care, custody or control” of a child. That ruled out state intervention in most complaints against minors and essentially excluded all children under 14.

Child advocates lauded the change. But even they failed to predict the extent of demand for the new services.

Read more here.

March 20, 2016 in Child Abuse | Permalink | Comments (0)

Saturday, March 19, 2016

Alimony Overhaul Hits Florida Governor's Desk

From The News-Press:

Southwest Florida family law attorneys said legislation that rewrites Florida's divorce statutes, which is awaiting the attention of Gov. Rick Scott, could have major impacts positive and negative on alimony, child-support payments and time-sharing of children.

The proposal, the second time lawmakers have sent what is basically an alimony overhaul to Scott, sets out a formula for judges to use when deciding alimony payments and is without a retroactivity provision that the governor blamed in part for his 2013 veto.

The bill replaces permanent alimony with new formulas based on the length of the marriage and the spouses' incomes. Those formulas help set the amount and duration of the payments.

It also advises judges to implement equal time-sharing of children between parents. But backers said it allows judges discretion to deviate from the time-sharing and alimony formulas depending on circumstances.

 

"Its kind of a good thing. There's been no structure for alimony,"  said attorney Augustin "Gus" Simmons of the Simmons Law Firm in Fort Myers of the overhaul legislation.

"It gives attorney's some sort of ability to predict ranges to their clients," he said. The current statute defining alimony says nothing about amounts, Simmons said, leading to lawyers hiring out forensic accountants to divine just what people involved in their cases make.

He said that the doing away of permanent alimony isn't surprising as changes in society have taken hold. "Permanent alimony has been on the outs for some time," he said. "Marriages are not lasting as long, people are getting married later in life."

Read more here.

March 19, 2016 in Maintenance (alimony) | Permalink | Comments (1)

Friday, March 18, 2016

Florida Legislature Repeals Cohabitation Ban

From Fox 40:

Couples shacking up together would no longer be breaking the law under a bill passed by the Florida Legislature.

The Florida House on Wednesday voted 112-5 to repeal the state’s largely unenforced prohibition on cohabitation. The bill heads now to the desk of Gov. Rick Scott.

Under a law that has been on the books since 1868, a man and woman living together could be fined $500 and locked up in jail for 60 days. According to 2014 census data, there are nearly 438,000 unmarried male-female couples among 7.3 million Florida households.

The bill seeks to repeal the entire statute covering married or unmarried men and women “engaging in open behavior that is gross lewdness and lascivious.”

Florida is one of only a handful of states that still has a law making cohabitation illegal.

Read more here.

March 18, 2016 in Cohabitation (live-ins) | Permalink | Comments (0)

Thursday, March 17, 2016

Uganda Tightens Foreign Adoption Rules to Thwart Child Trafficking

From Reuters:

Child rights campaigners in Uganda have welcomed a new law that restricts fast-track foreign adoptions in which children - often with living parents - can be whisked overseas in a matter of days.

  Lawmakers passed a bill this week that requires foreigners seeking to adopt children to live in the east African country continuously for at least one year before applying and bars them from the quicker route of claiming legal guardianship.

"This ends the long wait for a proper legal regime that addresses the welfare and rights of our children," said member of parliament Bernard Atiku, who initiated the bill.

Hundreds of Ugandan children have been adopted in recent years by foreigners, mainly Americans, some of whom have sidestepped restrictions by winning guardianship within days and then completing the adoption process back home.

Atiku said several children had been trafficked out of the country with no mechanism in place to trace where they end up or who they end up with.

"Foreigners have been manipulating the guardianship provision to take children out of the country," he said.

A Thomson Reuters Foundation investigation in May 2015 revealed widespread corruption in Uganda's intercountry adoption process with Ugandan parents bribed, tricked or coerced into giving up their children to U.S. citizens and other foreigners.

Demand for children had fueled trafficking rackets and a mushrooming network of unregistered childcare institutions through which children were primed for adoption.

 

Read more here.

March 17, 2016 in Adoption | Permalink | Comments (0)

Wednesday, March 16, 2016

Ashley Madison Users Volatile in Business Too

From the Wall Street Journal:

A surprising number of Ashley Madison users registered for the service using their work email. After anonymizing the data, the four economists matched email addresses from the hacked data with corporate email domains. To filter accounts set up by mistake, or as a practical joke, they focused on accounts where there was activity, such as a chat session getting initiated. And they excluded domains that are often used by people not employed by the company that owns the domain, like “yahoo.com.”

Using a ratio of the number of Ashley Madison accounts registered under a company’s domain to the number of people working at the company, the economists looked at how the data matched up with a measure of corporate responsibility produced by MSCI.  Not surprisingly, companies with more Ashley Madison users scored worse. What’s more, the economists found that companies with more Ashley Madison users experienced more Securities and Exchange Commission enforcement actions for accounting misstatements. The results held even after the economists controlled for factors such as what industry a company was in.

But it was when the economists looked at other measures that the things got interesting.

They found companies with more Ashley Madison users tended to have higher debt loads, more return volatility, were closer to defaulting on their debt and had higher credit spreads. Those are all hallmarks of a higher penchant for risk taking. And while investing in companies that take more risk isn’t for everyone, the economy would be poorer if there weren’t some firms swinging for the fences.

Read more here.

March 16, 2016 | Permalink | Comments (0)

Tuesday, March 15, 2016

Indiana Supreme Court Changes Burden of Proof on Child Support Tax Exemptions

From Indianapolis Bar Association:

Prior to January 1, 2016, the Indiana Child Support Guidelines, case law and the Indiana Statute on granting of tax exemptions placed the burden of proof on different parties.

The case law was originally set in the case of Eppler v. Eppler, 837 N.E.2d 167 (Ind. App., 2005, trans. denied 2006), which interpreted the then existing child support guidelines to automatically grant the child tax exemption to the custodial parent unless the court makes a finding based upon evidence presented. This case made it clear that at that time, the burden was on the noncustodial parent to prove that he or she was entitled to the exemption based upon factors set out in the guidelines.

In 2011, the Indiana General Assembly added a provision to the Indiana code addressing tax exemptions. As you can see, the statute was neutral as to who received the exemption and the law required the court to make a finding as to who should receive the exemption. The statute used the same factors but did not presume who would receive the exemption.

IC 31-16-6-1.5 Claiming child for tax purposes; considerations; conditions
Sec. 1.5. (a) A court shall specify in a child support order which parent of a child may claim the child as a dependent for purposes of federal and state taxes.

When the Supreme Court was revisiting the child support guidelines, a committee of the IndyBar of which I was the subcommittee chair pointed out the conflict between the statute, the case law, and the guidelines. The new guidelines now bring the statute and the guidelines into agreement effectively overruling the presumption in the case law and prior guidelines.

The best practice now is to present evidence to show your client should receive the exemption under the guidelines. If the decree or order is silent, then you revert to the federal law.

Read more here.

March 15, 2016 in Child Support Enforcement | Permalink | Comments (0)