divorce

February 24, 2017

Missouri Court Rules on Frozen Embryo Dispute

In late 2016, The Missouri Court of Appeals upheld the decision that pre-embryos were “marital property of a special character” and could not be used to have a child without the consent of both parties. The parties to this case are Jalesia McQueen and then husband Justin Gadberry, who decided to freeze Gadberrys’ sperm just before he was deployed to Iraq. While Gadberry was overseas, the couple discussed In Vitro Fertilization (“IVF”) and just months later two of the four embryos were implanted in McQueen’s uterus. McQueen gave birth to twin boys and froze the other two embryos at a cryobank facility. The couple later divorced and a dispute regarding the disposition of their frozen embryos arose during their divorce proceedings. This dispute quickly turned into a legal case to determine when exactly life begins and the legal status of frozen embryos. The Court of Appeals upheld the trial court’s decision that frozen-embryos cannot be used without the consent of both McQueen and Gadberry. The Court further ruled that frozen embryos are not considered persons. Rather, they are considered the property of the two parties involved.

Judge Robert M. Clayton III wrote the majority opinion, stating that awarding joint custody “subjects neither party to any unwarranted governmental intrusion but leaves the intimate decision of whether to potentially have more children to the parties alone.” The court made it clear in the decision that they were not determining when life begins, but just interpreting the legal status of embryos in Missouri. The Court ruled that embryos have no legal claim to the same protections as a human being under Missouri law, and that forcing the husband to have a child that he doesn’t want to have violates his privacy rights. McQueen is planning on appealing the decision. After the ruling was issued, she stated “It’s part of me, and what rights do the judges or the governments have to tell me I cannot have them?”

Tim Schlesinger, Gadberry’s attorney, commented “I think today’s ruling is a victory for individuals against unjustified government intrusion.” Schlesinger hopes that this case will provide guidance to other states that are facing similar issues. This issue will likely arise in numerous states at some point, as IVF becomes more prevalent. Click here to read our blog post about the legal status of frozen embryos to learn more about where several states stand on this question.

July 31, 2015

Spotlight on ICSG: Controlled Expenses

by Harden Jackson, LLC

As family law attorneys, we are frequently asked what types of expenses child support is supposed to cover. Although generally child support is to be used for expenses benefiting the child, the Indiana Child Support Guidelines (ICSG) give several examples of expenses that are called “controlled expenses” that are to be paid by the custodial parent, who is usually the parent receiving child support (see “Definition – Controlled Expenses” from ICSG below). Generally, “controlled expenses” are everyday expenses like school lunches and standard items that are not necessarily duplicated by parents such as clothing and backpacks. Parents should note that the guidelines do not give a definitive list of everything that could be considered a controlled expense, so some communication may be required between parties and counsel if there is a question about whether an expense falls into this category. Common situations where an issue arises occur when the children attend private school or require school supplies that are more expensive than normal. Parents in joint physical custody arrangements may also have to work together as their parenting time arrangement means that there is no designated “custodial parent.” In these situations, we usually counsel clients to designate a parent to serve as the custodial parents for the purpose of controlled expenses, or we encourage the parties to reach their own arrangements with respect to how controlled expenses are divided. As with many other advantages to informal settlement and mediation, the ability to reach agreements outside of court allows parties to tailor agreements to their children’s specific needs. Furthermore, addressing these types of issues in child support agreements may reduce disputes and litigation fees down the road.

Definition – Controlled Expenses: This type of expense for the child(ren) is typically paid by the custodial parent and is not transferred or duplicated. Controlled expenses are items like clothing, education, school books and supplies, ordinary uninsured health care and personal care. For example, the custodial parent buys a winter coat for the child. The noncustodial parent will not buy another one. The custodial parent controls this type of expense. The controlled expenses account for 15% of the cost of raising the child. The parenting time credit is based on the more time the parents share, the more expenses are duplicated and transferred. The controlled expenses are not shared and remain with the parent that does not get the parenting time credit. Controlled expenses are generally not a consideration unless there is equal parenting time. These categories of expenses are not pertinent for litigation. They are presented only to explain the factors used in developing the parenting time credit formula. The percentages were assigned to these categories after considering the treatment of joint custody by other states and examining published data from the Bureau of Labor Statistics’ Consumer Expenditure Survey.

What do you think? Have questions about controlled expenses? Tweet us @HARDENJACKSONLAW.

July 27, 2015

Spotlight on ICSG: The 6% Rule

by Harden Jackson, LLC

Division of medical expenses is always a big issue for our clients. Generally, the issue of coverage and insurance premiums is included in child support calculations because the party who provides insurance coverage is entitled to credit for the weekly amount paid. Therefore, the biggest remaining issue between parents is how to divide uninsured medical expenses for the children. When parties can agree, they have the ability to be flexible about how they want to divide these expenses, and there are many good reasons why parties would want to tailor the way they divide these expenses to their specific situation. In some cases, one party has supplemental coverage, a Health Savings Account, Flex Spending account, or other employer benefits that make sense to exhaust before dividing expenses between parties. Parents of children with specific medical issues may also need to specifically plan how uninsured expenses will be divided throughout the year.

When parents cannot agree or do not believe their case requires special accommodations, we advise clients of the 6% Rule, which is how the Indiana Child Support Guidelines ICSG suggest dividing uninsured medical expenses. While there is no guarantee that a judge would order parties to divide uninsured expenses pursuant to the 6% Rule, it is a generally accepted method and endorsed by the ICSG. Therefore, there is a good chance that a party’s judge is familiar with the rule and frequently implements it in his/her child support orders. Per the 6% Rule, the parent who is assigned to pay controlled expenses, usually the custodial parent and the one receiving child support, is required to pay an initial portion of ordinary uninsured health care expenses. The theory behind this is that the parent who is receiving child support can use a percentage of the support toward ordinary uninsured health care expenses. Therefore, the parent who is assigned to pay controlled expenses is expected to pay uninsured medical expenses up to 6% of the annual basic child support obligation, which can be calculated from the parties’ completed child support worksheet. Beyond that, the parties divide any additional uninsured medical expenses pursuant to their pro rata shares of the parties’ total gross income, which is also listed on the parties’ completed worksheet.

One major caution we always have for clients who follow the 6% Rule is the importance of good record-keeping. As with any other co-parenting issue, parties have to exchange information, billing statements, and receipts in order to determine if one parent has met his/her 6% threshold and how bills should be divided. Without a proper exchange of information and accurate record keeping, it can be difficult for an attorney to help resolve a payment dispute under this rule.

May 22, 2015

Parenting After Divorce: 5 Quick Tips

by Harden Jackson, LLC

There are manuals to parenting. There are manuals to divorce. Then there are manuals to parenting through and after divorce. While manuals are practical for those who have time to sit and read them day after day, many of our readers are on-the-go people with kids, pets, and jobs. After sifting through our experiences and the resources available to us, we narrowed parenting after divorce down to 5 quick tips that will improve your outlook on the choices you make as a parent.

1. Have faith that things will work out.

Most blogs might save this one for last – it’s that “feel good” phrase that’s supposed to get you through each day. But sometimes, your faith will be shaken. This phrase won’t work. You won’t believe in yourself. The good news is: you don’t always have to. Find an outlet for yourself that can restore that faith. Whether that’s a church group, a best friend, or simply your favorite soundtrack, it’s imperative for you to realize that you’re not alone. Use your support network to find the faith that others have in you.

April 6, 2015

Frequently Asked Question – Protecting Assets and Children When Filing for Divorce

by Harden Jackson, LLC

Potential clients frequently ask how to protect their assets when they file for divorce, particularly in the event their spouse takes control of their assets, liquidates a bank or investment account, sells a car, takes a second mortgage on the house, racks up a bunch of credit card debt, etc. Without an agreement or court order, all of those actions are improper because they “dissipate” or waste marital assets that must be included and divided as part of the marital estate. Luckily, several counties, including Hamilton County, have local rules that immediately protect parties against dissipation of assets prior to a preliminary hearing. These rules are similar to Indiana Trial Rule 65(E) regarding temporary restraining orders in domestic relations cases, except that they do not require an initial petition or court order. In fact, Hamilton County’s local rule has a similar provision to Trial Rule 65(E)(1)(b) against removing children from the state as well. Hamilton County’s local rule LR29-TR65-212 states:

In any Domestic Relations case filed in Hamilton County, the parties shall not, without hearing or security:

a. Transfer, encumber, conceal, sell or otherwise dispose of any joint property of the parties or asset of the marriage except in the usual course of business or for the necessities of life, without the written consent of the parties or the permission of the Court; and/or b. Remove any child of the parties then residing in the State of Indiana from the State with the intent to deprive the Court of jurisdiction over such child without the prior written consent of all parties or the permission of the Court.

March 27, 2015

Maintaining a Healthy Lifestyle through Divorce

by Harden Jackson, LLC

During a divorce there are lots of things on your mind. Everyday life becomes a challenge and the things that came to you naturally before your divorce require a conscious effort now. You hold yourself together at work and change the subject when your kids bring up your soon-to-be ex-spouse. You wonder how your spouse is doing as you check their Facebook profile for the tenth time that day – are they seeing anyone? Have they talked to your mutual friends about the divorce? You call your friends for support and you contact an attorney for legal advice.

But there’s one thing you probably haven’t given much thought to: your health.

A recent article by the U.S. News and World Report suggests that divorced people actually have a heightened risk for some long-term chronic health conditions. One family law attorney compared the divorce process to grieving a loved one who has passed on; “The accompanying stress and grief is comparable to a physical loss which affects you both physically and emotionally.”

March 20, 2015

What Really Causes Divorce?

by Harden Jackson, LLC

There is a lot of media attention around Eva Mendes right now for her comments in an interview with Extra regarding sweatpants and their toxicity to marriages:

“No, no, no, no! You can’t do sweatpants. No,” she said. “Ladies, No. 1 cause of divorce in America? Sweatpants. No. Can’t do that.”

While many were quick to dismiss these comments, it does draw attention to the real causes of divorce. Just under fifty percent of all marriages in the United States end in divorce. So what really causes divorce in the United States and why?

March 13, 2015

You’ve Decided to File for Divorce. Now What?

by Harden Jackson, LLC

The Technical Part

For whatever reason, you’ve decided to file for divorce. There are several things you need to do before you file for a divorce.

1. Call an attorney. This part doesn’t have to be stressful – search engines like Google have made finding a good attorney faster and easier than in the past. Be wary of experience levels – an ideal attorney might have 5-10 years of experience, depending on the assets involved with your spouse.

March 6, 2015

Divorce Statistics Unaffected by NJ Collaborative Family Law Act

by Harden Jackson, LLC

Last fall, Governor Christie signed the New Jersey Collaborative Family Law Act after it passed unanimously through both the Senate and General Assembly. This legislation is modeled on a proposal from the New Jersey Law Revision Commission and the national Uniform Law Commission. The New Jersey Collaborative Family Law Act allows couples to have a marriage dissolved without court intervention through a process similar to mediation, in which both sides would be required to provide “timely, full, and candid disclosure” of relevant information without either side having to resort to discovery.

This demonstration of partisanship and constructive reform would allow couples who litigate their divorces in New Jersey to settle their cases through a newly enacted method called collaborative law. But according to recent statistics given by presiding judges in Morris; Sussex; Somerset; and Essex counties, approximately 97 percent of couples are still going through traditional divorces that end in settlements. So why aren’t couples turning to collaboration to settle their divorces?

Even though New Jersey has one of the lowest divorce rates in the nation (6.9 per 1,000 women; 6.6 per 1,000 men), New Jersey is the ninth state to legitimize this process to reduce costs, improve the selection of options for divorcing spouses, reduce the impact of the divorce on children, and create new jobs in the legal, financial, and psychological health sectors.

February 20, 2015

Valentine’s Day Divorces

by Harden Jackson, LLC

While February is typically considered the month of love, many firms this month have offered free or discounted fees for filing a divorce claim. One law firm in Charleston, West Virginia accepted applications from couples that competed to show who deserved a free divorce. One location in New York even calls itself a “Divorce Hotel”, where you can check-in married and check-out single after your weekend stay.

Another firm advertised that they were “giving away one free divorce for Valentine’s Day. The winner will be chosen based on the most compelling and convincing story as to why they should be the winner.”

According to Avvo.com, Valentine’s Day sees a forty percent spike in divorce filings. Perhaps it’s because the fear of ruining the holidays around November and December (who wants to explain to their mother why their husband isn’t joining them for Christmas dinner?).