Frequently Asked Questions
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A guardianship consists of a court order that allows one party to meet the physical and financial needs of another party. It does not require the guardian to spend their funds to support the party but requires the guardian to manage the assets of the ward, if they have guardianship over their estate.
The guardianship lasts as long as the need, in which it is based. The guardianship lasts as long as the need, in which it is based. Therefore, a guardianship over a minor would typically end when the minor reaches the age of 18. A guardianship over an incapacitated person would continue, so long as the individual is disabled. On the motion of the individual who is the subject of guardianship, the court may terminate guardianship at any time. Additionally, if a third party believes that the appointed guardian is not properly performing their duties, they can intervene in the case, and ask that the court name a new guardian.
No, as you agree to the guardianship over your children, it would be necessary for you to prove to the court, that it is no longer in the best interest of the children, to be cared for by the appointed guardian. You would need to go to the court and ask that the guardianship be terminated; Certainly, if you and the appointed guardian agree, that the guardianship should be terminated, the court will grant the termination.
Paternity is a legal proceeding whereby the legal rights of a child born out of wedlock are determined. The legal rights of the parents would include custody, parenting time, and child support.
Either the mother or the father may file the action, either in their name or for the benefit of the child.
No, if the parties agree that the named father is, in fact, the father, the court will not order a test. However, either party has the right to a test, if they request it and they cannot agree as to the paternity.
The court will look to the same criteria for custody, in a paternity case, that it does in a divorce. Factors such as the age and sex of the child, the interaction between the parents, siblings, and other individuals, the relationship of the child to their home, school, and community would also be determinants that the court will consider. When considering these factors, the court will decide as to what is in the best interest of the child.
The court will rely heavily on the Indiana Parenting Time Guidelines to make this determination. However, the court will also consider unique factors in each case to deviate from those guidelines, should it feel appropriate. The Indiana Parenting Time Guidelines can be found on the internet and at no cost.
The court makes the determination regarding child support in a paternity case just like it does in a divorce case. It will rely heavily on the Indiana Child Support Guidelines but will also consider unique factors if it believes it should deviate from those guidelines.
Wills and Estates
No. No, an estate only needs to be opened if the deceased individual owned assets in their name that exceed $50,000.00; Jointly held assets are not considered part of that $50,000.00. When determining whether or not to open an estate, things such as insurance policies, are not considered.
No, any individual who is in the possession of the Will of a decedent, must file it with the probate clerk’s office. But, the same consideration still applies, as to whether an estate needs to be opened or not. A determination must be made, as to whether the individual who had the Will had assets in their name exceeding $50,000.00.
If it is determined that an estate must be administered through the court, then that would increase the cost related to managing your loved one’s final affairs. Firms charge differently regarding the administration of estates. Typically, our firm charges by the hour for estate-related services. Some firms charge a percentage of the estate unless the estate is small. Normally, it is less expensive to pay an attorney by the hour to handle the estate, rather than paying a percentage of the total estate. By charging by the hour, the fee-only increases if the amount of work increases, not just because the estate is large.
The time that it takes to finalize estate matters varies greatly. It depends on the complexity of the assets owned by the person and in their name. If those assets need to be liquidated, then the costs related to the sale will more than likely increase the time and expenses related to the estate.
If a will is properly executed, it may not be ignored, and binds upon the death of the individual that executed it. Only in the case where heirs agree not to follow the terms of the Will may that be done. It usually involves an heir renouncing their interest in the estate of the decedent; Sometimes, this is done for tax reasons or personal reasons, but the attorney should be advised immediately if the parties intend to engage in this fairly unusual procedure.
The decedents' assets would be divided, according to the laws of intestate succession. The Indiana legislature has enacted statutes that describe the next of kin to a decedent for purposes of dividing that individual’s property, without the benefit of a Will. The absence of a Will does not result in assets being given to the State of Indiana, as many people have believed over the years.
Yes, a Will can always be destroyed by simply tearing it up, which renders it ineffective. Also, it can be revoked by the execution of a substitute Will at any time. Additionally, a Will may be revoked by writing a document stating, "I hereby revoke my prior Will. " Typically, Wills are changed, as a result of an individual writing a new Will, however, a Will can be changed by executing what is called a Codicil, which is an amendment to the Will changing only a portion of the Will. That document should be kept with the original Will and identified as a Codicil to the original Will.
After you have conferred with an attorney that practices estate planning, he or she will advise you as to whether any other documents would be necessary. For simple estates, many times, a Will coupled with a Power of Attorney, and Health Care Representative will be sufficient. However, the attorney may advise you regarding the use of a trust that can be revoked, as well as trusts, that cannot be revoked. They may also advise you to change the ownership of assets so that they will pass automatically to the heir, upon the death of the current owner. A detailed conference with the attorney will allow them to advise you as to what documents should or should not be executed.
Yes, as long as the court determines that the marriage has reached an irretrievable breakdown, and there is no chance of reconciliation, it will grant the divorce. The parties do not have to agree on this conclusion. One party testifying under oath that that is the current state of the marriage will be adequate for the court to grant the divorce over the objection of the other party.
Indiana provides that one spouse can be required to support the other spouse, while the divorce is pending. However, Indiana does not have alimony, and therefore after the divorce, typically one spouse would not support the other. There are exceptions to this, under the maintenance statute, which allows the court to order one spouse to provide maintenance for the other spouse under limited circumstances such as disability of the spouse, or rehabilitative maintenance by providing education for the other spouse.
Yes, the Court can grant a restraining order preventing one party from having contact with the other, if violence is an issue. Moreover, one party may file a protective order against the other party, and the court will consolidate the protective order action with the divorce, to protect the other spouse.
A restraining order is enforced by order of the civil court. A protective order is enforced by the filing of a criminal action for invasion of privacy. The net effect of both actions is not very different; The court uses either the restraining order or protective order to control the spouse that is causing the threat. Under either circumstances, the court can place the violating spouse in jail.
Yes, however, the court will usually approve an agreement signed by both parties. In Indiana, A court hearing is no longer necessary for that purpose. If both parties sign the agreement, the court will then read the agreement and approve it. The court’s involvement then would be one of approving the agreement not hearing testimony and issuing an independent order.
Yes, it is a very simple request made at either a trial or by agreement of the parties. The name can be returned to the prior married name of the female spouse, or the female spouse’s maiden name at her election.
The cost of a divorce, typically, depends on its complexity. If the parties have no children and very few assets, commonly, a divorce will cost less than $1,000.00 to prepare the paperwork to initiate the divorce, and finalize it. On the other hand, if the parties have significant assets that require valuation by experts, and a long trial to determine how they should be divided, the divorce can be very expensive. Moreover, disputes relating to children, typically, cause the attorney to invest a great deal of time in the divorce, causing the costs to be higher.
In Indiana, the divorce must stay open for at least 60 days. The court does not have jurisdiction to grant the divorce until that period has passed. However, typically, divorces last longer than 60 days, especially if they are contested, and a trial is necessary.
Indiana requires the court to divide the property equitably or fairly. Indiana presumes that a 50/50 division of the assets is fair. However, the court has the discretion to give one party more than the other based on factors enumerated in the statute including the disparity in earning ability of the parties, waste committed by either party, assets received by gift or inheritance, or premarital ownership of assets..
The Indiana statute governing custody delineates criteria that the court must consider in making its decision as to where the child is to reside. These criteria include the age and sex of the child, the child’s interaction with the parents, siblings, and others, the child’s adjustment to their home, school, and community, and the mental and physical health of the parties involved. The court’s ultimate determination should be what is in the best interest of the child. It considers these factors as well as other factors to make that determination. Typically, the court wants the primary caregiver to continue to provide that care after the divorce is over if that is in the child’s best interest.
Indiana has adopted parenting time guidelines that the court is to follow unless it gives a reason for deviating. These are published on the internet and can be reviewed by an individual before they initiate their divorce. The court is not to restrict, however, parenting time for the non-custodial parent, for instance, supervising it unless the court finds that the mental or physical health of the child would be placed in danger.
Indiana has adopted child support guidelines. These guidelines are factors that the court is to follow unless it finds a reason to deviate from them. The court will consider the income of the parties, the time the child spends with each party, as well as who is paying medical insurance, and how many other children each of the spouses have to determine a child support amount.
A legal separation is very similar to a pending divorce. However, the purpose of the legal separation is to try to resolve the differences between the parties, but not dissolve the marriage. While the separation is pending, the court will typically issue an order relating to assets, debts, and the children. The purpose of the divorce is to dissolve the marriage, divide the assets, and assign responsibilities regarding the children. Typically, a legal separation would involve counseling by the parties to try to resolve their problems. A legal separation can remain open for one year. At any time during that period, either party may convert the legal separation to a divorce.
No, if either party objects to counseling, the court does not have the authority to order marital counseling. The court may, however, order counseling relating to the care of the children even if both parties don’t agree.
Joint legal custody does not involve the amount of time the child spends with either parent; It simply means that both parents have an equal say in determining major decisions regarding the children's education, religion, and elective medical treatment.