Executive Action on Immigration Part 2: The Expansion of the DACA Program

The new executive actions regarding immigration will, among other changes, expand the Deferred Action program to allow many more individuals to be able to take advantage of the program’s benefits. Specifically, the Deferred Action for Childhood Arrivals program (DACA), will be modified to remove the upper age restriction on eligibility for the program. Previously, individuals must have been born after June 15, 1981 to be eligible. The removal of the age restriction allows individuals born prior to this date to also qualify for the program, provided that they meet the other eligibility requirements. Additionally, the continuous residency requirement will be changed to require continuous residence in the United States since January 1, 2010 instead of the prior requirement of June 15, 2007.

These changes are planned to be implemented within approximately 90 days of President Obama’s announcement on November 20, 2014, and will open up eligibility for the program to millions of individuals. The benefits of participating in the Deferred Action program is that individuals will be able to remain in the United States without fear of deportation, and, significant to both individuals and employers, be able to obtain a social security card and work authorization to work legally here in the U.S. Please remember that these changes are not effective yet, so you should NOT pay anyone to fill out or submit an application for you. USCIS will announce then the changes will be effective and release the forms on its website when available.

This is part two of a ten part series focusing on the President’s new executive actions regarding immigration. Check back in tomorrow for a discussion of the new Deferred Action for Parental Accountability program (DAPA) that will allow certain parents of U.S. citizens and lawful permanent residents to remain in the United States.

If you have questions on this issue or any other immigration law issue, please contact us at (812) 426-1231.

Executive Action on Immigration – What it Means for Individuals and Businesses, Part 1

On November 20, 2014, President Obama announced a series of executive actions aimed at alleviating the growing and complicated issue of immigration here in the United States. The primary goal of these executive actions are to strengthen protection against illegal immigration at our borders, prioritize enforcement resources to focus on deporting criminals, offer certain qualified undocumented immigrants an opportunity to remain in the United States without fear of deportation, and streamline immigration procedures to boost the economy and promote naturalization. It is important to note that President Obama’s initiatives are not effective yet, but are planned to be implemented in the coming months. These initiatives, when effective, will undoubtedly have a significant impact on individuals and families who will be given new opportunities to obtain legal status in the United States, as well as U.S. businesses and foreign investors who stand to benefit from proposed changes regarding immigrant and nonimmigrant visas. While nothing can actually be done until the initiatives are implemented, there is plenty that both individuals and businesses can begin doing in order to prepare for the coming changes and new opportunities.

This post is the first in an ten part series dedicated to dissecting and explaining the programs and initiatives set forth in the President’s announcement of his executive actions regarding immigration, and what they mean for both individuals and businesses that stand to benefit from their implementation. Over the next couple of weeks, I will be explaining the new opportunities that individuals and family members of U.S. citizens and lawful permanent residents will have to remain in the United States and to work legally while here, including the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of the Deferred Action for Parental Accountability (DAPA) program. I will also be explaining the administrative guidance and regulatory changes regarding immigrant and nonimmigrant visa procedures that will have a significant impact on U.S. businesses and foreign investors, including the expansion of work and training visa programs and the new opportunities for foreign entrepreneurs and skilled workers to come and remain in the United States. I also hope to provide some guidance to both individuals and businesses on how they should begin preparing for the executive actions so that they are in the best position possible to benefit from the new programs and initiatives as soon as they become available.

Check back in tomorrow for a discussion of the changes to the Deferred Action for Childhood Arrivals (DACA) program that will increase eligibility in the program for millions of individuals.

If you have questions on this issue or any other immigration law issue, please contact us at (812) 426-1231.

The Decree Of Dissolution: The End Or Just The Beginning?

It has been an emotional battle getting to a settlement or a final hearing, and you finally receive your Decree of Dissolution … so NOW WHAT DO YOU DO?

We all would love to believe that once the decree has been signed and entered by the Court that the legal issues will end, but in the best of divorce circumstances involving property division or children, there remain a number of issues which must then be addressed by the newly divorced person, including compliance with the terms and provisions of the decree and actions necessary to protect the newly divorced person.

Some initial issues each recently divorced person should address are as follows:

      • Estate Planning. This is the perfect time to address this necessary action. If you have previously executed estate planning documents such as a Last Will and Testament, Power of Attorney or Health Care Representative Designation and you are newly divorced, now is the time to revise these documents as your personal circumstances have drastically changed. In the alternative, if you have not previously prepared and executed estate planning documents, now is the perfect time to take this important step. You should make immediate arrangements to meet with an estate planning professional (your divorce attorney may also provide these services) to review and change or newly execute these important documents.
      • Property Transfers. Transferring ownership of real estate property is quite different than transferring ownership of personal property. Both parties of a divorce should immediately execute quit claim deeds, sales disclosures, automobile or other vehicle transfers, and other similar transfer documentation
      • Financial Advice. Meet with an investment manager or CPA to determine the subsequent changes to your tax status and dependent exemption benefits and what, if any, notices to IRS are required. Further, if you received a settlement, an investment manager can help to steer you in the right direction for your particular investment circumstances, needs, and desires.
      • Change Account Beneficiaries. The beneficiaries of all bank accounts, investment accounts, retirement accounts (personal and employment funded), life insurance policies (personal and employment provided), stock certificates and similar accounts should be changed to reflect your change in status. Even if the change of ownership of these types of accounts is referenced in your decree, you are still required to change the beneficiary status on these accounts using the proper form for each individual account. Failing to do so could result in an ex-spouse remaining as a beneficiary causing potential litigation in the future.
      • Employer Funded Retirement. Confirm with your attorney that employer funded pensions or savings plans have been divided via a Qualified Domestic Relations Order (QDRO) or an Eligible Domestic Relations Order (EDRO) if division of these types of accounts is included in your divorce decree. Some retirement plans have deadlines for these documents to be executed, entered with the court and qualified by the Plan Manager and the process can take several weeks to several months. You should double check with your attorney to confirm which party is responsible for the preparation of these documents, and follow up with your attorney if this process isn’t started during the divorce. Make sure you have provided your attorney all necessary retirement contact information so this complicated process is smoothly concluded.
      • Contact with Children’s Schools. If you have children, you may wish to provide a copy of the divorce decree to the school that your children attend. Under Indiana law, both parents are entitled to direct access to their child’s school records, Indiana Code § 20-33-7-2. The same is true with access to the children’s medical records, Indiana Code § 16-39-1-7; and mental health records, Indiana Code § 16-39-2-9. Provide your ex-spouse with the name of each medical provider used by your children and sign necessary authorizations for the other parent to have access to medical information. Finally, both parties should have current health insurance cards for the benefit of the children.
      • Compliance Deadlines. Your decree may set forth deadlines for compliance, such as refinancing a mortgage or car loan to remove the other party’s name. It is important to calendar or diary these deadline dates and make timely arrangements to comply with the provisional requirements. Remember, tasks such as refinancing can take several weeks or even months; therefore, immediate attention to these tasks is best.

In each case, there are different post-judgment issues that must be addressed under each individual Decree of Dissolution. If you are unsure of your responsibilities after the Decree has entered, arrange a meeting with your attorney to review your responsibilities so that you remain in compliance with the Decree requirements. The best way to avoid post-judgment issues is to be prepared and organized and to fully understand what is expected and what is required now that your divorce decree is in hand.

The attorneys at Bowers Harrison can skillfully direct you to and through the path to divorce and also the trail after the divorce is concluded. If you have questions regarding the post-judgment issues or any other family law issue, please contact us at (812) 426-1231.

Child Support and Arrearages

Much like the shark lurking in calm ocean waters, child support arrearages, or past due child support, can sneak up on the payor of child support with unplanned or unsuspected consequences.

In Indiana, it is common for a court to order provisional child support for the care and maintenance of minor children in dissolution cases or in a paternity action prior to a hearing.   The effective date of that order for provisional child support (i.e., the date that child support obligation is set to begin) can impact whether a child support arrears exist: if a court orders that the effective date of the child support obligation was the date of filing for the Petition for Paternity or Petition for Dissolution, an immediate child support arrears has been created, since the payor owes the child support due from the present back to the date of filing.

When child support is ordered, child support arrears are also created and collected through an a Wage Withholding Order, that orders the child support payor’s employer to withhold child support from the payor’s pay check and then transmit the withheld child support to the central child support collection bureau.  There is often a lag period between the child support effective date, entry of the required withholding order, processing  of the withholding order by the employer, transmittal of the payment, and distribution by the child support office.  That lag time can be weeks.    Further, when a withholding order is in place and a child support payor changes employment and fails to notify the new employer of the withholding order, an arrearage can be created.

The best way to avoid arrearage consequences is to remain current on payment of all child support obligations.  In the case of a delay between the effect date of child support and an employer withholding support under a Wage Withholding Order, child support can normally be paid directly to the local county child support office or the Indiana State Child Support Bureau as a means to avoid child support arrears from accumulating until the wage withholding order becomes effective.

For more information regarding child support rules, calculation of arrears or child support enforcement issues, it is important to obtain knowledgeable legal advice.  If you have questions regarding child support or any other family law issue, please contact us at (812) 426-1231.

Child Support – The Myths and the Reality

One of the most emotionally fraught issues of a divorce or paternity action is the issue of child support. The basic premise of child support is that each parent of a child has a duty to support that child based upon their financial resources and needs, the standard of living the child would have enjoyed had the marriage not been dissolved or had the parents not separated, the physical or mental condition of the child, and the child's educational needs.  However, there are some commons myths regarding a parent’s child support obligations, such as:

  • “I’m the Mom, so I don’t have to pay child support.” 
  • “I can use child support to pay my bills.”  
  • “I have 50/50 physical custody, so I don’t have to pay child support.”
  • “If I get remarried, I will lose my child support.”
  • “Nothing will happen if I don’t make my child support payments.”

In reality, the amount of a child support obligation depends on many factors.  For example, the number of children residing with each parent, the gross income of each parent, not just the Dad, the overnight parenting time for each parent, the health insurance responsibilities of each party, day care expenses and the number of “other children” living in each household. In Indiana, the child support obligation requirement ends when a child attains 19 years of age.

Parents must remember that child support is not optional.  Even if there is a 50/50 custodial arrangement, child support can be ordered.  Both parents have a duty to provide for the day-to-day needs, health, well-being and support of the child, not just the Dad, and it is assumed that child support will contribute to the day-to-day expenses for the child, including housing, food, clothing, utilities and the like.  Most importantly, child support is not intended to “support” the party receiving child support, and it is the child that has a right to child support, not the parent.

A great starting point to understanding child support rules is to refer to the Indiana Child Support Guidelines, and the State of Indiana’ online child support calculator.  Both can help to resolve some of the myths surrounding child support in Indiana.

If child support is a concern in a divorce, post-dissolution or paternity action, it is important that you discuss your concerns regarding child support with legal counsel as this is the best way to dispel the myths.   At Bowers Harrison, LLP, we can help navigate you through the child support minefield.  If you have questions regarding child support or any other family law issue, please contact us at (812) 426-1231.

Pre-Nuptial Agreements: I Will, I Won’t, I Do.

Many couples contemplating marriage, especially in a second or subsequent marital situation believe that a Pre-Nuptial Agreement (or ‘Pre-Nup’) is a necessary evil in planning their happily ever after.  However, what terms should be included in a pre-nuptial agreement can become a point of contention for many couples.

In the simplest of terms, a Pre-Nuptial Agreement is a contract between a man and woman that is executed prior to a marriage and directs the control of assets during a marriage and the disposition of those assets in the event of a divorce or death.  In Indiana, Pre-Nuptial Agreements are prepared pursuant to the Uniform Premarital Agreement Act.  To be an effective and enforceable agreement, a Pre-Nuptial Agreement must be in writing and must be signed by both parties.

While the terms of a Pre-Nuptial Agreement are unique to the couple and the couple’s situation, a common term is that couples include provides that each party has the sole and exclusive right and control over his or her respective assets (e.g., real estate, investments, jewelry, cars, etc.) which are brought into a marriage. That exclusive control may also include increases in the value of those assets, even if the increases occur during the marriage, during the disposition of assets upon legal separation, dissolution (divorce, or death, or even during a specific event that is described in the Pre-Nuptial Agreement.  Pre-Nuptial Agreements may also create, modify, or eliminate spousal maintenance or spousal allowances while also affecting death benefits, Wills or Trusts.  In Indiana, Pre-Nuptial Agreements may not include terms that adversely affect a child’s right to child support.

A Pre-Nuptial Agreement is not enforceable, if it is proven that a party did not execute the agreement voluntarily, the agreement was unconscionable (grossly unfair) when it was executed, or the agreement will cause undue hardship to one of the parties.  The court is responsible for determining the issue of unconscionability as a matter of law.

Pre-Nuptial Agreements are generally quite complicated and can be very confusing, especially if there is a significant pre-marital estate brought into the marriage by either party.  Also, because negotiating a Pre-Nuptial Agreement can be a very emotional and stressful experience, it is best to address the need for this type of Agreement well before the planned wedding date.  Therefore, each party involved should consult with an attorney who is very familiar with the drafting, execution, and enforceability of these agreements.  Further, in a dissolution setting, a party with a Pre-Nuptial Agreement should consult with an attorney as to whether the agreement is enforceable. 

If you have questions on this, or any other family law issue, please contact us at (812) 426-1231.

The Balancing Act: Grandparent Visitation vs. Parents’ Constitutional Rights

The Indiana Supreme Court vacated the opinion in In re Visitation of M.L.B., 969 N.E.2d 140 (Ind. Ct. App. 2012) and remanded the case back to the trial court for new findings and conclusions.  In this case, the child was born to parents who were never married and ended their relationship a few months after the child was born.  Despite paternity and child support being established, the father did not pursue parenting time and had no contact with the child for some time.  The father’s extended family, on the other hand, had frequent visits and would take the child to extended-family functions.  The voluntary visitation arrangement continued for some time until the Mother’s new husband filed for step-parent adoption of the child.

Indiana Code 31-17-5 provides that a grandparent-visitation order is available only if (1) the child's father or mother was deceased; (2) the child's parents had divorced; or (3) the child is born out of wedlock provided however that paternity has been established.  While Indiana law provides for grandparent-visitation in these instances, natural parents’ decisions about grandparent involvement and the degree of deference that should be given to natural parents' decisions becomes a significant issue. 

In issuing its opinion, the Indiana Supreme Court was clear that it is important for a child to have a relationship with his or her grandparents and this relationship deserves protection under the Grandparent Visitation Act.  However, grandparent-visitation orders can, to some degree, impinge on a parent’s constitutionally protected rights.  As a result, an order granting grandparent visitation must consider four “well-settled factors for balancing parents’ rights and the child’s best interests” and also limit “the visitation award to an amount that does not substantially infringe on a parents’ rights to control the upbringing of their children.”

If you have questions on this issue or any other Family Law issues, please contact us at (812) 426-1231.

It’s December: A Time for Holiday Cheer and, for Divorcing Couples, Income Tax Considerations

When December rolls around, there are a number of issues on divorcing couple’s minds but the most often overlooked is the income tax consideration associated with the finalization of the dissolution.  Particularly in December, lawyers often find themselves asking their client if the client would prefer to stay married until January of the following year.  Why? Well, the answer to that question is not always as simple as you may think.

IRS regulations provide that a divorcing couple’s filing status for tax purposes is determined based upon the legal marital status as of the last day of the tax year.  Individuals are classified as married until a divorce is final, even if the individuals are separated under a separation agreement, provisional order or other “nonfinal” decree.  Unless the final decree of dissolution is entered by December 31st, spouses must either file as married filing jointly or married filing separately.

There are, of course, advantages and disadvantages to finalizing the divorce before the end of the year or waiting to finalize it and then determining the filing status for the client.  Then, to further complicate the matter, there are the issues of dependency exemptions, head of household exemptions, day care exemptions, tax aspects of the property settlement in the dissolution, the client’s tax withholding status, and the fact that parties, who file a joint return, are jointly and severally liable for any taxes owed on the joint return except in very limited circumstances.

Divorce and the IRS code make an extremely emotional and already difficult situation even more complex.  There are situations where a joint return is not advisable or is simply impossible.  More often than not, these decisions require the coordination of both parties, their respective attorneys and the involvement of a qualified CPA or other tax professional. 

If you have questions on this issue or any other Family Law issues, please contact us at (812) 426-1231..

 

UNMARRIED COUPLES LIVING TOGETHER AND THE WAR OF ROSES: HOW A COHABITATION AGREEMENT CAN HELP IN THE EVENT OF A BREAK UP

The Center for Disease Control (“CDC”) recently published a study, which found that more U.S. couples are living together without marrying and that those unmarried couples who live together are living together longer.  With couples living together longer, houses may be purchased or apartments leased, household items are purchased individually and together, bank accounts may be commingled, and joint and individual bills are incurred.  But what happens to those items if the couple eventually decides to break up?

As family law attorneys, we see this situation arise time and time again.  In Indiana, if a couple is married, then the dissolution statutes apply, which determine how the couples’ assets are divided between the man and woman.  However, with unmarried couples who are simply living together, these statutes do not apply, regardless of whether the unmarried couple has lived together for years.  This is because Indiana does not have a cohabitation statute and does not recognize common law marriage (in fact, Indiana has not recognized common law marriage entered into in this state since 1958).  Although Indiana courts have allowed some individuals to recoup some of the money he or she used to pay for the costs of the relationship, unmarried couples that are living together should consider a cohabitation or “living together” agreement in order to solidify what happens if they break up.

A cohabitation agreement is an agreement that sets forth a plan in the event of a break-up.  At a minimum, a cohabitation agreement should address the division of property, which answers the always important question: “Who gets what?”   Additionally, a cohabitation agreement can set forth the financial obligations and duties that one person owes to the other.   For instance, it may answer the following questions with which unmarried couples struggle, both during the relationship and after:

–          Who will pay certain bills while living together;

–          What will happen to joint accounts and investments;

–          Who will be responsible for joint debts;

–          Whether repayment of debt is required when one person paid the    

           debt of the other during the relationship;

–          Whether one person must repay any debts, which the other

            person paid; and

–          Any other personal obligations between the parties.               

Ultimately, whether an unmarried couple needs a cohabitation agreement, depends on the unique facts and circumstances of each case.  To make this determination, couples should consider whether they will:  buy property together, commingle their incomes and investments, have joint debts, or otherwise intertwine their funds and/or assets, regardless of whether those assets or funds were obtained prior to or during the relationship.  While it may not be romantic to discuss “what happens if we break up,” early communication and a written cohabitation agreement discussing these issues relevant to the couples’ relationship may help to prevent a war of the roses.

If you have questions on this issue or any other Family Law and Adoption issue, please contact us at (812) 426-1231..

APRIL IS NATIONAL CHILD ABUSE PREVENTION MONTH

Beginning in 1983, each April has been proclaimed "National Child Abuse Prevention Month."  This month allows for child abuse and neglect awareness activities to be promoted across the county and is a call for individuals to take action to work to ensure that our children have the best chance to live a healthy and happy childhood.

In Indiana in the past few years, there has been a call for review of the Department of Child Services ("DCS"), particularly the so called "improvements" to the agency including but not limited to the state's child abuse hotline.  There has also been a call for intervention by many as a result of numerous printed stories regarding egregious stories of abuse. 

The Indiana Legislature responded in 2012 by passing SEA 286 which included language for an interim study committee on DCS' "improvements."  The committee heard extensive testimony from the agency and from the public and made numerous recommendations for hotline changes, the creation of a DCS Oversight Committee; creation of a Commission on Improving Status of Children, allowing prosecutors to file CHINS cases and requiring petitions to establish or modify custody to include information if either the adult to whom custody is being ordered or the child has been the subject of a DCS investigation for child abuse.  These recommendations are now before the Indiana Legislature. 

Our family law department will continue to monitor these proposed bills and their progress through the Indiana Legislature.  If you have questions on how this may affect you now, please contact one of the attorneys in our family law department.