Part of Real World Divorce: web edition | Kindle edition
To learn about family law in Indiana, we interviewed Bloomington-based Andy Mallor, who has been practicing for 40 years. He is a long-time "Super Lawyer" and member of the American Academy of Matrimonial Lawyers. See lawmg.net for a full biography.
Divorces in Indiana are started by a "petitioner” against a "respondent," corresponding to the plaintiff and defendant in other states. Mallor represents an equal share of male and female clients and says females are more often the petitioner in cases where he is involved. Mallor handles about five major trials per year.
Depending on the county, mediation is required in all divorce lawsuits. What does "mediation" mean? "One session is all that is required," responded Mallor. If an obstinate person shows up, sits with his or her arms crossed for two hours, and walks out does that prejudice his or her case in front of the judge? "No," said Mallor. "Mediation is confidential: a person could show show up and not participate."
Depending on the county, a divorce trial could be anywhere from 3 to 12 months after a case is filed, with 6-9 months being typical in Mallor’s Monroe county. There are two limits on judges ruling arbitrarily in Indiana. The first is that judges are elected and must run for reelection. The second limit is that, as in some Western states, Indiana allows for the automatic one-time reassignment of a case to a different judge: "You can get an automatic change of venue, which means the same courthouse but a different judge, if you file within 30 days of the judge being assigned," explained Mallor.
Can a divorce litigant get exclusive use of the house and custody of the children prior to trial? Mallor explained that a provisional hearing is available in Indiana. These are supposed to be set within 10 days after filing but are “normally 30-90 days after filing." Is it just attorneys talking for 5-10 minutes each and perhaps offering affidavits, as in many other states? "No," said Mallor, "hearings are evidentiary [with witnesses testifying] though you would be lucky to get a half day, which is hardly ever adequate time." Where does Indiana sit on the spectrum of "kick one litigant out versus let the litigants stew together under one roof"? "it’s very difficult to get a kick-out order unless there has been domestic violence," said Mallor. Does that give a party seeking the house an incentive to make a false or exaggerated allegation of domestic violence? "Yes," said Mallor, "that happens in many cases, but not in the majority of cases." Is there any way to predict when a domestic violence allegation will be made? "I get a pretty good idea when I see who is representing the other side. I can almost tell you the attorney that's going to do it before they do it."
Indiana's judicial branch operates a self-service legal center, complete with tutorial videos, for people seeking Protection Orders. The Web page notes that "Indiana now has an online system to petition for protection orders, which means that you can seek assistance in the security and privacy of an advocate's office while the advocate prepares and files the petition electronically. The advocate will interview you to discover the necessary information for the court filing and will allow you to review and edit the forms before they are submitted to the court. While an original signature is needed on the papers filed with the court, most agencies will deliver the signed forms to the clerk’s office on your behalf."
Child support in Indiana can normally be collected through a child's 19th birthday, though could terminate at age 18 if the child has graduated from high school and not proceeded to college. Child support can be extended for a disabled child.
Indiana is an "income shares" state and publishes a table for combined parental income up to $520,000 per year ($10,000 per week). At the top of the table, a single child yields $37,024 per year in child support. For incomes beyond $520,000 per year, child support is calculated by multiplying a straight percentage depending on the number of children, e.g., 7.1 percent for one child, 10 percent for two children, and 11.5 percent for three children. Note that this results in a dollar figure that is twice as large when three children have three separate co-parents compared to three children from a single parent (i.e., the state provides financial incentives to have children with multiple co-parents). What's the scale of child support in Indiana? For very high incomes, Indiana provides potentially infinite child support revenue. From a defendant with a more typical income, e.g., $250,000 per year, Indiana offers $20,644 per year in child support. This is more than the $13,000 per year cap in Nevada but less than the $40,000 per year available in Massachusetts. This is also much more lucrative than foster care reimbursement in Indiana, which ranges from $6,891 per year for an infant up to $8,636 per year for an 18-year-old.
For low-income defendants, Indiana's formula extracts a more punishing percentage of income. A defendant earning a poverty-line $10,000 per year would pay $1,664 in child support, nearly 17 percent of an already insufficient income. Because Indiana excludes "benefits from means-tested public assistance programs, including, but not limited to, Temporary Aid to Needy Families (TANF), Supplemental Security Income, and Food Stamps," a parent in poverty could be paying a substantial portion of his or her income to a co-parent living fairly comfortably in public housing.
Married parents in Indiana cannot be ordered to pay for a child's college expenses, but a divorced parent can be. "The child must have the aptitude for college and the parents must have the ability to pay," said Mallor. Does that mean Harvard? "If the parents' combined incomes are less than $350,000 per year the standard is the cost of an Indiana state institution," said Mallor, "and the child must maintain a 2.5 GPA and finish within 4.5 years. Although there is no guidance in the statute for what the child must contribute, the child will typically be responsible for one third of the cost and the parents, in proportion to their incomes, for two thirds."
Day care and health insurance expenses in Indiana are ordered on top of the basic guideline amounts.
Starting at 52 overnights per year, Indiana operates a "days for dollars" system that Mallor and attorneys in other states say leads to litigation over a child's schedule: "A credit should be awarded for the number of overnights each year that the child(ren) spend with the noncustodial parent." Consistent with the findings of economists that the costs to a parent of having a part-time child actually are about the same regardless of the overnights, Mallor says that "but for low-income people, overnights can reduce child support for a person who needs them" (i.e., the reduction in child support from the formula does not correspond to any actual savings; the parent still needs to keep a room and closet of clothes ready for the child). As an example of how far child support guidelines can drift from what economists say and from common sense, Indiana assumes that a noncustodial parent who takes care of a child 181 nights per year will spend 2.7 times as much on a child who spends 100 nights per year with that parent (a time ratio of only 1.8:1). If one accepts the USDA's conclusion that "Housing Is the Largest Expense on a Child," and that a dedicated room for the child would be provided both at 100 and 181 overnights per year, this is an absurd result.
Once established, a stream of child support in Indiana is moderately secure. Custody or parenting time cannot be modified absent a "substantial change" in a factor considered by courts in awarding custody. On the other hand, these factors include a child's age and "the wishes of the child, with more consideration given to the child's wishes if the child is at least 14 years of age." If the parent paying child support dies, Mallor says that child support can be collected from the estate. Indiana statutes permit a judge to order a parent paying child support also to purchase life insurance at his or her own expense to secure the obligation and Mallor says that "good judges will order insurance to be purchased. We don't do any case without either asking for it or insisting on it in settlement."
As noted below, Indiana is unusual in that premarital property may be divided in a divorce even after a short-term marriage. Is it possible for couples to contract out of this system, using a prenuptial agreement to keep separate property separate and also waive alimony? "Alimony waiver is simple," said Mallor, "since we don't have alimony other than a rarely granted three-year rehabilitative period for a spouse who gave up a career or in the event of disability of a parent or child. As far as the property provisions, we are the easiest state in which to enforce a premarital agreement. We don't require independent representation--or any lawyers at all. We require 'adequate,' not 'full,' disclosure."
The average hourly wage in Indiana is $19.38 per hour. Census 2014 data show that the median income for a 22-36-year-old college-educated woman working full time is $35,000 per year ($27,234 after taxes). The corresponding man earns a median income of $43,680 ($33,751 after taxes). Attending college in Indiana State University for four years will cost $88,132. According to the Tax Foundation, Indiana collects 9.5 percent of state residents' income to run state and local government, slightly lower than the national average of 9.8 percent.
The average annual cost of child care is $9,880 for an infant and $7,975 for a four-year-old. The total cost of child care from age 0 through 12 is about $54,536 in commercial settings or $36,764 in a family care setting.
The male college graduate will have an after-tax spending power of $418,133 after 15 years of working (15 years of income minus taxes and the cost of college). After adjusting for USDA-estimated costs of caring for a child, he would enjoy superior personal spending power by collecting child support when that support is $2,584 per month or more. He could get that from a mother earning just over $400,000 per year. With two children from two different mothers he could have an after-tax spending power larger than from going to college and work if each mother paid $1,630 per month, which is possible when each mother earns $237,000 per year.
The female college graduate will have an after-tax spending power of $321,728 over the same time period. She would be better off collecting child support when that exceeds $2,161 per month. She can get that from a father earning $361,400 per year. If she is suing two fathers, however, she is financially better off compared to the college/work case when each father earns at least $199,160 per year and pays $1416 per month.
Scenario 1: A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
Mallor explained to us that the "trend in Indiana is joint custody with a selection of a primary residential parent." What does "primary" mean? "Although a judge may deviate if he or she finds a reason, there are mandatory age-based parenting time guidelines that are treated as minimums," said Mallor. "For an elementary-school age child it would be every other weekend and one weeknight every week with summer and holidays shared." What does a "weekend" mean? "Friday through Sunday evening is the standard," said Mallor, who sent us a copy of the guidelines. For children age three and older, the minimum guideline is Friday at 6 pm through Sunday at 6 pm and a four-hour visit on one evening per week. Summers and other school vacations are to be shared 50/50 once a child turns five.
[Note: the guidelines themselves say that that "they are not applicable to situations involving family violence, substance abuse, risk of flight with a child, or any other circumstances the court reasonably believes endanger the child's physical health or safety, or significantly impair the child's emotional development."]
Is it more common for a judge to deviate by awarding a more balanced schedule than the guidelines or a less balanced schedule? "The trend is to provide children with more than the minimum time with the noncustodial parent," said Mallor, "but it is county-specific. In some counties the standard has become 'greater than the guidelines.'" Mallor explained that in counties with a "higher socioeconomic class" it is more common for mediation to be compulsory, more common to award parenting time more equal than the guidelines, and more common to decide custody based on a "forward look" rather than a "backward look at the primary historical caregiver."
Who gets to be the primary parent in this case? "It's a toughie," said Mallor, "and could go either way." Is Indiana like Illinois where a stay-at-home mother with a nanny would be treated "more leniently" than this stay-at-home dad with a nanny? "Yes," said Mallor. "I actually have one of these cases going right now. I’m representing the husband. If you listen to the wife he hasn't done much with the child."
Who decides on custody in Indiana? A judge hearing from lay witnesses or a paid Guardian ad litem or custody evaluator? "In a typical custody fight there will be a GAL," said Mallor, "and, if there are more than modest assets, a request for a custody evaluator. Most judges rely heavily on the custody evaluation." What's the difference between a GAL and a custody evaluator? "GALs can be lawyers, non-lawyers, or psychologists," said Mallor. "There is no standard. They're supposed to just be fact-finders but the reality is in 99 percent of cases they make recommendations. A custody evaluator is a psychologist and the only benefit to having a custody evaluator versus a GAL is if a party has a diagnosable condition that can be found with psychometric testing." Do these paid experts coming into court result in different outcomes? "Judges are getting tired of the money being spent on evaluators and are saying 'give me the facts and let me make the decision.'"
Is there truly no way for the father to get something like alimony to continue his stay-at-home lifestyle? "No," said Mallor, "but remember that her pre-marital assets are subject to division, even inherited or gifted property. Her argument is that the parties should be restored to their pre-marital positions."
If the father could become the primary residential parent he would receive $24,336 per year in tax-free child support from the mother. If they share parenting on a 50/50 basis he would receive $20,072 per year if he is paying the "controlled expenses," such as clothing, or $16,432 per year if she is paying these expenses. If the mother is the primary residential parent, Mallor says that income will be imputed to the father and child support calculated from that imputed income. If as a college graduate he is imputed with $40,000 per year in income, he will pay the mother $3,276 per year. Thus the mother, over an 18-year period, will have $497,016 more to spend if she keeps rather than loses the "primary parent" designation. She can be up to $420,264 better off if she obstructs a 50/50 shared parenting arrangement.
Mallor's hourly rate is $425. If the doctor were to hire him to handle this case through trial, what would it cost? "Excluding experts such as psychologists, this could be $35,000 to $75,000 on one side," said Mallor. Can it really be that much cheaper than in Massachusetts? "I know that in Boston that wouldn't get you a paralegal," said Mallor, "and we do have more expensive cases here. I'm involved in a custody case right now that will be about $300,000 per side, but that is not typical." Given that the photographer has no income, will the doctor be ordered to pay his fees? "Conduct [the affair] affects his ability to get fees from her, but he could get fees," responded Mallor.
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
Suppose that both parents storm into court demanding to be designated primary. Can the judge ignore both parties' requests and impose a 50/50 schedule? "Yes," said Mallor, who noted that a week-on, week-off schedule was a realistic possibility. What about the fact that the father moved out of the house? In some other states we were told that this substantially prejudices his defense of the custody portion of the lawsuit. "It depends on to what kind of place he has moved," said Mallor. "If it is a one-bedroom apartment that's not suitable for four children the schedule won't be 50/50."
In other states a litigant can block 50/50 parenting by asserting the existence of conflict with the other parent. Does that work in Indiana? "No," said Mallor, "that they hate each other doesn't mean the kids should be divorced from a parent. Most psychologists who have looked at come up with a week-on-week-off for parents who don't get along." Suppose that the hatred is not mere posturing but in fact they do truly hate each other and can't let it go? "The parenting time guidelines give the judge the option to award 'parallel parenting' when parents can't get along with each other and there is a significant amount of dysfunction," said Mallor. How does this reduce interaction and/or conflict? "Each parent becomes sole custodian during his or her time with the children."
From the guidelines:
In parallel parenting, each parent makes day-to-day decisions about the child while the child is with the parent. With parallel parenting, communication between the parents is limited, except in emergencies, and the communication is usually in writing. Appropriate counseling professionals are recommended to help parents handle parallel parenting arrangements. Parallel parenting may also be appropriate to phase out supervised parenting time. Parallel parenting is not a permanent arrangement. ...
Joint legal custody of children is normally inappropriate in parallel parenting situations. Rather, sole legal custody is the norm in parallel parenting cases. Additionally, mid week parenting time is not usually proper in parallel parenting cases, due to the higher level of contact and cooperation that is required to implement mid week parenting time.
What about the pre-divorce planning that people who expect to file a lawsuit engage in? Do Indianans expecting to sue for divorce gradually take on more child-related tasks in hopes of winning the "primary residential parent" designation? "You see that all the time," said Mallor. "People become the best parents that they're ever going to be in the year before the divorce is filed." Does it move the needle on the ultimate custody decision? "It wouldn't help in this scenario," said Mallor, "because most judges would look back for more than one year."
Due to the equal incomes of the parents, there would be no child support payable in this scenario in a 50/50 parenting schedule. If one parent could prevail and become "primary" he or she would receive $15,808 per year from the co-parent. This would result in one parent trying to maintain a five-bedroom home, to host the children during alternate weekends, at the poverty line. The custody lawsuit winner would end up with $500,000 more in spending power than the custody lawsuit loser.
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
Mallor expected the stay-at-home mother to be awarded the "primary residential parent" designation and the associated child support ($31,616 per year, tax-free, according to the table). As this is slightly less than the median household income in Indiana (between $36,000 and $38,000 per year depending on the number of tax exemptions), can the mother get something like alimony to maintain her pre-divorce lifestyle? "She could get three years of rehabilitative alimony," said Mallor. How much would that be per month? "There are no guidelines," he responded. Mallor noted that she could also get 60 to 70 percent of the couple's assets, such as home equity or the doctor's pension and retirement savings, based on her lower earning potential. He added that "some dads will voluntarily pay more so that the mother can stay at home."
What if the father says that the breadwinner/stay-at-home partnership was something he agreed to while married but now that he is going to be divorced he would like to share parenting on a 50/50 basis? "We deal with this scenario all the time," said Mallor, "with fathers saying 'I don't want to be just a weekend dad.'" Do they prevail? "A lot of times the weekends will be extended to include Sunday night." If the father were to prevail in obtaining a 50/50 shared parenting schedule, and he were paying "controlled expenses" for the children, the mother's payments would fall to $21,164 per year. This gives her a roughly $177,684 financial incentive to object to shared parenting.
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
Mallor predicted a custody victory for the mom, with the child seeing the father on the guideline schedule. What will visits look like for dad? From the guidelines for 10-36 months: "Three (3) non-consecutive ‘days’ per week, with one day on a ‘non-work’ day for eight (8) hours. The other days shall be for three (3) hours each day. The child is to be returned at least one (1) hour before evening bedtime." Mallor noted that the lack of overnights works in the mother's favor financially because there will be no parenting time adjustment. She will receive $22,152 per year, tax-free, in child support.
Does the mother's slam-dunk win here mean that Indiana has a de facto "tender years" doctrine? "We don't have a tender years doctrine anymore," said Mallor, "but the reality is that with an 8-month-old baby and doctor earning that kind of money courts won't deviate from the guidelines."
Given that Indiana offers such limited potential for alimony, does the mother have to go to work? "Not necessarily," said Mallor. "She can get a significant amount of money because of her status as primary residential parent." Where will the money come from then? "From his premarital property," said Mallor. After less than two years of marriage? "The statutory factors for division of property do not include the length of the marriage. I would argue that she should get 50 percent of the $2 million because of her lower earning capacity and the circumstances of her having a young child at home." What would she actually get after a trial? "30 or 40 percent is a reasonable expectation," said Mallor.
How often does a case like this actually come up? Wouldn't most people in Indiana know that premarital property is subject to division and put a prenuptial agreement in place? "If it is a first marriage," said Mallor, "there usually won't be a prenup. Love conquers everything." What about for a second marriage? "It's more likely that there will be a prenup."
Note that regardless of the property division, the petitioner in this case would receive additional child support as a function of the interest earned on whatever portion of the $2 million remained with the doctor.
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
Consistent with other states, Indiana will automatically award primary custody to the mother here, with guideline child support and standard visitation with the father for the child. Even if the mother is not receiving welfare, a state-funded prosecutor will obtain a paternity judgment against the father and a child support order. Why would she want to hire a private attorney? "Private counsel often gets a faster resolution," says Mallor, "and if the father is not a W-2 worker, e.g., with a closely held business, can help with establishing income."
As with other states, if the mother marries a high-income husband that will not change her entitlement to child support from the doctor.
Can the mother wait until the child is 19 and then file a lawsuit for child support retroactive to the birth? "She can actually wait until the child is two years past 19," said Mallor. He sent us a case that his partner handled, In the Matter of the Paternity of A.J.R., 702 N.E. 2nd 355 (1998). As in some other states, much regarding money flows between unmarried parents is not public. This appeals court case uses initials to refer to the litigants. The mother was a 33-year-old graduate student and the father was a 23-year-old undergrad who "engaged in sexual intercourse with each other during their [1983] stay in Paris." The father went to graduate school (with no taxable income) and then worked as a research fellow at low wages while the mother became a professor at the University of Minnesota. Just as the father was completing his professional training, in 1995, the mother began pressing the father for support for the 11-year-old girl. The girl was 14 when the trial court finally ordered to pay $6,760 per year in child support going forward plus $21,710 in retroactive support (starting two years prior to the mother's filing of the lawsuit). The father was also ordered to pay for the mother's "prenatal, delivery, and post delivery medical services," plus interest going back to 1983. The mother had been on sabbatical in West Africa just after starting her lawsuit and the father was ordered to pay for her trip back to England for blood testing. The father was finally ordered to pay for 100 percent of the mother's legal fees. The total amount of the order would have been roughly $100,000 in 2015 dollars.
The appeals court trimmed back some of the mother's gains at trial, noting that the father had only recently begun earning a professor's salary at the time of the lawsuit and therefore it was unfair to use that salary for calculating retroactive support. The appeals court also noted that the mother should pay her own legal fees because she earned slightly more than the father, had been working at a professor's salary for 10 additional years, and did not have two additional children at home to support as did the father.
Our take-away from the appellate case: Don't drink too much Champagne when you're in Paris! And child support is retroactive to two years before a case is filed.
What if one of the above custody lawsuit winners wants to move to California with the children? "Ten or fifteen years ago you would tell the relocating parent 'Don't worry. You'll get to move,' but today it is harder," said Mallor. "You even need to notify the clerk of the court if you're moving across the street."
Indiana does not have a simple "best interest of the child" test for relocation. From IC-31-17-2.2-1 ("Relocation: Notice of intent to move residence; modifying orders; attorney's fees"):
Sec. 1. (a) A relocating individual must file a notice of the intent to move with the clerk of the court that:
(1) issued the custody order or parenting time order; or
(2) if subdivision (1) does not apply, has jurisdiction over the legal proceedings concerning the custody of or parenting time with a child;
and send a copy of the notice to any nonrelocating individual.
(b) Upon motion of a party, the court shall set the matter for a hearing to review and modify, if appropriate, a custody order, parenting time order, grandparent visitation order, or child support order. The court shall take into account the following in determining whether to modify a custody order, parenting time order, grandparent visitation order, or child support order:
(1) The distance involved in the proposed change of residence.
(2) The hardship and expense involved for the nonrelocating individual to exercise parenting time or grandparent visitation.
(3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable parenting time and grandparent visitation arrangements, including consideration of the financial circumstances of the parties.
(4) Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a nonrelocating individual's contact with the child.
(5) The reasons provided by the:
(A) relocating individual for seeking relocation; and
(B) nonrelocating parent for opposing the relocation of the child.
(6) Other factors affecting the best interest of the child.
(c) The court may award reasonable attorney's fees for a motion filed under this section in accordance with IC 31-15-10.
As the statute does not tell the judge what weight to give any of the above factors, a relocation request could be approved or denied essentially for any reason. We asked Mallor what it was like as a practical matter: "If the child has ties to community, school, parent, or grandparent it’s no longer an automatic ‘you can move’. We're telling people that if your intent is to relocate post-divorce, remarriage alone would not be a sufficient reason."
Quirks
The lack of legally obtainable alimony in Indiana can prompt some people to make substantial voluntary concessions to long-time stay-at-home parents. Mallor told us of working on a divorce where a 56-year-old woman would be trying to get back into the workforce: "Her husband voluntarily gave her his pension."
Indiana encourages additional litigation any time that a self-employed person is sued for child support:
In general, these types of income and expenses from self‑employment or operation of a business should be carefully reviewed to restrict the deductions to reasonable out‑of‑pocket expenditures necessary to produce income. These expenditures may include a reasonable yearly deduction for necessary capital expenditures. Weekly Gross Income from self‑employment may differ from a determination of business income for tax purposes.
Thus there can be lawyers on both sides arguing about whether each expense of a business is "necessary" and what is a "reasonable yearly deduction" for capital expenses where the only suggestion for what is "reasonable" is that it will not be whatever the IRS determined to be correct.
What does Mallor expect to change over the next five years? "There will continue to be a trend toward more equal sharing of parenting time," said Mallor. Because of a statutory presumption? "No," said Mallor, "just from a gradual change in how judges typically rule. I don't think the parenting time guideline statute will change but the idea of parents being divorced from each other but not from their children will take hold." Anything else? "I wouldn't be surprised to see the introduction of statutory alimony."
What would Mallor like to see changed? "When there are children involved I would like to see a statewide system that made the greatest attempt possible to keep a divorce case out of court," responded Mallor. What would that look like? "It could be a friend of the court as in Michigan or more emphasis on collaborative law." What's Mallor's motivation for wanting this change? "The amount of money that could have gone to the betterment of the child that goes to lawyers and psychologists because parents couldn't agree is appalling," he responded. Is it fair to blame the parents for squabbling? Indiana offers to make one parent "primary" and the other "secondary." Isn't it natural that a parent would fight hard to avoid being labeled "secondary," especially since that label will be accompanied by an order to pay the primary parent's bills? "That's true," said Mallor, "the environment in which we operate shouldn't be thumbs up or thumbs down."
Mallor was one of the most persuasive people with whom we have ever talked. He has a comprehensive knowledge of Indiana statutes and case law at his fingertips. It is tough for us to imagine anyone who is better equipped to litigate and throughout the interview we wondered "What happens to people on the other side of this guy?" For someone with these kinds of skills to say "Maybe it would be better for children if we didn't set things up so that they were the natural subject of litigation" would have been shocking if we hadn't heard a few other top litigators nationwide say the same thing after reflecting on their decades of courtroom work.
Indiana has some unusual aspects to its system of family law. For short-term marriages with premarital savings the results of a divorce lawsuit may be much more favorable to a less wealthy partner than in a typical state. For long-term marriages with a big income difference but no savings, Indiana's lack of long-term alimony makes the likely result much less favorable to a lower earning partner. Married couples moving into Indiana may want to consider entering into a postnuptial agreement so that expectations and rights developed in a previous state of residence are not forfeited.