Frequently Asked Questions
- M. McIntyre

Q) My spouse and I have decided that we want to obtain a divorce. How long will the process take to complete?

A) Under Indiana law, the minimum waiting period one must observe is 60 days from the date of filing of the original Petition for Dissolution of Marriage. Indiana law allows a divorce to be made final after the observance of this 60 day waiting period. However, just as no two people are alike and no two couples are alike, no two divorces are alike. Whether or not you can successfully navigate all of the complexities that go into a divorce within 60 days depends on the unique facts and circumstances of every individual case. While there has been a trend for people to do the “do it yourself” divorces, our experience has been that most people who are not lawyers have a very difficult time obtaining the relevant information and preparing the proper documents for filing with the Court to obtain an approval in the minimum period of time.

Further, how quickly a divorce can be completed depends upon whether or not the divorcing couple have an agreement as to how the divorce should go or whether there are disputes on specific issues. Our office generally tries to help people resolve their cases as soon as possible, but only after all of the necessary information has been obtained and the proper agreement and structure reached for each individual case. How well things go for a divorcing couple after the divorce is complete depends on many things and often times the ability to get matters concluded with finality depends upon how well matters are resolved up front.

We try to do things right the first time! While we understand that for most clients going through a divorce is very stressful, we believe that we should move quickly but effectively through the process. We try to help our clients resolve their divorce matters are the earliest time possible while still being effective in resolving all of the outstanding issues in a way that leads to complete resolution. Because divorces can be very complicated, we believe it is essential for a person to have good legal counsel to help them through the process.

Q) I’ve heard lots of different things from friends and family concerning how assets and debts are divided. What can I expect a court to do if I can’t get an agreement on the division of assets and debts with my spouse?

A) Under Indiana law there is a presumption of equal division of assets and debts between a husband and wife going through a divorce. However, there are many exceptions to the equal division rule and because no two marriages are alike, it would be impossible to say with accuracy how a court would divide the assets and debts of any particular marriage. The facts and circumstances of a divorcing couple do matter in making such a division and oftentimes parties may yet even disagree as to what facts and circumstances are relevant in making such a decision.

Only experienced legal counsel can help a party engaged in such a dispute to ferret out the information and evidence necessary to present to a court for consideration. Additionally, there are special circumstances where an unequal division of assets or debts may be appropriate. In many instances one spouse may have a substantial economic position over the other spouse. There are times where an equal division of assets or debts may work an undue hardship on a spouse. Only experienced legal counsel can help guide one through the complicated rules regarding the division of assets and debts of a marriage. We believe that it is very important for people to be properly represented in such matters.

Q) My spouse and I are unable to agree on custody arrangements for our minor children. What does Indiana law provide for and how can we resolve our dispute?

A) Under Indiana law there is no presumption favoring one parent over the other regarding the custody of minor children. Both parents are presumed to be fit and proper persons to maintain custody of the minor children. If a dispute exists, the court must decide which parent is the best person to protect the best interests of the minor children. All of this is very fact sensitive and is governed by a very complicated set of statutes and court rules that can seem bewildering when the untrained person looks at them.

Our office has substantial experience in helping clients deal with the complicated custody rules and in representing clients in custody disputes to prove to the satisfaction of trial courts that our clients should be the person entrusted with the nurturing and care of minor children. Divorce is a very traumatic thing for most children to go through. Emotions oftentimes run very high especially when it comes to the issue of child custody. We try to not only provide adequate representation for our clients in representing their interest in court, but provide them with information and guidance on how to interact with the other parent after the divorce is over and provide guidance on what the rules of conduct between the parents should be regarding the children after the legal matters are resolved. This area of the law is very complicated and we believe only with experienced legal counsel can one successfully navigate the matters surrounding child custody.

Q) I’m a grandparent who has been taking care of grandchildren for some time. Do I have any rights to claim custody of my grandchild?

A) Under Indiana law, if you have in fact been the custodian of a minor child you may very well have the right to claim custody of the minor child in order to properly care for and protect the best interests of that child. Increasingly grandparents and other extended family members are acting as custodians of minor children. Indiana law now recognizes under certain specific circumstances someone other than a natural parent may be named the custodian of a minor child. However, this area of law can be very complicated. Only experienced legal counsel can help a “de facto” custodian file and get approval of a petition to be named custodian of a minor child. Our office represents third party custodians in these types of matters routinely. It has been our experience that legal counsel that have handled matters such as these on a routine basis is essential to successfully obtaining a court order for custody of a minor child.

Q) I have been divorced for quite some time. Recently my former spouse has filed a petition with the court to modify portions of the original order. What should I do?

A) Because certain aspects of every divorce order can be changed upon a showing of new and changed circumstances, it is not unusual for a party to seek modification of an original divorce order. Our office has substantial experience in assisting clients with making or responding to petitions for modification. Just as it can be complicated and difficult to obtain an original divorce order from a court, it can also be difficult and complicated to modify an order from a divorce court. We routinely help our clients with modification matters and believe that it is essential for our clients to have good legal counsel in order that any modification to an existing court order be done in a reasonable and lawful manner.

Frequently Asked Questions
- D. Smith

Q) Given the current problems with the economy and with all the law changes going on, is it really necessary to be concerned with planning my estate?

A) The fact is, it’s more important now than ever before to take steps to protect and plan your estate. Most people don’t like to think about things like sickness, disability and death. The real problem is if you don’t think about it and plan for it ahead of time, the State may do it for you! And the State’s plan may not be very accommodating to your wishes for you or your loved ones. The truth is there are lots of factors to consider as part of what we usually think of as estate planning. Lawyers may call what needs to be done by various names (estate planning, life care planning, elder law, long term care planning, etc.); The bottom line is that if you want to have a sense of control over your life now, when you become ill or when you pass away you need to think about and take charge over your own affairs while you are able to do so yourself. Your life will always matter most to you. We are here to help you with your plans.

Q) What kinds of things should I be thinking about? If I’m going to be “in-charge” what should I be in charge of?

A) We think good planning should include making provisions for how you want your assets to be held and managed while you’re alive, how your assets and personal matters are to be managed should you become disabled or incapacitated, and how your assets are to be passed on after your death. This list of general topics sounds significant and a little intimidating. However, with guidance and assistance, we believe everyone is able to come up with a plan that is right for them. It is our goal to work with you and develop a plan that meets your personal needs and that you feel you can understand and control. Just as no two individuals are the same, we believe no two plans can be exactly the same. We take the time to talk to and listen to our clients. We try to help them find solutions that work best for them. Then we attempt to implement plans that give our clients control and piece of mind that they have done the right things for themselves and their loved ones.

Q) I’ve heard bad things about probate and the process involved with probate. Are there ways to avoid the probate process?

A) The probate process itself is neither good nor bad. The experience one has with probate depends on a whole host of factors including: the size of the estate, the type of assets held in the estate, who the executor is, who the attorney is, what kind of financial and tax issues that may be present and so on. Most people believe that the most appropriate way to pass on what they have left at the time of their death is by using a traditional will. Wills must be filed with the local probate court and administered pursuant to the provisions contained in the will and state law which affects the interpretation of wills. Traditionally this process involves following many formal procedures and rules and also can take a significant amount of time.

There may be specific situation when using a traditional will and being subject to court supervision for the administration of an estate may be appropriate. However, most people prefer to have more control over their personal matters than is sometimes allowed for in probate court. We assist our clients in not just determining what their assets and liabilities are. We also advise and assist our clients in determining what the most appropriate manner is for maintaining their assets during their lifetime and passing on their assets after their death. There are many non-probate ways that one can pass on assets and holdings onto loved ones.

Some of the non-probate ways of transferring property are relatively safe and can give one complete control during their lifetime while still delivering property to specific individuals following one’s death. Other non-probate forms of transfer can involve a loss of control and can sometimes make life more complicated rather than less complicated. We are always concerned to make sure that we find the right answer for each client that he or she finds to be best for his or her individual needs.

Q) It is often said that if you have to go to the nursing home you can lose everything you own to pay for the costs. Is this true and can anything be done about it?

A) In recent years the Federal and State governments have enacted significant changes that make paying for nursing home costs very complicated. What you can and cannot do with your holdings during your lifetime and how you qualify for State assistance to pay for nursing home care is now a very complicated matter to consider. Generally speaking it is possible to qualify for nursing home care with State assistance without having to first spend all of your own resources or become destitute to qualify. However, qualification rules are complex and it is very difficult for an individual to know what to do without professional advice. It is our goal to assist our clients in making proper legal decisions on the management of their assets and holdings while getting the care they need at the time they need it.

Q) Sometimes things happen quickly especially with elderly persons or special needs persons. Do you handle emergencies and do you make home or hospital visits?

A) Our office routinely advises individuals who are having a crisis occur for themselves and/or their loved ones. We strive to provide the best advice and assistance that we can especially in times of stress and need for families. We routinely will schedule home or hospital visits to help families in their hour of need. We understand very well that in certain circumstances office visits are not possible. We try to make ourselves assessable and will come to your home or hospital as the situation may require.

Q) We have a loved one who has been staying in a nursing home for some time. Recently we have noticed strange injuries on him. Is there anything that can be done about this?

A) Under Indiana law, residents of nursing facilities have certain legal rights regarding the care they receive and the manner in which the care is provided. The Indiana State Board of Health has a prescribed manner by which they investigate nursing facilities who are suspected of abusing or neglecting their residents. The resident and the family of the resident have every right to expect that proper and appropriate care be used in caring for every resident under their charge. If you believe a loved one is being neglected or abused in a nursing facility, it is absolutely necessary that you report the matter to management of the nursing facility. It is also important to seek the advice of legal counsel regarding the protection of the resident’s rights and recovery of the resident’s damages, losses and injuries as a result of the inappropriate care.

Q) Does your law firm also handle wrongful death/personal injury matters?

A) Yes, our law firm also represents injured victims in personal injury and wrongful death matters. Our office has substantial experience in helping victims recover the monies that are due to them as the result of the negligence of others. As with nursing home residents, we will make home and hospital visits to accident victims to assist them with their cases.