Family

Family Law
Navigate Family Law with a Skilled Team

Divorce, family disputes and domestic struggles prompt uncertainty, frustration, anger, resentment and sadness. It’s a time, perhaps more than ever, where it’s important that hearts and emotions are set aside so the best possible decisions can be made.

We handle family law matters from divorce, support, custody and visitation to guardianship and emancipation.

When it’s your family, you need good legal representation. We ask the hard questions, help our clients be strong in spite of adversity and provide legal expertise. Your future—and perhaps your minor children’s—depend on it.

Among Our Successes

Fair property, support, custody and visitation agreements
College tuition and other payments
Reductions in child support for noncustodial parents
Increases in child support for custodial parents

A Few Facts

Either the husband or the wife must have been an Indiana resident for six months before filing for divorce.
Divorces can be finalized as soon as 60 days after filing.
In Indiana, a “no fault” divorce state, you do not have to prove wrongdoing by your spouse.
Visitation by the noncustodial parent is not linked to child support payments.

Divorce, family disputes and domestic struggles prompt uncertainty, frustration, anger, resentment and sadness. It’s a time, perhaps more than ever, where it’s important that hearts and emotions are set aside so the best possible decisions can be made.

We handle family law matters from divorce, support, custody and visitation to guardianship and emancipation.

When it’s your family, you need good legal representation. We ask the hard questions, help our clients be strong in spite of adversity and provide legal expertise. Your future—and perhaps your minor children’s—depend on it.

Among Our Successes

Fair property, support, custody and visitation agreements
College tuition and other payments
Reductions in child support for noncustodial parents
Increases in child support for custodial parents

A Few Facts

Either the husband or the wife must have been an Indiana resident for six months before filing for divorce.
Divorces can be finalized as soon as 60 days after filing.
In Indiana, a “no fault” divorce state, you do not have to prove wrongdoing by your spouse.
Visitation by the noncustodial parent is not linked to child support payments.

Will

Do you want to be kept alive using any means or allowed to die with dignity? Do you have family and charities you’d like your money and property to go when you die? Do you have young children who will need to be cared for should you die?

These are among important questions to ponder, then discuss with an attorney. Getting your wishes in writing assures they will be carried out.

O’Brien & Dekker knows the ins and outs of living wills, bequests, wills and estate law. We can help formalize your wishes, assuring that when you die your property and assets will be distributed as you have decided.
Among Our Successes

Estate planning that preserves assets
Wills that reflect personal wishes

A Few Facts

Under Indiana law, inheritance tax is assessed on real property in the state.
Life insurance beneficiaries do not have to pay tax on money distributed.

expungment

With 80% of employers performing background checks on applicants or employees, clearing your criminal record is a great investment. 

A new law was passed recently that allows certain charges to be expunged from your record. Contact our office to see if you qualify for an Expungement. Operating While Intoxicated, Possession of Marijuana or other drugs, Minor Consumption, Theft, Dealing in a Controlled Substance are just a few examples of charges we can expunge from your record.Type your paragraph here.

Criminal Expungement Law

Indiana passed a law on July 1, 2013 that allows individuals convicted of certain Felonies and misdemeanor crimes to expunge their criminal records.  Once these records have been expunged a person is treated as if the person had never been convicted of the expunged offense. 

How this can affect you?  If you are asked during a job interview or on a job application, employers can only ask about convictions that have not been expunged.  Expunged criminal records cannot be used against a person when they are applying for or renewing a license, permit, or certificate necessary to engage in any activity, occupation or profession.

Banruptcy

When times are tough, finances can take a hit. That’s why there is bankruptcy relief. At O’Brien & Dekker, we understand the strain financial stress can bring. It can happen to anyone. There’s no shame in it.

Instead, you can ease your burdens by filing a Chapter 7 bankruptcy, for full dissolution of your debts. There’s a reason it’s called “bankruptcy protection.” And we provide it.
Among Our Successes

Helping financially strapped individuals keep their assets
Obtaining complete debt relief so people can start over
A Few Facts

A simple, personal bankruptcy can be completed in about six months.
You won’t necessarily lose your car or house in a bankruptcy.
Bankruptcy is a commonly used tool—

about 1.3 million people filed for bankruptcy in 2011.

Divorce is now called Dissolution of Marriage. A dissolution of marriage is a civil lawsuit to end a marriage. It arises in a dispute in which the husband and wife cannot resolve their problems, and are asking the court to make the final decision and issue orders concerning child custody, child support, parenting time (visitation), spousal maintenance (alimony) and the division of property.

A dissolution of marriage is started by one spouse, the “petitioner,” filing a document called the “Petition for Dissolution of Marriage” with the clerk of court. In this initial petition, the petitioner must select state the grounds for requesting a dissolution of marriage from those listed in the statutes. The most commonly stated grounds for a dissolution of marriage is the “irretrievable breakdown of the marriage.” A marriage is irretrievably broken if either party believes that it is irretrievably broken. Indiana is considered a “NO FAULT” divorce state so that either party may petition for a dissolution of marriage without the other agreeing to it and without the need to “prove” grounds for a dissolution.

After the filing of the Petition for Dissolution of Marriage, the clerk of court serves the other spouse, the “respondent,” a copy of the petition and a summons by certified mail, hand delivery, or by leaving it at the respondent’s residence with a person over the age of 18. If the respondent’s residence is not known, a legal notice may be printed in a newspaper. The respondent may (but is not required to) file an answer in response to the petition or a counter-petition for dissolution of marriage.
What is a Legal Separation?

A Petition for Legal Separation initiates an action that does not legally end a marriage, but allows the court to issue orders concerning child custody, child support, parenting time (visitation), spousal maintenance (alimony) and temporary division of property. The parties remain married, but live separately. A legal separation may be decreed by the court for a period not to exceed one year upon a finding that conditions in or circumstances of the marriage render it currently intolerable for both parties to live together but that the marriage should be maintained.

A legal separation may not be commenced or pursued if an action for dissolution of marriage is pending, or if a counter-petition for dissolution of marriage is filed by the respondent spouse. If a legal separation is granted, the court may continue the marriage for a period not to exceed one year from the date of the legal separation decree. At any time prior to the expiration of the one year, the parties may petition the court to dismiss the legal separation or convert it to a dissolution of marriage. If no action is taken, the legal separation ceases at the end of the one year period.
What are Temporary (Provisional) Orders?

The court may issue temporary (or “provisional”) orders to be in effect while the case is pending and before the final decision. The person seeking temporary orders will file a motion or petition with the court (either with or following the filing of the Petition for Dissolution of Marriage or Legal Separation) for such things as the use of the marital residence, child custody and parenting time (visitation) rights, child support, spousal maintenance and assignment of responsibility to pay marital debts (such as the house or rental payments, car payments, insurance, utilities, finance companies and charge accounts) and the need for any restraining orders. These temporary orders are not necessarily what the court will award as a final order when the case is resolved.

Upon the motion or petition of a party to determine temporary or provisional orders, the court will schedule a hearing to determine the provisional orders that will control during the time the dissolution of marriage is pending. In cases involving minor children, Indiana law requires the court to schedule the hearing to determine provisional orders within 21 days of the filing of the motion or petition. In such instances, a notice of provisional orders hearing is normally served on the respondent with the summons and Petition for Dissolution of Marriage or Legal Separation.

By separate motion or petition or as part of the motion or petition for provisional orders, a party may request that restraining orders be issued. Restraining orders are orders that restrict or prohibit one or both of the spouses or others from certain behavior and activity. Restraining orders may be granted prohibiting harassment or abuse of the other spouse or excluding one of the parties from the marital residence. Restraining orders may also be granted to prohibit one or both spouses from transferring or disposing of marital funds or assets.

All temporary orders and restraining orders may be modified by the court on formal request, if appropriate. Temporary orders, unless modified, usually remain in effect and are enforceable from the time the court approves the order until the final action is granted.
How is Child Support determined?

Unless a child is incapacitated or a court declares a child emancipated (self-supporting), the duty to support a child under Indiana law ceases when the child reaches his or her 21st birthday. The amount of child support must be determined by the procedures and schedules outlined in the Indiana Child Support Guidelines. The Child Support Guidelines contain basic support schedules that must be used to determine the proper amount of child support, based on the number of children and the combined gross income of the parents. The support schedules are based on the average cost of raising children in households across a wide range of incomes.

To calculate the appropriate amount of child support, the court first calculates the gross (pre-tax) weekly income of each parent. The gross weekly incomes of both parents are combined and the total is used to locate the proper basic child support obligation on the support schedules. Adjustments for the costs of medical insurance for the children, necessary child care and, if appropriate, college expenses are then added, and the resulting total child support obligation is divided between the parents according to the percentages of each party’s gross weekly income to their total combined gross weekly income. The non-custodial parent must pay his or her percentage share of the total child support obligation to the custody parent. The custodial parent is presumed to expend his or her percentage share of the total child support obligation on the child while the child is in his or her care. The Child Support Guidelines also recognize that a non-custodial parent who regularly exercises parenting time (visitation) with a child will also expend funds on the child while exercising parenting time. Thus, a non-custodial parent may be awarded up to a 10% discount on his or her child support obligation by regularly exercising parenting time. To get an estimate of a basic support obligation, try the Child Support Calculator.

The amount of support determined by these calculations is presumed appropriate. The court has discretion, in certain circumstances, to deviate (higher or lower) from the support obligation determined under the Child Support Guidelines when it would be inequitable to apply the support obligation determined under the Child Support Guidelines. If the court deviates from the support obligation determined under the Child Support Guidelines, the court must explain in writing why a deviation is warranted. Except in rare circumstances, child support must be paid to the Clerk of Court by way of a court order requiring the employer to deduct support from wages.
What is Spousal Maintenance (Alimony)?

Indiana law now calls “spousal maintenance” for what used to be called alimony. Spousal maintenance may be awarded as part of the provisional orders in order to maintain the standard of living (status quo) of the parties while a Petition for Dissolution of Marriage or Legal Separation is pending.

Indiana law allows only under very limited circumstances for spousal maintenance to be awarded to a spouse as part of the final Dissolution Decree or Decree. Spousal maintenance cannot be ordered by the court unless one of the following four circumstances exist: 1) The parties agree to spousal support in writing; 2) Due to physical or mental incapacity, one spouse’s ability to himself or herself is materially effected; 3) Due to physical or mental incapacity of a child, the custodial spouse must forego employment to care for the child; or 4) Due to the marriage, one spouse’s education, training or employment was unreasonable interrupted for homemaking or child care justifying an award of “rehabilitative maintenance.” In the case of “rehabilitative maintenance,” the court may order up to three years of rehabilitative maintenance to enable the spouse to get training or find appropriate employment.
How is Child Custody Determined?

Indiana courts grant custody rights to parents based on the best interests of the child. There is no legal presumption favoring one parent over the other. In determining the best interests of a child, the court will consider several factors including the age and sex of the child, the wishes of the parents and the child, the child’s relationships with parents and siblings, the child’s adjustment to home, school, and community and the mental and physical health of all persons involved. The court may order an investigation or evaluation of all persons involved by a custodial evaluator who will then report his or her recommendations to the court for the court’s consideration in determining child custody issues.

There are two types of custody rights that may be granted under Indiana law. “Physical Custody” is the term given to the parent who is responsible for the day-to-day care of a child. The parent not granted physical custody is entitled to reasonable parenting time (visitation) rights. “Legal Custody” refers to the authority and responsibility to make major decisions concerning a child’s upbringing, including a child’s education, health care and religious training. The court may award joint legal custody of a child or children to the parents. If joint legal custody is awarded, the parents will share equally in making major decisions concerning a child’s upbringing. An award of joint legal custody, however, does not mean there will be an equal division of the physical custody of a child.
How is “Parenting Time” (Visitation) Determined?

Visitation is now called “parenting time.” The parent not granted physical custody is entitled to reasonable parenting time rights unless, after hearing, such parenting time is found by the court to be harmful to the health and well being of the child. Like custody determinations, the primary consideration in determining parenting time is the best interests of the child. Prior to March 31, 2001, each county or court in Indiana provided its own standard order or guidelines for parenting time. Effective March 31, 2001, the Indiana Supreme Court adopted the Indiana Parenting Time Guidelines as the presumptive guidelines for determining parenting time in all Indiana counties and courts. The Indiana Parenting Time Guidelines contain presumptive schedules for the minimum parenting time a non-custodial parent should spend with a child. The Guidelines do not prevent parents from agreeing to or the court from granting additional or reduced parenting time in any given case. The detailed schedules for parenting time for children of various ages and a thorough discussion of the policies behind and interpretation of parenting time schedules can be found by reading the Indiana Parenting Time Guidelines.
How Is Property Divided After Termination Of A Marriage?

Indiana statutes define what is marital property. Marital property means all assets of either or both parties including real estate, personal property, intangible property, stocks and bonds, bank accounts and retirement plans. The court has authority to divide any assets of the parties whether those assets were owned by one spouse before the marriage, acquired by one spouse in his or her own name after the marriage or acquired by the joint efforts or in the joint names of the parties.

The court is to presume that an equal division of marital property between the parties is just and reasonable. However, a party may rebut this presumption by presenting evidence that an equal division would not be just and reasonable including evidence of one of the following five factors listed in the statute:

1) The contribution of each spouse to the acquisition of the property;

2) The extent to which the property was acquired by one spouse either before the marriage or through inheritance or gift;

3) The economic circumstances of a spouse at the time the property is to be divided, including whether to award the residence or the right to live there for the period of time to the spouse having custody of children;

4) The conduct of the parties during the marriage relating to the disposition or dissipation of marital property; and

5) The respective incomes or earning abilities of the parties.

In deciding the property division, the court will apply the five factors listed in the statute to the evidence presented. If an equal division of property is not awarded, the court must explain in writing why an equal division would not be just and reasonable.
How long does it take for a Dissolution of Marriage to be final?

When an accident leaves you with healthcare expenses, injury, and loss of wages, O’Brien & Dekker can help you recover expenses and secure compensation for your suffering and losses.

We know personal injury law, what you can ask for, how to negotiate with insurance companies and how to represent you in court, if necessary. We take a firm yet professional approach in our quest to see that you are appropriately compensated.

 Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property​    wikipedia​.com

Among Our Successes

Negotiated settlements exceeding initial offers
Trial representation resulting in top awards
Coverage of all medical bills

A Few Facts

A personal injury claim must be filed with two years of your injury.
The law allows for victims to made be whole for injuries caused by negligence, intent or recklessness.

dui

Indiana has an unusual means of referring to what most of us call DUI or DWI; "driving under the influence" and "driving while intoxicated" respectively. Instead of those more commonly used abbreviations, Indiana prefers to call its intoxication behind the wheel offenses "OWIs," which is short for "Operating While Intoxicated." Though an unusual name, an OWI and its resulting punishment are typical of the serious and harsh approach nearly every state takes in prosecuting its drunk drivers.
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Indiana law uses two theories to prosecute drivers under its criminal rules. The first is a per se theory. A per se violation occurs when a person's blood alcohol level exceeds the limit proscribed by state statute. Indiana law sets the per se floor at .08 percent. A majority of states in the U.S. use .08 percent as the legal level of intoxication for adults. Indiana state law does not allow the arrestee to make a decision about what type of blood alcohol test to take. Instead, the arresting officer is authorized to make that determination. Where an arrestee's test results show that he or she was driving with a blood alcohol level at or greater than .15 percent, he or she may be subjected to heightened punishment.

In some situations, the state may wish to argue that a person, though not clearly in violation of the per se laws, was under the influence. This argument is generally used in two situations. The first instance is where the arrestee refuses to take a blood alcohol test. Second, where the arrestee has submitted to the blood alcohol test and given results below .08 percent, but whose normal driving ability appears impaired by alcohol or drugs. In these types of situations, the arrestee, though he or she does not meet the per se test for intoxication, may still be impaired enough to receive a charge of OWI.

At the OWI trial proceeding, the prosecution will bring in the arresting officer's observations in order to prove that a driver was noticeably and problematically under the influence at the time of arrest. In making its determination of guilt or innocence, a court will consider field sobriety test performance, driving pattern, physical appearance, speech pattern, and general impressions of the officer. At an OWI proceeding that does not rely on the per se theory, the prosecution is charged with convincing the court that the defendant did not have control of his or her faculties due to consumption of some intoxicating substance or substances.

A first time offender in Indiana will have his or her license suspended and be subject to fines and probation. Some courts will add jail time to even a first offender's punishment, especially in cases of extremely high blood alcohol levels. A second offense carries with it probation, fines, and a license suspension of six months to a year. Also, as with a first offense, the court may decide to impose a jail sentence and may even elect to prosecute the offender as a felon, if the circumstances of the OWI so indicate.

Indiana OWI law is designed to encourage defendants to plead guilty. A guilty plea, though problematic in other ways, is the fastest and best way to ensure speedy reinstatement of driving privileges. Of course, no plea decision should ever be made without the advice of a competent attorney. Indiana OWI laws, with their many nuances and subtle points, are no exception to that rule. 

Anyone accused of OWI in Indiana should seek legal counsel as quickly as possible.

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