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Change in emancipation law brings uncertainty

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The Indiana General Assembly’s passage of legislation lowering the emancipation age from 21 to 19 has attorneys questioning if children could be treated differently by the courts depending on whether or not their parents were ever married.

Under the old paternity and divorce statutes, children in either situation could petition for educational support up to their 21st birthday. But under amendments to those statutes passed in Senate Enrolled Act 18, which became effective July 1, the age to seek college support is now 19. There is a loophole, but it only covers children who are the subject of paternity orders.

mckinnon McKinnon

Consequently, attorneys are debating whether the Legislature meant for the two statutes to be different or if the governing body intended for the provisions to be applied equally. Both sides agree that absent any adjustment by the General Assembly, the question will eventually arrive before Indiana’s appellate courts.

Differing interpretations

Patricia McKinnon is not sure if the amended language in the paternity statute also applies to the divorce statute. As a certified family law specialist through the family law certification board, an independent certification board with the Indiana State Bar Association, she handles many child support cases.

What the Legislature intended is unclear, McKinnon said. So, she is now advising all her clients that if there is any chance their children will be going to college after they turn 19, they should get an educational support order before they are emancipated.

Prior to becoming emancipated, the statutes do allow children to petition for the non-custodial parent to help pay post-secondary education costs.

In the amended paternity statute, minors who had a child support order issued before July 1, 2012, will have until they are 21 to file for college support. Even children who are currently very young would qualify for this loophole. For those covered by a child support order issued after June 30, 2012, they must petition for education support by the time they turn 19.

No corresponding language about this exception is included in the divorce statute.

David Morris, senior deputy prosecuting attorney in the child support division of the Marion County Prosecutor’s Office, explained in an email that appellate decisions have frequently applied the divorce statute to emancipation in paternity cases, see Paternity of P.W.J., 846 N.E.2d 752 (Ind.Ct.App. 2006), affirmed and clarified on rehearing, 850 N.E.2d 1024 (Ind.Ct.App. 2006). This had been done, in part, because only the divorce statute defines emancipation.

However, whether the Court of Appeals or the Supreme Court read the two statutes in pari materia regarding educational orders remains to be seen, he wrote. “There are sound legal principles both justifying and rejecting the two statutes’ facially disparate treatment.”

Richard Mann, also a certified family law specialist, argues the statutes should be read literally.

The Legislature was aware of the difference between the paternity and divorce statutes, he said. Elected officials possibly meant to treat children who are the subject of dissolution actions differently.

Thereby, if children of divorce do not file a petition for educational support before their 19th birthday, despite when their child support orders were issued, then, Mann said, they are out of luck.

Michael Cheerva, partner at Avery & Cheerva LLP, maintained that not applying the loophole equally to paternity and divorce cases would open a Pandora’s Box.

He believes the General Assembly intended to treat paternity and divorce cases in a like manner. In fact, the language will be applied across both statutes even if the Legislature does not clarify the statute because of equal protection concerns and caselaw that treats children in paternity cases and divorce cases the same.

“I don’t think the Legislature’s failure to match the divorce statute to the paternity statute is fatal,” Cheerva said.

The author of the bill, Sen. Brent Steele, R-Bedford, said he noticed the discrepancy between the statutes when the bill returned from the House of Representatives. He tried to fix the language but House Democrats, “mad about various things,” blocked his effort.

“Did it make sense? No,” Steele wrote in an email discussing the Democrats’ action. “Did it create an imperfect bill? Yes.”

For the upcoming General Assembly session, Steele, who is also an attorney, has requested his staff research whether combining the various sections pertaining to child support into one unified section would make the provisions clearer. He maintained if the research supports his view that having a single section will bring clarity, including to the language issue, he will file a bill to combine the sections.

Cramming

mann Mann

While attorneys wrestle with language differences in the two statutes, they do agree non-custodial parents could be paying for a lot more “educational support.” Specifically with child support ending at 19, attorneys expect to see an increase in the number of educational support petitions as more families will try to get child support payments continued by telling the court the money is for college.

Traditionally, Cheerva said, the courts have considered college expenses to be limited to tuition, room and board, books and fees. However, the Supreme Court guidelines on what constitutes educational support are broad and include such things as health insurance, car insurance, clothing, incidentals and entertainment. That will likely inspire some cramming of child support into educational support.

“As this (emancipation) statute takes effect and winds its way through the courts, I suspect a lot of cases will test how much child support we can squeeze into educational support,” Cheerva said.

On this matter, Cheerva takes a literal reading. The Legislature specifically provided for post-secondary educational support to be separate from child support, and the Supreme Court has issued guidelines that define college expenses very expansively.

“Who are we to second guess the Legislature and the Supreme Court?” he asked. “They give us the rules and we use them.”

Steele agrees that attorneys will try to get more costs covered under educational support orders but he warned them to be careful. If lawyers keep pushing, elected officials will hear the complaints from constituents and end all provisions for educational support.

“Lawyers and practicing family lawyers ought to understand, college expenses beyond the 12th grade are hanging by a thread in the Indiana Legislature,” Steele said. “Tons of legislators are happy to say you don’t get any college expenses.”

Prior to the emancipation law taking effect on July 1, the Court of Appeals did address the issue of educational support in Sexton v. Sexton, 34A02-1111-DR-1059.

Writing for the majority, Judge Nancy Vaidik held that Public Law 111-2012 will still enable a child to seek help with college expenses although the age to file for such support has been lowered to 19.

However, she pointed out, since designating support as “educational” was often not done prior to the enactment of Public Law 111-2012, “we anticipate that many support orders for college-age students may not specifically refer to the support as educational, although in reality it is. Trial courts must determine on a case-by-case basis whether support is in fact educational support.”•
 

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  • Emancipation vs tax
    My ex emancipated my daughter, pays very little of the college expenses but yet still states he should get to claim her for taxes?? How does an emancipation ruling affect the child's right to declare themselves.
  • Not Right
    How is it that everyone feels sorry for the "poor little divorced kids"? They have it made! Mommy can collect child support, and then just because she is a single mom...she gets a bunch of extras and tax breaks....all the while having the state pay her insurance and housing...she is not held accountable for her share of supporting the child...the taxpayers are covering her share..... but the father has to work and pay his support or go to jail... College expenses...mommy does not have to pay for her share because she is a single parent...but the father does? Give me a break! I get tired of seeing "non custodial this and non custodial that!".....it is both parents responsibility I also feel that our government is providing a disgrace service for children of intact marriages.....if you are married, you and your spouse make the decision on if you will contribute any or what amount for college.. It is a double standard!!!!

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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