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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 law - educational expenses
    The way I understand this, children of paternity have more rights then of divorced children? Also, to set the record straight, not all divorced mommys "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" And who said the divorced mom does not have to help pay college expenses? Yes, if you are married then as married parents get to decide if they wish to pay for their child's college expenses but you lose that decision when you get divorced. I would like to know what politician thinks that once a child turns 19 years old that they no longer need to eat! It is disturbing to me that any parent, mother or father, does not want to help their children get their college education!
  • 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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

    2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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    4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

    5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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