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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

    2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

    3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

    4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

    5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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