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Determining dependency in child support

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Parents and family law attorneys have been given more guidance on what courts are required to do when crafting child support orders and determining which parent can claim a child as a dependent.

A new state statute that took effect July 1 ties together multiple concepts that before had only been recommended by the Indiana Child Support Guidelines. Family law attorneys say the changes will help them determine how to advise their clients on what to expect in the child support orders and legal process. But some lawyers say the changes don’t necessarily simplify the process and they believe that more complicated family law litigation could happen as a result.

cassman-ryan-mug Cassman

“All of these concepts previously existed in some form in statutes and Indiana case law, but they were difficult to reconcile,” said Carmel family law attorney Ryan Cassman at Coots Henke & Wheeler. “The recommendations were not always followed. The old practice of simply alternating the exemptions has been the norm, and I don’t think it will be easier now because that old way was very easy, and this will be complex, but hopefully fair.”

Indianapolis attorney Andrew Soshnick, a Baker & Daniels certified family law specialist and former chair of the Indiana State Bar Association’s family law section, says this statutory change hits at the heart of most child support cases because of the income focus. Neither the ISBA nor the Indiana Judicial Center have kept track of specifically how many of these provisions in the new law had been followed statewide in the past, but anecdotally attorneys say courts didn’t always include those factors as is now required.

“Most well-informed family law practitioners have already dealt with the tax exemption issue in a manner as contemplated under the new statute,” said Indianapolis attorney Carl Becker with Newton Becker Bouwkamp Pendoski. “This includes losing the right to utilize the exemption if the payor is not current on child support at the end of the year. But because there are often arguments regarding what has or has not been paid, this will provide for a mechanism of providing notice when the payee believes there is an arrearage while allowing the payor an opportunity to prove he or she is current.”

The changes were made in House Enrolled Act 1427, which moved through the legislative process mostly unopposed. Only a handful of senators strayed from supporting the bill after unanimous House approval, likely because it only codifies principles that the legal community has become familiar with and began seeing implemented since the revised guidelines took effect in January 2010.

Specifically, the amended parts of Indiana Code 31 delve into the definitions of “custodial” and “non-custodial” parents and require a court to specify in a child support order which parent can claim a child as a dependent for federal and state taxes. It established seven factors the court must consider in determining that, which Cassman says is one more than what the guidelines recommended. Those first six factors include the value of claiming that child at the marginal tax rate of each parent, the parental income levels, age and number of years that child would be a dependent under the parent’s care, the percentage of costs each parent pays in supporting the child, the monetary amount the parent might have incurred under a property settlement in divorce, and any financial aid benefit for postsecondary education.

dependentsBut family law attorneys say a seventh “catchall” provision allowing the court to consider any other relevant factors is one of the most significant changes. Before now, most lawyers and courts have focused on the second factor involving the parents’ income, and the value attached to each being factored in the dependency claim. Very few have honed in and based arguments or resolutions on the other factors, though. That may now change as the new law is implemented.

“The addition of the catchall provision may become relevant as lawyers and litigants focus on this change and develop arguments in each category, but in the short run it probably will not make much difference since the focus traditionally has been on incomes and the values of the exemptions,” Soshnick said. “Lawyers and litigants could create some sophisticated arguments and even think about offering expert testimony. Time will tell if it becomes more relevant.”

Other aspects of the new law are pretty tax-specific in purpose, but Cassman says they all serve the same practical effect: determining how litigants support a child. In order to claim a child as a dependent, a court is required to include in an order that the parent must have paid at least 95 percent of the child support for the calendar year.

That 95 percent payment aspect could be a point of contention in some cases, according to Cassmann. He wonders if extracurricular activities, educational costs, and medical reimbursements are considered “child support” for purposes of this provision as is contemplated in other parts of the 2010 guidelines.

The provisions would seem difficult to apply in some cases, such as where a payor has variable support revenue from commissions, bonuses, or irregular income. Cassmann says he found the Legislature’s use of the phrase “parent who pays support” rather than noncustodial parent interesting, because that would apply to negative support orders where a custodial parent actually pays the noncustodial parent as a result of income and parenting-time credit disparities.

Cassmann says this law is income-based and tax-focused in many aspects, and it stipulates that prosecuting attorneys or private attorneys who take up any Title IV-D paternity or child support matters as part of a case aren’t required to mediate, resolve, or litigate a dispute that arises about a parent’s right to claim a child as a dependent. That aspect of the new law could complicate the process for family law attorneys. Historically, attorneys, mediators, and judges would split the exemptions evenly and sometimes rotate them based on odd and even years.

“That approach felt somewhat fair, and frankly was easier than analyzing the true tax ramifications,” he said. “I think that approach is behind us and we will see more sophisticated analysis of the tax ramifications, as well as some creative arguments regarding how giving one parent or the other the right to claim would be beneficial to the child. We may see the use of CPAs more often to assist with this analysis.”•

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  • short sighted legislators
    The requirement that a non-custodial parent be current on their child support obligation is short sighted. My girlfriend allowed her ex-husband to claim two of their three children in order to increase the size of his tax refund that was being diverted by tax intercept to help satisfy the arrears that he incurred when he was laid off from his job. Why is it that a custodial parent can understand that increasing a non-custodial parents tax refund can lead to more child support collections, but out legislators can't?
  • Does arrears count?
    As a parent with order I am confused if it just refers to current order for that year or is arrears considered apart of it? And if it is only that calendar year, what if I received support paying parents taxes, state seized monies from accounts and they pay additional amount weekly towards arrears...how do these monies come into account while trying to figure out calculations?

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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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