Indiana’s divorce process—Part 3
This blog post is Part 3 of a multi-part series discussing the divorce process in Indiana. It contains general information designed to help persons thinking about or going through a divorce (or to help those who care about someone who is thinking about or going through a divorce). It is not legal advice and is not a substitute for hiring an Indiana divorce lawyer. If you have specific questions about the law and how it applies to you and your family, talk to a lawyer.
For information about the initial steps involved in Indiana divorce cases, see: Indiana’s divorce process- Part 1 & Indiana’s divorce process – Part 2.
13. Parenting Time
Indiana Parenting Time Guidelines
Indiana law refers to the time that a child spends with the non-custodial parent as “parenting time” instead of “visitation”. Indiana law provides that all parents are entitled to reasonable parenting time unless the Court finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development.” The Indiana Parenting Time Guidelines (sometimes referred to as simply “The Guidelines”) establish rules, procedures, and time recommendations for parenting time.
Rules of Communication and Miscellaneous Considerations
The Guidelines establish rules for how parents should communicate about their children and with their children. The Guidelines also address issues such as transportation, punctuality, clothing exchanges, school and medical records exchanges, and the correct way to deal with adjustments to the parenting time schedule.
Opportunity for Additional Parenting Time
There are provisions for opportunities for additional parenting time (sometimes referred to as the “right of first refusal”). Under the Guidelines, the opportunity for additional parenting time means that “when it becomes necessary that a child be cared for by a person other than a parent or a family member, the parent needing the child care shall first offer the other parent the opportunity for additional parenting time. The other parent is under no obligation to provide the child care. If the other parent elects to provide this care, it shall be done at no cost.”
Presumed Parenting Times, Holidays, and Summer Vacation
The Guidelines also set the recommended time that a non-custodial parent has with his or her children, the division of holidays and special days between parents, and the division of the summer holiday from school. The presumed parenting time is alternating weekends from Friday to Sunday and one midweek visit for several hours or overnight. The Court can vary or deviate from this presumption based upon the evidence. The Guidelines have special provisions for children less than five years of age.
14. Child Support
Child Support, Child Support Guidelines, and Child Support Worksheet
The Court will use the Indiana Child Support Guidelines to determine the amount of child support one parent will pay to another. The parties must provide the following information to determine child support: 1) gross income of both parties, 2) work related childcare expenses, 3) health insurance costs for children, 4) the annual number of overnights that a child spends each parent, 5) whether either of the parents has children from a relationship before or after the current relationship, and 6) whether one or more children is attending a post-high school educational program (referred to as post-secondary education).
The data is put into the Child Support Calculator. The calculator will determine an “income shares percentage” for each parent based upon a comparison of the incomes of the parents, and some of the factors stated above. The “income shares percentage” can be used by the Court to determine child support, as well as medical, college, and extracurricular expenses of the children. The Child Support Calculator will produce a Child Support Worksheet with a recommended weekly child support amount. A Child Support Worksheet must be completed and submitted to the Court. The Court may also make an order for the cost of extracurricular activities of the children, such as art classes, piano lessons, summer camps, etc. This is usually an agreement or order separate from the weekly child support payment.
Health Care (Medical) Expenses of the Children
The Court is required to issue an order for a parent to pay health insurance premiums for the children if the insurance can be obtained at a reasonable cost (as determined by a formula). Unless one party agrees and is able to provide health insurance for the children and the insurance is available at a reasonable cost, the parties must complete a Health Insurance Premium Worksheet (HIPW) by inputting their information into the Child Support Calculator. The HIPW is prepared automatically by the Indiana Child Support Calculator based upon the health insurance information provided by the parents.
The Court also is required to issue orders for the payment of uninsured medical expenses for the children. The order will require the custodial parent to pay a certain amount of the child’s health related expenses (considered 6% of the child support) on an annual basis. The Child Support Worksheet produced by the Child Support Calculator will state that number at the bottom of the worksheet. Once that amount is paid, each parent is responsible for his percentage share (based upon the incomes of the parties) of health related costs not covered by insurance.
Tax Exemption
Indiana law requires that in the divorce decree, the Court must specify which party will be entitled to claim the children as dependents for purposes of state and federal taxes. The parties may agree to an arrangement, and if the parties cannot agree, the Court will select which party may claim the children for tax purposes by considering certain factors listed under Indiana law. If the Court awards the right to claim the children for tax purposes to the non-custodial parent, the non-custodial parent may only claim the children if he or she is at least 95% current on child support payments by January 31 of the year the non-custodial parent is entitled to claim the children.
College, Vocational, or other Post-High School Educational Costs
In Indiana, the Court can order divorced parents to pay all or a percentage of a child’s expenses to college or a vocational program after high school. These expenses may include tuition, room and board, books and fees. The expenses may also include some additional costs for reasonable personal expenses, such as transportation, personal products, and entertainment. If the parties did not include a request for these educational expenses at the time of the divorce, they may file an agreement for the expenses or a petition with the Court.
Orders for post-secondary educational support can continue beyond a child’s nineteenth birthday under certain circumstances. If a child is residing outside of the home for all or part of this education, this may affect the child support calculation, and the child support order may be reduced. If one or more of the children is in a post-high school educational program (such as a university, college, or Ivy Tech) a parent should complete and file a Post-Secondary Education Worksheet (PSEW) as part of the child support worksheet so that the correct amount of support may be calculated for a child’s expenses.
Income Withholding and Other Child Support Orders
Unless an exception applies, Indiana law requires a Court to automatically issue an Income Withholding Order in all cases where one party has been ordered to pay child support. When the Court issues an Income Withholding Order, this means that the amount of child support that the party has been ordered to pay will be automatically withdrawn from the party’s paycheck. The amount withheld may include amounts for current child support arrearages (past child support amounts that the party has not paid).
An Income Withholding Order will not be issued if the Court finds that an exception applies. There are three possible exceptions that the Court may find: 1) that issuing an Income Withholding Order would not be in the best interest of the child; 2) that issuing the Income Withholding Order would cause “extraordinary hardship” to the party who has been ordered to pay child support; or 3) the parties have both submitted an agreement to the Court that sets out an alternate payment arrangement.
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