There are statutory presumptions for child support, custody, property division, and parenting time. These are assumptions that a judge must consider when hearing evidence, but these presumptions may be rebutted or overcome with the necessary evidentiary showing. In other words, unless evidence is presented to the contrary at final hearing, the judge is to follow the relevant statutory presumption. If a presumption is successfully rebutted, a judge may elect, in his or her discretion, not to follow it and deviate from the presumption. This blog addresses the statutory presumptions contained in the Divorce Act and how they may be rebutted.
In a divorce, the statutory presumption for division of property is that an equal division is just and reasonable. This presumption can be overcome by showing evidence that an equal division is not just and reasonable. Indiana Code § 31-15-7-5 includes the factors a court should consider when determining if the presumption has been rebutted. These include: (1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing. (2) The extent to which the property was acquired by each spouse: (A) before the marriage; or (B) through inheritance or gift. (3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children. (4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property. (5) The earnings or earning ability of the parties as related to: (A) a final division of property; and (B) a final determination of the property rights of the parties.
A party may present enough relevant evidence regarding these factors to rebut the statutory presumption and allow the judge to order a division of property that is not equal. That said, if a judge follows the statutory presumption, it is a default that has been codified in the Divorce Act and it is unlikely to be reversed on appeal. This means that one should take great care in developing and presenting evidence to give the judge the level and type of evidence necessary to rebut the presumption and not have concern about being reversed on appeal for deviating from the presumption.
When making an original custody determination, there is no presumption in favor of either parent. The judge considers the statutory factors and makes a custody decision in the children’s best interests. A custody modification is different, however, and the presumption is in favor of the current custodial parent, as permanence and stability are considered best for the welfare and happiness of a child. In order to overcome the presumption, a non-custodial parent must prove that: (1) the modification is in the best interests of the child; and (2) there is a substantial change in one or more of the factors that the court may consider when making a custody determination. The factors considered by the court can be found in Indiana Code § 31-17-2-8. The court cannot hear evidence occurring before the last custody order.
Child support is determined based on a mathematical equation which provides for support the child would receive if his or her parents lived together. The presumptive amount to be paid is that the amount of child support when computing child support by the Indiana Child Support Rules and Guidelines. However, this presumption is rebuttable and the court may find that the amount reached through application of the Guidelines is unjust and award a different amount. The trial court must make written findings if it deviates from Guideline support.
Parenting time, too, allows a judge to deviate from the statutory presumption that a parent should get Indiana Parenting Time Guideline time at a minimum. However, if a parent can show that additional time in in the child’s best interests, the court may order parenting time above Guideline time. That said, although not law, there is a growing trend toward joint physical custody. However, if the Court finds that Guideline time would endanger the physical health or emotional development of the child, it may order supervised visitation.
As you can see, a judge does not have to follow a statutory presumption if it is successfully rebutted by one of the parties. Rebutting a statutory presumption, however, can be complicated and require significant development of the evidence. In addition, this evidence must be obtained for court in an admissible format. If not, it will not be admitted into evidence. The experienced attorneys at Ciyou & Associates, P.C. can help sort out the issues and resolve your case in a way that is best for you. This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.