Author: Alford Law Office

New Year, New Life – Why Do Divorce Filings Increase in January?

New Year, New Life – Why Do Divorce Filings Increase in January?

Ask most any divorce and child custody attorney and they will tell you that divorce and timesharing modification filings increase in January.  According to the American Academy of Matrimonial Attorneys, filings in the month of January increase by as much as 27%-33% in the month of January and February over the average month.

In a survey of 2000 couples from 2014, one in five of those couples stated that they intended to file for divorce after the holiday season.  This is fairly common.  Many couples are reluctant to break up the home or begin proceedings during Thanksgiving, Hanukah, or Christmas.  While it may not have any real legal ramifications, it does not exactly help one’s social standing to serve your spouse with divorce papers on Christmas Eve.

Spouses with children are even more reluctant to file during the holidays.  There is so much tradition and emphasis on the holidays, especially Christmas, that many parents cling to the idea that they will give the children just one more Christmas with the family intact.  The efficacy of this is debatable depending on the toxicity of the spouse’s relationship.  One could wind up with scenes more reminiscent of the Christmas Vacation movie rather than a Hallmark card or Norman Rockwell painting.

The newly single (or those wishing to be) do not appear to want to be alone for long.  According to a MarketWatch article from 2015, January 4th is the peak date for online dating sites.  According to MarketWatch, popular online dating site, Match.com, sees a 38% increase in new registrations between December and February.  Actually around one third of new marriages now actually begin online.  Some sources say marriages that begin online actually have a higher success rate than those who meet offline.  On the other hand, if things do not work out, there is always next year.

Photo courtesy of Epic Fireworks

Can I Restrict the Other Parent’s Time With the Child?

Can I Restrict the Other Parent’s Time With the Child?

A gut wrenching scenario in a coparenting relationship is when one parent believes that something unsettling or potentially dangerous is occurring while the child is at the other parent’s home.  What can you do once a child is old enough to actually convey what is happening at the other parent’s home and those fears and concerns are confirmed? First, you will need to make sure the court will share your concerns.

A recent case decided by the Kentucky Court of Appeals dealt with the issue of restricting a father’s timesharing with his daughter.  In the case of Ryan v. Ryanthe mother moved to restrict the father’s visitation based on allegations made by the parties’ teenage daughter that the father smoked marijuana.  The court entered an ex parte (without a hearing) order suspending the father’s visitation until a full hearing could be conducted.  The father immediately took a drug test showing that he had not smoked marijuana at the time the child was with him.  However, a subsequent hair sample test showed traces of marijuana in his system from sometime within the past 12-14 months.  The commissioner recommended resuming the father’s visitation, but the court actually restricted his visitation and ordered it to be supervised.  On appeal, the Court of Appeals reversed the trial court’s decision finding that the court had abused its discretion in restricting the father’s time with the child.

This case illustrates the fact that in order to restrict a parent’s time with a child, there must be substantial and concerning evidence.  Kentucky Revised Statutes 403.320(3) specifically states that “the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health.”  This is an objectively high standard to meet for the person trying to restrict the other parent’s time.  A further consideration is that another statute specifically states that “[t]he court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.”  In the Ryan case, the Court of Appeals made a point of the evidence did not indicate that the father had ever used marijuana in the presence of the child (As a side note, with the trend of decriminalization of marijuana possession, judges seem to be less concerned about the mere fact a parent uses marijuana without proof that it is being used while the child is present.)

Situations that would certainly cause the court to believe a serious endangerment existed are abuse or neglect of the child, felony drug activity while the child is present, or mental illness and other conditions the parent may experience the prevent him/her from being able to care for the child.

Photo courtesy of angrylambie1

Can I Get Temporary Maintenance While the Divorce is Pending?

Can I Get Temporary Maintenance While the Divorce is Pending?

You have just been served with divorce papers.  You’re world is crumbling down around you.  You have been a stay-at-home parent for years and now you are staring down the likelihood of trying to reenter an unforgiving job market. You feel like someone has just struck a match to your entire world.  How will you be able to support yourself and the children?

We have previously discussed maintenance but we have never really delved into temporary maintenance.  Temporary maintenance is just that, maintenance that is temporarily ordered to be paid while the divorce is pending.  Temporary maintenance is awarded in situations where there is a need by one party and the other party has the ability to pay.

A request for temporary maintenance begins with filing a motion with the court requesting temporary maintenance.  This motion must be accompanied by your last three pay stubs or income information if you are self-employed.  Obviously, if you are unemployed, you can skip this step.  The motion must also include an affidavit detailing your monthly expenses and income and, finally, information about the income of the party from whom maintenance is sought.  This financial affidavit is vital to your success.  Estimating your monthly expenses too low will have you struggling by the end of the month.  If you estimate too high, you will lose credibility with the court.  It is imperative that you work closely with your attorney to develop this affidavit as accurately as possible.  The motion itself, is an opportunity for you to lay out to the court the factual basis for any special relief that you may also be seeking such as service on the marital debt.

Unlike post-judgment maintenance in which the court has to take into consideration the division of marital property and debt before making the determination, the court primarily looks to each party’s income, living arrangements in making a temporary maintenance decision.  The length of the marriage and lifestyle the parties enjoyed during the marriage also come into play.  The fact that a stay-at-home mother can temporary live with family while the divorce is pending may not be persuasive on a judge.  There is an old case in Kentucky in which the Court of Appeals said that a wife should not be reduced to the standing of a “scullery maid” simply because she is getting divorced.

Some things to keep in mind in dealing with temporary maintenance.  The first is that temporary maintenance is not appealable in Kentucky because it is not part of a final order.  Likewise, just because it is ordered (or denied) at a temporary hearing does not necessarily mean that the court will not change its mind at the final hearing.  Therefore, you can either strengthen your case or destroy it in the interim between the temporary hearing and the final hearing.  Finally, the court has broad discretion in whether to award temporary maintenance and whether to continue it as part of the final judgment.

Photo courtesy of torbakhopper

“What About Fido?” Who Gets Custody of the Family Pet?

“What About Fido?” Who Gets Custody of the Family Pet?

The reality is that to many people, their pets are not just like their children, they are their children.  I have been shown family photos that included pets and more than one client has had their pet’s picture made with Santa at Christmas time.

Despite the strong feelings that these people have for their pets, under Kentucky law courts do not equate pets to children.  Kentucky courts treat pets as personal property.  That means that your beloved family dog is treated the same as a microwave oven or a leather recliner.  In my years of practice, I am the only attorney I know of who has actually litigated a pet visitation issue (the other attorney in the case retired).  At the end of that case, the judge said she would never hear another one.  That is the attitude you are likely to encounter with most judges.  They will not order joint custody of a pet any more than they will require you to share time with your blender.

With all that being said, it does not mean that the parties, themselves, cannot come to some sort of agreement on sharing time with their pets.  This is an other issue in which mediation and a spirit of cooperation can end in a positive result.  Many parties are able to work out an arrangement to share time with their pets.  In such a situation, the courts will usually adopt that agreement as part of the final divorce decree.  Be aware, however, that if it becomes necessary to go to court to enforce that agreement in some manner or modify, a judge may still be dubious about the situation.

There may be additional considerations depending on your particular situation.  For instance, some veterinarians seem cautious about the idea of shared custody of a dog and do not recommend it at all for cats.  More exotic pets may be even more troublesome.  Further, keep in mind that if you got your pet from a rescue organization or pet placement program, you may have signed a contract that limited your rights to the animal and where or with whom the animal may live.  Finally, in the event of domestic violence in your relationship, it is not uncommon for an abuser to use your pet as a way of hurting you further so it may be necessary to take steps to ensure that “Fido” is protected along with you.

Photo courtesy of Stefano Mortellaro

What Are the Residency Requirements to Get Divorced in Kentucky?

What Are the Residency Requirements to Get Divorced in Kentucky?

It is something that may not jump immediately to mind, but each state has certain residency requirements before a divorce will be granted.  Areas like Reno, Nevada, became famous for its “quickie divorce.”  According to HowStuffWorks Nevada shortened its residency requirements as early as 1898 to try to draw people to their state specifically for divorce.  Kentucky falls somewhere in the middle of the pack with a residency requirement of at least one hundred eighty (180) days in order to get divorced in the Commonwealth.

Residency is important because it is key to the court determining whether it has jurisdiction to even hear the case.  Jurisdiction involves the relationship or contact a person has with the state.  A court’s ability to hear and decide a divorce case is determined by the residency and domicile of a party and his or her spouse. The general rule in the United States is that a person needs to file a divorce action in the state or county where the residency requirements are met.
In Kentucky, there are two basic ways our state can have jurisdiction to enable someone to institute an action for divorce:
  • The person filing the action must have resided in Kentucky for at least one hundred eighty days before the commencement of the action.
  • If, on the other hand, the petitioner (the person filing the action) is a non-resident, the respondent must have resided in Kentucky for at least one hundred eighty days prior to commencement of the action.

Keep in mind that if only the petitioner is a resident of Kentucky, the court will be able to dissolve the marriage, but it will not have jurisdiction to address any of the other issues such as maintenance or property division.  This could set up a situation where you can return to being a single person in Kentucky, but you will have to go back to the other state to resolve the other issues.

Photo courtesy of Tammy Strobel
How Do I Make Sure My Child Support Comes Out of My Ex’s Paycheck?

How Do I Make Sure My Child Support Comes Out of My Ex’s Paycheck?

When you are a single parent trying to raise a child (or children) on your own, it is vital not only that you receive support from the other parent, but that you receive that support regularly and on time.  Failure to receive timely support payments can cripple your household finances.  That is why it is so important to make sure safeguards are in place to try to ensure that you receive those payments.

As a general rule, child support is supposed to be deducted from the child support obligor’s paycheck.  Sometimes parties agree to bypass the state collection system and some judges are lax on actually requiring the child support to be paid by wage garnishment.  Nevertheless, child support is supposed to be paid by a wage assignment so that the obligor’s employer deducts the support and sends it to the Kentucky Child Support Enforcement at Centralized Collection Unit.

In order to make sure that child support is paid by wage assignment, it is important that the child support order specifically state that “immediate wage withholding shall apply.”  If your order does not say that, a court will grant a modification to include that language if a proper motion is made.  Once your order includes the necessary language, that actual wage withholding form must be completed, signed by the judge and sent to the obligor’s employer.  Additionally, if you are represented by a private attorney, Federal Income Withholding For Support Form OMB 0970-0154 must also be completed and submitted to the court and to the employer.

Once the proper wage withholding forms are completed and submitted to the employer, the next thing to do is make sure that you actually receive the support.  Under Kentucky Administrative Guidelines, the Centralized Collection Unit is supposed to receive the payment, process it, and get it out to recipients within forty-eight (48) hours.  If you want your child support payments deposited directly into your checking or savings account, you can go through the Kentucky Child Support Interactive Website to set that up.  You will also want to contact your local county attorney’s office to apply for services.  Once you apply for services through the county attorney’s office, you will be assigned a caseworker who will keep track of the child support payments that are paid, if the obligor is behind and, if necessary, refer the case to the county attorney for collection efforts such as contempt actions or even criminal charges.  The county attorney’s office provides these services free of charge and have tools at their disposal that private attorneys do not.  The chief among these being the ability to intercept an obligor’s tax refund to go toward child support arrearage.

While your ex may not like it, he or she has an obligation to provide for your child.  The best way to make sure that happens is with a proper wage assignment.

Photo courtesy of Morgan

How Can A Parenting Journal Help Your Custody Case?

How Can A Parenting Journal Help Your Custody Case?

If you are facing a contested custody case, one of the best tools you can have in your arsenal is a parenting journal.  A parenting journal is simply a record or chronology of events that happen between you and the other party and/or children.  This may be a computer file, a Google calendar, or simply hand-written notes kept in a pocket notebook or calendar.  Things to make a note of may include:

  • Incidents that occur at visitation exchanges or missed visits
  • Negative comments made by the opposing party
  • School issues
  • Extracurricular activities
  • Incidents of domestic violence
  • Statements made by the children about abuse or neglect
  • Observations about changes in the children’s behavior

It is important that you write in your journal on a regular basis for a couple of different reasons.  The first is because this way you will get in the habit of keeping the journal.  Second, the journal is much more persuasive if it is maintained and entries are made as they occur rather than trying to “rebuild” the event from memory days or weeks later.  Do not use this journal as your private diary.  Keep in mind the entries may be used in your custody hearing and become part of the public record.

Because the entire point of making the journal in the first place is to assist you in your court case, it is also important to make journal entries fairly.  Do not use the journal as an opportunity to bash the other parent; you will do your case no favors.  This includes using profanity, personal attacks on your ex, or other “code” words for your ex.  I had a case one time where a grandparent thought they were extremely clever by referring to their former daughter-in-law as “Tulsa” (read it backwards).  If your journal is completely slanted or never has anything positive at all to say about the other parent, you will lose some credibility with the court or the GAL.  Do not be afraid to mention your own issues as well.  Remember the whole point is to help build your credibility.  You cannot do that without exposing some of your flaws as well.
Finally, organize your journal.  If you keep an electronic journal, this is relatively easy.  Most tablets, smartphones, or computer word processing programs will allow you to “tag” your entries to make them easily searchable.  This will help your attorney later when the two of you are trying to prepare for court.  If you opt for the handwritten paper journal, consider using multicolored tabs to mark your entries.
Finally, keep your journal secure and private.
Photo courtesy of Bev Sykes
Does Remarriage Affect Child Support in Kentucky?

Does Remarriage Affect Child Support in Kentucky?

When parents divorce in Kentucky, the non-residential parent usually pays child support to the primary residential parent.  This child support is calculated according to a very specific formula that takes into account each parent’s gross income, payments made for maintenance, payments on prior born children, and the child’s health insurance and childcare costs.  People often ask, “What happens if my ex remarries?”  Does the new spouse’s income affect child support?

The short answer is no.  Kentucky, like most states, follows the rule that the new spouse’s income is not included in a child support calculation.  There may be exceptions in certain extreme cases, but as a general rule it does not matter.

A new spouse’s income is not considered because the new spouse has no legal obligation to support another person’s children.  Hopefully, the new spouse will not turn out to be a “wicked stepmother” and will genuinely love and care for the children, but the law does not impose any such obligation.  The new spouse’s income presumably will help defray the expenses of the household where the child primarily resides and these expenses are the types of things that are covered by child support.  However, it is presumed that the new spouse does so voluntarily and the law does not require the new spouse to continue to support the children.  Therefore, a new spouse’s income, in and of itself, is not enough to justify a modification of the child support order in Kentucky.

Photo courtesy of Jeff Christiansen

Preparing to Parent Apart

Preparing to Parent Apart

As stressful as it is for you to move out of the marital home, that stress is often even worse on the children.  Children often are left out of the loop and then these children wake up one morning and are told to pack up their things to move to a new house they have never seen.  To say that they may be troubled by this eventuality is probably an understatement.  Both parents, and especially the leaving parent, need to comfort the children and reassure them while at the same time the parents need to prepare themselves for possible custody litigation ahead.

Help the Children First

There is no single right way to help your children cope with the stress of divorce and relocating.  It will greatly depend on the age and maturity level of the children, their temperament, their coping skills and their relationship with the other parent.  If the transition is particularly difficult, you should consider enrolling the children in counseling.  Your attorney should be able to make a referral for you to a qualified therapist who can assist you.

Keep a Parenting Journal

Document, document, document.  Those are three great words of advice anytime you are thinking that you may wind up in court.  The unfortunate fact is that the legal system is often less concerned about what is the truth over what you can prove.  Custody litigation involves a number of facts that are difficult to prove and often devolves down to a “he said/she said” situation.  Therefore, the sooner you begin to keep a journal documenting important facts and your interactions with the opposing party, the more documentation you will have of the events that take place while your case is pending. You need to make your journal entries as soon after the events as they occur.  In the law, this is called a “present sense impression” and can be used at trial to essentially bolster your testimony.  A calendar and journal will provide details that might otherwise be forgotten and will present an accurate, real-time depiction of how the custody situation has been handled. This can be very useful information in negotiating custody arrangements or, if necessary, making a case before a judge.

Set a Custody Schedule as Soon as Possible

Once a divorce petition is filed in Kentucky, the other party has twenty days to respond and most judges will not schedule any hearings until after the response is filed.  All of this can add up to a month or two of time where the family is in limbo and both sides are afraid to do anything.  The sooner you can reach an amicable (or at least civil) agreement where both parents get to spend some time with the children, usually, the better the children will be able to transition to the new family dynamic.  Many times once an agreement is reached, the parties and/or the judge is hesitant to alter it if the children are adjusting and doing well.

Keep the Lines of Communication Open (if possible)

Some attorneys advise clients during a divorce to not speak with their spouse at all.  This tactic tends to just increase your legal fees and you should probably be somewhat suspicious if that is the advice you are getting.  Unless there is a situation where the other spouse is violent or harassing, it is much better if the parties can sit down and discuss issues calmly and civilly and then bring their agreement to the attorneys to be memorialized.  Remember after the custody case is over, your lawyer will go back to his/her office, but you still have to deal with the other parent at least until the youngest child turns eighteen.

Photo courtesy of Daniel Lobo

Can I Take a New Job and Pay Less Child Support?

Can I Take a New Job and Pay Less Child Support?

The payment of child support is often a source of resentment between two parents.  The person receiving it knows that it is never enough to fully support the child’s needs.  The person paying the support almost always thinks the amount they are required to pay is too high, especially if they feel the support is not going directly to the child.  As a result many child support obligors get the brilliant idea that they will just quit their job and go “flip burgers” for a living.  The logic goes that they will make less money, thus pay less child support, and “really teach my ex a lesson.”  Not so fast.

Although the idea of quitting your job and reducing your income might sound like the solution to paying what one perceives as too much child support, you may find yourself in a much worse situation.  Kentucky, like several other states, recognizes the concept of being voluntarily unemployed or even under-employed.  The basics of this concept are that given one’s training, education, and skills, he/she should be able to find a job making more money than he/she is currently earning.  Kentucky has done away with the requirement that it be proven that the child support obligor intended to lower his/her child support obligation when the obligor changed employment, but most courts will still take into consideration whether the person voluntarily quit their position or were laid off/downsized.

If the court determines that someone is voluntarily unemployed or under-employed, that person’s child support obligation would still be calculated at what he/she was previously earning or using a figure that the court believes the person could reasonably be expected to earn.  If that person is not currently earning that figure (e.g. an engineer who has decided to work at a fast food restaurant), that person is going to start accumulating a child support arrearage very quickly or a large part of the money he/she is actually earning will be going to child support leaving that person very little for his/her own expenses.  While this may sound somewhat draconian, the family court does not appreciate it when it feels that someone is trying to work the system to avoid their obligation to one’s children.

Rather than trying to scam the system (and possibly leaving you with less money to live on), it is better to pay what you are ordered to pay and maintain a close relationship with your children and a civil relationship with your ex so that you can make sure that your child is being cared for appropriately.

Photo courtesy of David Blackwell.