Category: divorce

Six Things Your Paralegal Wishes You Knew

Six Things Your Paralegal Wishes You Knew

 

Many divorce and child custody lawyers use paralegals to assist them in their practice and to provide clients with excellent service.  These paralegals are often the unsung heroes of family law litigation.  Clients sometimes do not fully appreciate the role the paralegal plays in their case.  Therefore, here are six things your paralegal wishes you knew.
  • I can save you money – Many law offices bill for their paralegal’s time at a much lower hourly rate than the attorney’s time.  While a paralegal cannot practice law, they can often explain aspects of the process of your case or answer questions without you being charged the attorney’s hourly rate.  Sometimes, they may even be more up to speed on your case than your attorney because they are dealing with the incoming pleadings and discovery as it comes into the office.
  • I can cost you money if you are not organized – Part of the paralegal’s job is to help organize information on your case and help get it ready to be presented to the court.  If you have taken the time to prepare everything requested of you, organize it in an orderly fashion and provided when it is requested, you will save the paralegal a lot of time and keep your fees lower.  Conversely, if you show up with garbage bags full of bills, old shoeboxes of receipts, and folded up, coffee-stained documents, your paralegal will have to spend additional time wading through all of that to make sense of it.  If your legal team cannot make sense of it, there is no way to make the court understand it.
  • I am easier to reach than the attorney – Admittedly, sometimes you just need to hear your attorney’s voice.  However, most divorce and child custody practitioners are in court on an almost daily basis making it difficult to return calls.  The paralegal is almost always in the office.  If they cannot answer your question immediately, they can usually get you an answer fairly quickly.
  • My time is valuable – The paralegal, like your attorney, is here to help you through your case.  Paralegals are trained in a lot of things, but they are not mental health professionals and cannot be your therapist.
  • I am often just as frustrated with the system as you are – Contrary to what a lot of people believe, good law firms try to move their clients’ cases through the system as efficiently as possible.  Coordinating multiple attorneys’ schedules along with a court docket bursting at the seams can make that task extremely difficult.  Moreover, sometimes the law or a ruling is simply not fair, but there may be very little we can do about it.  We understand your frustrations and try to empathize.  Remember, we are on your side.
  • I deserve your respect – Paralegals work very hard at often thankless tasks.  You make it more difficult when you treat them with anything less than the utmost respect and consideration.
Planning for a Divorce

Planning for a Divorce

As we have previously discussed, divorce filings increase dramatically in the months of January and February.  Many people are considering a divorce in the new year now that the holidays are behind them. There are several things you should do to prepare for an impending divorce.  The following will help you plan step-by-step for your divorce.

DO YOUR HOMEWORK

You would not believe the number of people who meet with their divorce attorney and have no idea about their financial status.  Take this opportunity to learn about any prenuptial agreements that may exist.  Learn about your household budget.  What are your monthly payments?  Learn what assets you and your spouse have both individually and together.  Research whether there are investment or retirement accounts. Research the value of those assets.  The property valuation administration and Kelly Bluebooks are excellent resources.

GATHER YOUR PROOF

Take this opportunity to put together as much documentation as you can.  Gather bank records, investment/retirement account statements, credit card statements, deeds, titles, and insurance policies.    You can find a more detailed list of things to bring to your first meeting with a divorce attorney here.

Although your attorney can usually get these documents during the litigation, it can be much more costly and time consuming to do so.  If you gather them ahead of time, it may save you significantly on your fees.  Moreover, when your attorney is properly armed with the necessary information, it increases the chances that the case may be able to be settled sooner rather than later.

Documentary evidence is not the only type of evidence you can gather.  If there are children involved, you should immediately begin keeping a parenting journal.  Keep photographs, education records of children, and information on each person’s medical history (including the children).

TAKE CARE OF YOURSELF

The five stages of grief are a real thing.  You will be going through them at a different rate than your spouse and your children.  Going through a divorce has been equated to the stress of close loved one dying or losing a job.  The grief and stress of the process requires you to pay special attention to your own mental health and wellbeing.  Further, your children may need assistance dealing with issues of the divorce.  Your attorney should be able to make a referral for you to a qualified mental health professional.

You also need to be aware of your physical safety and that of your children.  Kentucky has in place statutes specifically providing for the protection of victims of domestic violence.  Most counties have a twenty-four hour protocol in place so that you can seek that protection at any hour of day or night.

While it is nothing anyone enjoys thinking about, with a little planning you can get a new start without starting over.

Photo courtesy of babi krishna

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

What Can I Take When I Leave the Marital Home?

What Can I Take When I Leave the Marital Home?

A point of concern when someone is preparing for a divorce is “What can I take with me?”  Although there is no requirement in Kentucky that divorcing spouses actually set up separate residences, it is usually better in terms of reducing the stress if the parties do not continue to live together.  Once the decision to leave has been made, it can be confusing about what you can and cannot take with you.

Generally, there is no dispute that when a person moves out, he/she can take their personal items, clothes, toiletries, small items of personal property with negligible value, etc.  This is also the case for your non-marital property that you owned prior to the marriage or, perhaps, inherited from someone or received as a gift.
There tends to be more dispute over bigger ticket items such as furniture, electronics, artwork, expensive jewelry, etc.  Usually there are fewer of these larger ticket items so there is more contention over who should receive them.  (“I want the big screen TV!” “No, I want it!”)  What happens then?
First and foremost, you need to consider whether the court has entered a status quo order or other restriction on removing property from the home.  Consult with your attorney, but normally even if a status quo order has been entered, it will not prohibit either party from removing property from the marital residence.  Nevertheless, depending on the facts and circumstances of your case, something more specific may have been ordered.  Regardless, even if you are not prohibited from taking the property from the residence, a status quo order would prohibit you from selling, damaging or concealing the property.  It is absolutely vital that you avoid violating the court’s order.  If you do violate it, you could be held in contempt and subject to fines, attorney fees and possibly even time in jail.
With that being said assuming there is no order prohibiting you from removing property, you can remove pretty much anything you can get through the door that is either yours or is marital property.  Keep in mind that if it is marital property, whatever you remove will come off of your share of the marital estate so it is important that you keep detailed records of everything that you remove.  However, it is much easier to hold onto a piece of property throughout litigation than it is to force the other party to turn it over.  As always be sure to consult with your attorney before you make any decisions.
Photo courtesy of Atomic Taco
How to Change Your Name After a Divorce in Kentucky?

How to Change Your Name After a Divorce in Kentucky?

A divorce is usually one of the most difficult events in a person’s life.  Keeping a married name after a divorce is often a painful reminder of the experience.  For this reason, many women choose to return to their maiden (or just a previous) name after a divorce is over.  (Side note, I have yet to see a judge order that a wife must return to a maiden name at the request of a husband.)

By far the easiest way to change your name is to do it within the divorce case itself.  Kentucky statute provides that “[u]pon request by a wife whose marriage is dissolved or declared invalid, the court may, and if there are no children of the parties shall, order her maiden name or a former name restored.”  Using this option, the name change is included in the final divorce decree and requires much less work.

The other option is to file a separate action in district court for a name change.  Any person at least eighteen (18) years of age may have his or her name changed by the district court of the county in which he or she resides.  In many counties, the district judge does not require a court appearance and will simply grant the request as a matter of course.  The form to use to change your name can be found here.

Once you have received your divorce decree or district court order changing your name, the work is not yet done.  Next, you will need to take your order or decree to the social security office to have your file with the United States government changed.  You will also need to have a new drivers license issued which will require a trip to the district court clerk’s office.  You may also need to contact your bank, credit card companies, and any other office or institution that has records under your married name.  This process may take some time, but it is worth it to save yourself a lot of headaches down the road.

Photo courtesy of Alan O’Rourke

I Want To Get Divorced But I Cannot Locate My Spouse!

I Want To Get Divorced But I Cannot Locate My Spouse!

Surprisingly, this situation comes up with some frequency.  A couple separates, they lose contact, and never actually get divorced.  Sometimes it is a cost issue.  Occasionally, one spouse supposedly is “taking care” of getting the divorce and now cannot be located.  The other spouse then finds out years later that he or she is not actually divorced (usually when a creditor comes calling).  Normally, you need to know where the other spouse is located in order to serve that person and proceed with the case.  When you do not know where the other spouse is living, you can still use constructive service.

Constructive service can be effected by requesting the circuit clerk appoint a warning order attorney.  To request a warning order attorney, you (or your attorney) must file an affidavit stating the last known address of the other party or stating that the other party’s address is unknown.  The circuit clerk will then appoint a licensed, practicing attorney as a warning order attorney.  The warning order attorney is required to make diligent efforts to locate the other party and inform him/her of the pending divorce action.  The warning order attorney is required to report his efforts to the court within fifty (50) days of the appointment.  Once the warning order attorney report is filed with the court, you can proceed to seek a decree of dissolution of marriage.

Although the court can dissolve the marriage using a warning order attorney, the court cannot rule on every issue.  Generally, the court cannot rule on child custody issues, maintenance, or certain other financial matters unless the respondent actually comes forward to answer the divorce action.  Nevertheless, the parties can be returned to the status of single persons, which may be all that you need.

Photo courtesy of Nicolas Raymond

Should I Get a Legal Separation Instead of a Divorce?

Should I Get a Legal Separation Instead of a Divorce?

Earlier we talked about the term “separated” as it is used in the context of divorce.  This should not be confused with securing a decree of legal separation which is an entirely different animal.

In a legal separation, the parties essentially go through all of the same steps as they do when securing a divorce.  They enter an agreement or the court will grant a decree setting out each party’s rights with respect to the children.  The marital property is divided in just proportions or by agreement.  The debts incurred during the marriage are assigned to each party.  The non-marital property is restored to its rightful owner.  There may even be a maintenance award.  The difference in a legal separation is that the court does not take that final step of actually dissolving the marriage.  Therefore, even though everything is divided and the parties may even be sharing custody of the children, they are still legally married and unable to remarry someone else.

There are a few reasons why a legal separation may actually be a favorable choice for some people.  One of the chief reasons is for religious reasons.  Perhaps one or both parties’ religion or denomination discourages or even prohibits divorce, but the parties can no longer remain living together.  I have seen this type of scenario where a wife is a devout believer, but, unfortunately, she is married to an abusive husband with whom it is no longer safer to remain.  A legal separation allowed her to remove herself from the situation without violating her deeply held convictions.

Another situation may be for purely pecuniary reasons.  Sometimes it simply makes good financial sense to get a legal separation instead of a divorce.  One situation in particular where this happens is when one spouse relies on the other for health insurance through the other spouse’s employer.  The cost of similar insurance for the non-employee spouse may be cost prohibitive after a divorce.  The parties can opt for a legal separation and the non-employee spouse should be able to remain on the employer’s health insurance plan.  This may mean there should be some money paid back to the employee spouse if he has some out-of-pocket for the expense or it could be treated in lieu of other maintenance obligations.  I once used this tactic to good effect where the wife was diagnosed with lupus and on several expensive medications.  She was within three years of qualifying for Medicare and we used a legal separation to keep her insured until she could qualify.

Once a decree of legal separation has been entered, it can still be converted to a decree of dissolution of marriage.  After one year (or more) from the date of the decree of legal separation, either party can file a motion with the court asking that the decree be converted to a decree of dissolution of marriage.  Once one party asks to convert the decree to one of dissolution, if it has been a year or more, the court is required to grant the request.

Photo courtesy of Daniel Lobo

Can I Change the Locks on the House?

Can I Change the Locks on the House?

One question that comes up all the time, especially at the beginning of a divorce case, is “Can I change the locks on my house during the divorce.”  The short answer is yes, but please do not stop reading yet.  As with anything else in a divorce, the answer is actually more complicated than a simple yes or no.

In Kentucky, when the parties are married, unless and until the court says otherwise, they each have equal access and rights to marital property regardless of whether it is titled in the name of the husband, the wife or jointly.  In other words, until a ruling from the court, either party has just as much right to the house as the other.

This means that either spouse has the right to change the locks.  Likewise, either spouse has the right to force his/her way into the house and that should not be arrested for breaking into his/her own home.  (Keep in mind that if the house is damaged during the break-in, the party who did so may be required to pay to repair the damage or otherwise be penalized in the final property division.)  As a practical matter, changing the locks on the residence is a fairly hostile action.  It could escalate an already volatile situation and increase tension between the parties.  Increased tension and hostility usually results in more litigation and more attorney fees.

Normally, one of the first motions that is filed in a divorce case is a motion for temporary relief which usually includes a request for exclusive use and possession of the former marital residence.  Once the court has awarded temporary, exclusive use and possession to one party, the other party may not come into the home without the express permission of the party to whom it was awarded or an order of the court.  At that point, it is not only reasonable to change the locks, you are probably stupid if you do not change them.  If the other spouse enters the home uninvited at that point, he/she could be subject to contempt sanctions or possibly even criminal charges.

In addition to changing the locks on the house, do not forget the other points of access.  Security system codes need to be changed and garage door openers need to be secured or the codes changed.  If you have a security company monitoring your home, you may need to provide them with a copy of the temporary order so they know your estranged spouse is not to be on the premises.

As with anything else in a divorce case, before you act, consult with your divorce and custody attorney before taking any steps that may escalate an already tense situation.

Photo courtesy of Matthias Ripp

How Do I Enforce My Visitation With the Children?

How Do I Enforce My Visitation With the Children?

Often when divorced parents fight about time spent with the children, it is not really time spent with the children that they are fighting about.  Instead, it is usually one (or sometimes both) of the parents using the children to get back at the other parent.  This often leads to the primary residential parent refusing to let the other parent visit with the children according to the schedule ordered by the court.  If you find yourself in that situation, what should you do?

When your ex is denying you visitation, before you hire a lawyer, write to your ex.  This can be by email, text message, or certified mail, but write to him/her in some manner in which you can show that the message got to him/her.  In that message, remind them about the visitation schedule.  Then describe the ways in which the other parent’s behavior is inconsistent with that schedule.  Keep your description limited to what you can observe and refrain from petty name calling, disparaging remarks, or what you believe the motivations for these behaviors.  In your message set out the specific time and place where you will be to visit with the children on the next scheduled visit in accordance with the court order.

Be at the appointed place and time.  If, after twenty minutes or so, the ex does not show, do not get mad or make a scene.  If the meeting place is at a business you might purchase something of nominal value and save the receipt or even bring a witness; something to prove you were there and on time.  Then write the ex a second message.  Again, just like before, confine your comments to behaviors you can observe and do not go into the ex’s possible motivations.  If the ex does not show at the second appointed time and place, then it is time to contact a lawyer.

The lawyer can file a motion for rule to show cause.  This is a motion that is filed when you believe the other party is violating the court’s order.  You are asking the court to order the other person to appear before the court and explain (or “show cause”) why he/she should not be held in contempt of court.  Sanctions from the court for contempt could be anything from a slap on the wrist, to fines, an award of attorney fees, and even jail time.  However, this is a court proceeding and the truth is whatever can be proven in court.  If you follow these steps you will have your proof and show the judge the truth.

Photo courtesy of potential past

Should I Move Out of The House or Will It Hurt My Case?

Should I Move Out of The House or Will It Hurt My Case?

You have decided it is over, maybe papers have been filed, all you want to do is be away from the other person.  But should you move out of the house?  I am asked that question with some regularity. Many people are scared that they might be accused of abandonment, but with the advent of Kentucky’s no-fault divorce system, that is no longer a concern.  Nevertheless, it does not necessarily mean that you should immediately move out.

The first question is whether you will be asking the court to designate you as the primary residential parent for your children.  If so, you will want to stay with the children and maintain as much stability for them as possible.  Therefore, remaining in the home would be best.
If you believe that ultimately, you will want to keep the residence, it is usually a good idea for you to remain in the home.  Oftentimes, once one party moves out he/she establishes another residence, it is very easy for a court to see that the living situation is working and award the house to the party still residing in the house.  That is not to say it happens every time, but it often comes into the court’s decision making process.
If you have decided to leave, you need to think about the process rationally.  Leaving is going to most likely increase your emotional and financial stress.  Whether it is to escape domestic violence or you have simply decided that leaving is the best thing for you and your family, you need to approach this situation with a great deal of planning.  You will never have a better opportunity to prepare for your divorce case than when you are in the home.  Consider the following points:
  1. Figure out the finances.  If you are leaving you need to assess both parties’ incomes (or lack thereof), document that income, and work out a budget.  The last thing you need to do is stretch yourself too thin by renting a place you can barely afford and then get hit with a child support obligation.
  2. Prepare for co-parenting.  Help the children cope with mommy or daddy moving out.  Kentucky now requires some form of co-parenting class in divorces involving children.
  3. Itemize the property and debt.  You will never have a better opportunity to catalog the property that may be in dispute than when you are in the home.  Do it before you leave.  This includes the residence itself, intangible assets (financial records, stocks, bonds, etc.), business interests, and physical assets such as furniture, artwork, vehicles, etc.
  4. Marshal your resources.  Make sure you have access to as much money as possible.  Divorces are expensive and so it setting up your new place.  Talk with family and friends about helping you with loans/gifts.  Access bank accounts and credit accounts.  You may consider selling some items, but discuss this with your attorney first.
  5. Do not think that just because you have moved out that you can behave in any manner you like.  You need to assume you are being watched or that your actions will get back to your spouse.  It is best not to date or do anything that might make you look bad in court.  Talk with your attorney about possible dos and don’ts.

Moving out of the marital residence is an important decision that should not be taken lightly or without preparation.  Make sure you understand all of the relevant issues before you make a move.  Above all preparation is key.  Do not do anything without discussing it with your divorce lawyer.

Photo courtesy of Meathead Movers