Tag: ex husband

New Published Case on Relocation and Primary Residential Parent Designation

New Published Case on Relocation and Primary Residential Parent Designation

The Kentucky Court of Appeals published a new case dealing with a decision to modify a couple’s timesharing schedule to designate the father as the primary residential parent instead of letting the children relocate from Kentucky to Mississippi with the mother.

Based on the record before the Court of Appeals the parties had a very contentious and litigious relationship since at least 2002 involving domestic violence allegations and dependency, neglect and abuse cases.  The court had previously granted the mother permission to relocate to Mississippi in 2009, but the mother later returned to Kentucky before filing a notice of intent to relocate in 2013 with the Jefferson Family Court.   The father then filed a motion to modify the visitation schedule to allow the children to reside with him most of the time and sought to prohibit the mother from relocating the children.

The Court in this case again reiterated the difference between a motion to modify custody and a motion to modify timesharing.  Specifically, the Court pointed out that the a change in primary residential parent is a request to change the timesharing not a modification of custody.  This is an important point because to modify custody, the pleading that is filed must be accompanied by appropriate supporting affidavits in order for the trial court to even have jurisdiction to hear the issue.  That is not the case in a motion to modify the primary residential parent where the parties share joint legal custody.

The Court of Appeals reviewed the facts of the record and it appeared that, while the mother seemed to remain locked in her ways of animosity toward the father and his relationship with the children, the father had submitted to anger management and other therapy to improve his skills as a parent.  Additionally, the Court seemed disturbed that the mother seemed unable to see how her actions affected her children.  This is an excellent example of how being petty and litigious can often blow up in one’s face.  Normally, you are much better off if you can present yourself to the court as the calm, stable parent who is willing to foster a relationship between the children and the other parent.  Ultimately, the Court of Appeals found that the the trial court did not abuse its discretion by refusing to allow the children to relocate with the mother.

Photo courtesy of Brian Turner

What Do I Do When My Child Does Not Want to Visit the Other Parent?

What Do I Do When My Child Does Not Want to Visit the Other Parent?

Whether it is entered by the court or agreed upon by the parties, chances are there will be a visitation or timesharing schedule established as part of your child custody case.  This schedule sets out specific times when the child is to be with each parent.  This schedule is part of the divorce decree or child custody order and is enforceable by the court.

If you are the primary residential parent, it is incumbent upon you to encourage the child to go to these visits.  “Encourage” might be too light of a wording, because the court expects you to make the child go.  If you do not, it is not the child who gets punished.  Instead, the other parent can file a motion for contempt; sometimes called a motion for rule to show cause.  We have previously discussed these motions in terms of when one parent refuses to pay child support or bills as ordered in a divorce.  It works much the same way in the realm of child visitation.  One party files a motion with an accompanying affidavit alleging that the other parent is refusing to obey the child visitation order.  If the court determines that is true, the parent disobeying the order can be sanctioned from a “slap on the wrist” and a stern lecture from the judge all the way up to six months in jail.

If you are the primary residential parent and you have a valid concern that the child is seriously endangered by the visitation such as evidence of abuse (and I mean solid evidence not just a suspicion), you can refuse the visitation.  However, you cannot simply take a unilateral action.  You will still need to file a motion to terminate the visitation with the court.  The court will conduct a hearing and if the court does not believe there was a good faith basis to deny the visitation, you could still be held in contempt and/or the other parent will most likely be allowed to make up any time that was missed.  “Crying wolf” and alleging abuse where there is none may also form the foundation for a motion to modify the timesharing and asking the court to designate the other parent as the primary residential parent.

Things get tougher when the child gets older and becomes a teenager.  When the teenager decides she no longer wants to visit and has a life of her own it can make it difficult for the non-residential parent to maintain that relationship.  It still remains the obligation of the primary residential parent to push the child to attend the visitation.  Some judges are more lenient than others, but many judges are loathe to allow a child to begin to decide whether the court’s orders will be followed.  In situations where the residential parent cannot get the child to cooperate, the parent may be left with no choice but to file an action against the child as an out of control teen (also known as a status offender) and ask the court for assistance.  Many parents hesitate to do this for fear of creating a record for the child or even giving the other parent ammunition to take them back to court.

Another point to be aware of is the fact that visitation and child support are two totally separate issues.  If the other parent stops paying child support, that does not give you the right to stop visitations and vice versa.  Courts do not appreciate these sort of “self-help” remedies.

Photo courtesy of DeptfordJon

You Can Annul a Divorce in Kentucky

You Can Annul a Divorce in Kentucky

You have been divorced.  You went through the arduous process.  Perhaps, you and your now ex-spouse even duked it out in court.  You reached a settlement agreement or the judge made rulings on child custody and dividing your property and debts.  Now tempers have cooled.  You are talking civilly to one another, maybe even went on a date.  Cupid’s arrows are flying.  You have decided to get back together.  It’s as easy as simply getting remarried right?  Not necessarily.

First of all consider the fact that by some statistics, the rate of divorce in second marriages is in the neighborhood of sixty percent.  Allegorically speaking from practicing family law for years, I can say that the rate of divorce for second marriages to the same person tends to be even higher.  However, hope springs eternal.  Nevertheless, remarriage may not be the best option.

A little used provision of Kentucky law actually allows a couple who wish to get back together to annul their divorce.  This action actually voids the divorce decree and any separation agreement.  The effect is that the divorce decree or separation agreement has no legal effect as though it never happened.  That means that anything that was marital property before the divorce is once again marital property.  It may also be used to prevent a lapse in coverage of health insurance since most employer plans will automatically drop a former spouse.  If the divorce is annulled, the insurer should recover the spouse and, arguably, cover the period of any lapse assuming premiums were appropriately paid for family plan coverage.

If you choose not to annul the divorce, get remarried and then realize that you just cannot make the marriage work for a second time it could have a major effect on your second divorce.  The property that was divided in the first divorce remains each party’s separate non-marital property.  Remember non-marital property includes property owned prior to the marriage, even a second marriage to the same person.  This may or may not simplify the second divorce, but it usually comes as a surprise to at least one of the parties who assumed everything went back to being marital property by virtue of the marriage ceremony.

These are not easy issues to handle.  When Cupid’s arrows start flying, you might be wise to get out of the way.

Photo courtesy of Hans Splinter

I’ve Been Divorced Before But My Ex Has Hired Counsel. I Can Still Go It Alone Right?

I’ve Been Divorced Before But My Ex Has Hired Counsel. I Can Still Go It Alone Right?

If you went through a contested divorce years ago, you probably learned a lot about the divorce laws that were in effect at that time.  Be very cautious about proceeding without legal representation.  As I have said before, you can amputate your own limb but it usually works about better if you have a surgeon do it.  You should also be careful that you are not thinking too much with your heart and not enough with your head.

One thing to keep in mind is that every divorce is different.  This marriage may be very different from your previous marriage.  The finances may be more complicated, it could be a longer-term marriage, or there might be children involved.  Additionally, if you had assets when you came into this marriage (e.g. from the previous divorce), you will surely want to make sure that they are protected during this divorce.  Even your age and health condition may affect the outcome of your divorce and are issues that a skilled family law attorney can discuss with you.

Another point to consider, is that, as I acknowledged, you may have learned a lot about the laws in effect at the time of your last divorce.  The problem is that laws change all the time.  That is especially true in the are of family law.  Every year there may be new statutes passed by the legislature, or new rules of procedure or even new decisions by the appellate courts.  All of these things can directly affect your case.  You may also be appearing before a different judge than in your last case.  One with much, much different attitudes about your particular factual situation.  A trained lawyer should be able to discuss all of these issues with you and explain how your particular situation fits in the current status of the law.

In some cases, you may be able to keep the involvement of an attorney to a minimum.  It may be limited to simply reviewing a proposed agreement and advising you about its ramifications.  On the other hand, the lawyer may realize that you are being taken advantage of and potentially signing away thousands of dollars or other rights that you did not even know you had.  It is up to you whether you will choose to be penny wise and pound foolish.  As a final point, I will remind you, do not ever operate under the delusion that you and your spouse can “share” an attorney.

Photo courtesy of Rob Walker

What Can I Expect at an Initial Consultation With an Attorney?

What Can I Expect at an Initial Consultation With an Attorney?

A lawyer’s time is his stock in trade. ~Abraham Lincoln

Not all initial consultations are created equal.  Many attorneys, especially in the area of divorce and family law, charge an initial consultation fee.  There are several attorneys who offer free consultations, but the advice you get, if any, may be worth exactly what you pay for it.

The nature of the advice you get in an initial consultation will vary greatly depending on the nature of the case about which you are consulting with the attorney.  If you are just beginning a divorce case, you will get much different information than if you are in the middle of a contested case.  It will also depend on if you are merely on an information gathering visit or ready to file something immediately.

During your first meeting with an attorney in addition to the other information you should bring, which we discussed here, you should be prepared to provide the following information to your attorney:

  • A brief history of the marriage
  • Background information on you, your spouse, your children and other pertinent members of your family
  • Information about your immediate situation and/or needs
  • Your goals regarding your post-divorce future and, more specifically, your relationship with your soon-to-be ex-spouse
  • The information you need from the attorney, i.e. come prepared to ask questions

The attorney you meet with should be able to provide you with the following:

  • A summary of how divorce works in Kentucky and a rough outline of how the case will progress
  • A discussion of the issues that are relevant to your case and how he/she might approach each issue
  • A preliminary assessment of your rights, obligations and responsibilities under the law
  • Background on the attorney, the firm, and their experience in family law matters
  • Information about fees, court costs and other expected litigation expenses.

The initial consultation is an opportunity for you to develop a rapport with the prospective attorney.  You will be putting the immediate (and possibly long-term) future of you, your children and other members of your family into this person’s hands.  It is imperative that you trust this person and are satisfied with the advice they give you and that they have the ability to handle your case.  You should expect them to not only answer your questions, but ask you questions that show he/she understands your situation.  While it is impossible for an attorney to answer every single question at an initial consultation, you should be able to develop some sense of comfort with the person.  If not, you need to keep on searching.

Photo courtesy of Solo, with others

Can Facebook and Other Social Media Be Used Against Me in My Divorce/Custody Case?

Can Facebook and Other Social Media Be Used Against Me in My Divorce/Custody Case?

The short answer is YES!  I love using social media.  I have links to all of my profiles listed on my business cards and I often check Facebook or Twitter before I even roll out of bed.  I enjoy posting snarky and smart alec comments or jokes and embarrassing pictures of me and my family.  It’s fun.  However, during a divorce or child custody case, it is probably a good idea for you to back off of social media for a number of reasons.

The first is that it is probably not going to do anything to encourage settlement of your case.  In fact, it will probably just add fuel to your ex’s anger.  Whether it is veiled statements you are making about him/her, bragging about how much better your life is without the ex, or even posts that you feel may otherwise be harmless; you never know how someone else is going to take something you have posted.

The judge will see your posts.  I do not care what kind of Fort Knox level privacy settings you engaged on your favorite social media site.  It will be seen by your ex or a friend of a friend of the ex and it will get out.  It will then be seen by the judge and it will be considered as part of your case.  I once had a case where I represented a mom and I advised her to back off of her Facebook usage for the duration of the case.  She was resistant because she had all of the privacy settings engaged and besides she “only uses it to share pictures of her kids with her sister in California.”  We get to court and apparently one of those pictures she liked to share with her sister was of her dancing on a pool table while holding a fifth of vodka in her hand while dancing with another woman who appeared to be slapping her on the rear.  At least, that was the picture that was presented by her ex in court.

Do not delete your posts if you already have an account.  If you do, you could be accused of destruction of evidence.  This can have a number of ramifications including that the court will assume there is something in the files you deleted that was detrimental to your case and will, therefore, make a negative inference that you are hiding something.  This is totally legal under the rules of evidence and very bad for your case.  If your attorney ever advises you to delete your posts, that attorney is violating state ethics rules and probably the law as well.  In recent years, I have heard horror stories of attorneys being sanctioned thousands of dollars and even being suspended from practice for advising clients to delete posts from social media.  Do not do it.

Social media is a lot of fun and a great way to share information with your friends and family.  Unfortunately, during litigation it becomes a gold mine of information and evidence for family law attorneys.  While your case is pending, just back away from it and stay offline for a while.  No one is that interested in what you had for lunch anyway.

Photo courtesy of Jason Howie

I Am So Angry With My Spouse!! How Can I Be Expected to Sit in the Same Room at a Settlement Conference?!?

I Am So Angry With My Spouse!! How Can I Be Expected to Sit in the Same Room at a Settlement Conference?!?

Unless there is domestic violence present in the relationship, most courts at some point will require you to participate in either mediation or a settlement conference.  A settlement conference usually consists of you, your attorney and your spouse and his/her attorney sitting down at a table and trying to settle as many issues as possible by agreement rather than submitting them to a judge.  Obviously, the more you can settle at an informal meeting such as this, the less you will have to pay in attorney fees and other litigation expenses.

If you are still so angry with your spouse that you cannot have a rational conversation with him/her, it might be beneficial to postpone the settlement conference until you can meaningfully participate.  In the interim, you might seek counseling to deal with your feelings and emotions.  You will not be able to rationally assist your attorney in resolving your case if all you are out for is your pound of flesh.

If after a certain amount of time and/or counseling, you still cannot rationally deal with your spouse, you may want to consider shuttle negotiations.  This is similar to shuttle mediation, you simply cut the mediator out of the picture.  I have used this technique effectively in some cases.  Basically, the parties remain in separate rooms and one or both attorneys shuttle back and forth exchanging offers and trying to reach a settlement.  By removing the focus of a party’s anger (i.e. the other party) it often helps get the person focused on actually settling the case and makes it easier to move forward.  If you have more questions on dealing with your spouse during settlement conferences, please contact the Alford Law Office.

Photo courtesy of Matt E

I’ve Been Told Not to Speak Ill of My Spouse to the Children, But I Know They Are Bad-Mouthing Me!

I’ve Been Told Not to Speak Ill of My Spouse to the Children, But I Know They Are Bad-Mouthing Me!

I always encourage clients to “take the high road” and refrain from making derogatory remarks about the other parent.  Part of it is strategic because if a party winds up looking like a jerk in court, the judge will usually make sure that things do not go well for that person.  More importantly, however, is avoiding the damage this sort of behavior can cause your children.  It can be devastating for your child to hear you running down the other parent.

Think about this from your child’s perspective and remember your own childhood.  There is a reason that there are cliches in movies and entertainment about not talking about another kid’s mom or that “my dad can beat up your dad.”  Your child needs permission to love each of you regardless of any bad behavior by the other parent.  Children strongly identify with their parents and rightly so.  Remember, it took both of you to make the child and half of them came from each parent.  Negative comments about one parent can reflect back on the child.

Although some level of disagreement is normal in this situation, finding a balance or a way to keep it from the child as much as possible is essential.  Your children will take their cues from you on proper behavior.  If you are talking behind the other parent’s back, your child will think that it is appropriate to talk behind people’s backs.  If every conversation you have with your spouse devolves into shouting and cursing, that is how you are teaching your child to communicate.  Keep in mind your child’s feelings and the stress they are experiencing and do everything you can to reduce their stress.  The best way to support youencourage a strong relationship with the other parent.  It is important to work to create a comforting and caring environment to help ease this major life adjustment, refraining from involving your child in your frustrations with his other parent. If his other parent talks badly about you, let him know that sometimes grown-ups act out when they feel frustrated and suggest he ask his other parent to stop, if it is bothering him.  Explain to your child that he does not have to choose sides.
r child during this time is to

At this point, you are probably thinking “This is all well and good, but my ex really knows how to push my buttons!”  I will leave you with the wise words of Mark Twain, “Never argue with stupid people, they will drag you down to their level and then beat you with experience.”  If you have more questions, contact the Alford Law Office.

My Ex Refuses to Help Pay for Our Child’s Braces!

My Ex Refuses to Help Pay for Our Child’s Braces!

I don’t know what it is about getting divorced or finding oneself in a co-parenting relationship that suddenly grants some people the right to practice orthodontia.  It seems as though they believe that the order for child support doubles as a medical degree of some sort.  You can replace the word “braces” in the title to this post with “surgery,” “glasses/contacts,” “counseling,” “medication,” “therapy,” or pretty much any other word that relates to some form of medical care/treatment provided by someone who by all rights can wear a long white lab coat.  Child support obligors often just do not want to pay their share of these expenses.

We previously discussed what to do if your ex refuses to pay child support and we also briefly touched on what child support would cover.  To expand on that a little, Kentucky Statute makes it clear that in addition to the regular child support, the person paying child support is also responsible for a proportionate share of “extraordinary medical expenses.”  Extraordinary medical expenses is defined as uninsured expenses in excess of one hundred dollars ($100) per child per calendar year.  Extraordinary medical expenses includes but is not limited to the costs that are reasonably necessary for the following services:

  • medical, 
  • surgical, 
  • dental, 
  • orthodontic, 
  • optometric, 
  • nursing, 
  • hospital services,
  • for professional counseling,
  • psychiatric therapy for diagnosed medical disorders, and 
  • drugs and medical supplies, appliances, laboratory, diagnostic, and therapeutic services

Child support obligors have used a number of excuses for refusing to pay these expenses such as claims that braces are cosmetic or that he does not really believe the child has a condition and demands a second opinion.  I cannot say that courts have universally rejected such arguments, but I can say that when there is a medical professional prescribing a certain treatment for a child, the courts I practice in front of come down on the side of following the doctor’s orders.  If, however, the child support obligor goes the extra step of securing a second opinion that contradicts the first medical provider, the court is left to decide based on the court’s determination of who is the more credible medical provider.

If your child is need of medical care, do not feel that you have to carry that entire burden yourself.  Stand up for your rights and those of your child and demand the other parent pays his/her share.  If you have more questions, please contact the Alford Law Office.
Photo courtesy of Monica Y. Garza
I Can’t Possibly Gather All of This Information for the Divorce Lawyers and the Court!

I Can’t Possibly Gather All of This Information for the Divorce Lawyers and the Court!

There are many demands for litigants to gather information for their divorce.  The discovery process is difficult.  From tax returns, deeds, bank records, pay subs, photos, credit card statements to medical records, authorizations, car titles, and contracts; it can be overwhelming.  I have clients routinely cringe at having to wade through all of it.  Don’t panic.

I am reminded of the old joke, “How do you eat an elephant?”  The answer, “One bite at a time.”  The idea is that even large tasks can be broken down into smaller tasks.  The smaller tasks add up and, before you know it, you have completed the large task.  In most cases, you have some time to get everything together.  Perhaps, you could set aside one afternoon to collect your tax returns or meet with your accountant to get copies.  The next weekend, you could sit down with your monthly bills and estimate your monthly expenses.  In this way, you can break the demands down into more manageable tasks.
You also should not feel like you have to do everything on your own.  Let other people help you.  Ask a friend who fancies herself as an organizational diva to bring her file folders over and help you get organized.  The more organized you can get your information before you turn it over to your attorney, the less time your attorney has to spend organizing it and the less you legal fees will be.  I cannot tell you how much I cringe when people show up with garbage bags and shoe boxes full of documents that we have to whip into shape.
Finally, do not forget that your lawyer and paralegals are there to help you.  A skilled family law attorney and staff can offer many helpful suggestions for completing necessary forms and getting organized.  At a minimum, they can help prioritize the information you will need to provide immediately and what can be provided later.  This can be a daunting and frustrating task.  If you have more questions, please contact the Alford Law Office.
Photo courtesy of Brian Snelson