Tag: family law

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

Who’s Your Daddy? Maybe Not Who You Think.

Who’s Your Daddy? Maybe Not Who You Think.

The answer to the question of who is a child’s father may not be as easy to answer as you think from a legal perspective.  (Is anything?)  The answer may be different depending on the situation.  For example, notorious breaker of the internet Kim Kardashian became pregnant with Kanye West’s baby while Kardashian was still married to Kris Humphries.  If this happened in Kentucky, Mr. Humphries would be the presumed father of the child because he and Kardashian were still married when the child was conceived.

Kentucky statute states:  A child born during lawful wedlock, or within ten (10) months thereafter, is presumed to be the child of the husband and wife. However, a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child.

The Kardashian/Humphries/West situation actually comes up with some frequency.  Many times a wife will have an affair and get pregnant by a man other than her husband.  Since the presumption is that the child is one of the marriage, it is incumbent upon the husband, especially in a divorce case, to make sure that the child is his.  If he fails to do that and the child forms a bond with the husband, a court may actually refuse to allow the man to disavow paternity of the child.  I have been involved with cases where the child ranged in ages from eight to fifteen where the court refused to allow a man who had always been a part of the child’s life as the child’s father to then abandon the child on the basis of no biological connection.  Nevertheless, if there is a suspicion that a child of a marriage may not be the husband’s that issue must be raised in the divorce in order for there to even be a hope of avoiding a finding of paternity.  If it is not raised during the initial divorce proceeding, it will most likely be waived absent discovery of new evidence that was not available during the divorce for some reason.

A putative father may initiate an action to establish paternity.  A putative father is a man who believes he may have impregnated a woman, regardless of whether the man is the woman’s husband.  If a putative father does not initiate an action to establish paternity, he has no legal rights to a child.  An action to establish paternity may also be initiated by the mother or even the Commonwealth of Kentucky through the division of child support.  Once paternity is established, he may be required to pay child support, other expenses, and be entitled to visitation with the child.

If you have more questions about paternity issues in the Commonwealth of Kentucky, seek advice of counsel as soon as possible.

Photo courtesy of Drew XXX

The Divorce is Over. Now What?

The Divorce is Over. Now What?

The divorce is over and the dust has settled.  The court has said that you are no longer husband and
wife.  Now what do you do?  The time has come to notify other necessary people that you are divorced and take steps to change your official records and important papers.  Below is a list of some of the issues you need to deal with and people you need to notify.

  • Your Employer:  Make sure your employment records reflect your new single status.  This will require you to change your wage deductions, beneficiaries and possibly other withholdings.
  • Retirement Benefits:  This may fall under contacting your employer, but if you received a share of your spouse’s retirement, make sure you also received a copy of the qualified domestic relations order and contact the plan administrator to make sure they have everything they need to get you the benefits you were awarded.
  • Banks & Investments:  Notify banks, investment clubs, credit unions, etc. of your new single status and make sure your spouse’s name is removed from any accounts you received.  Destroy all old checks from any joint accounts.
  • Insurance:  Again change your beneficiaries.  If you are no longer required to carry certain family members on your policy, contact your company and have them dropped.  If you were covered under your ex-spouse’s employer’s plan, contact the employer immediately about COBRA benefits if you have not made other arrangements for health insurance.
  • Taxes:  Contact your tax professional to discuss your new tax status and what you need to do to prepare for the next tax season.
  • Credit Cards:  Destroy all joint cards and close the accounts or have them transferred to your name alone (or your ex’s if he/she was ordered to pay the debt).  Verify your ending balances.
  • Important Documents:  Review all deeds, titles, and other documents of ownership to make sure property is placed in the name of the person who received it in the divorce.
  • Will/Estate plan:  Review your estate plan and modify your beneficiaries and testamentary gifts accordingly.
  • Power of Attorney:  If your ex spouse had power of attorney over you, revoke it and have a new one prepared.
  • Name Change:  If you changed your name as part of your divorce, you need to have it changed on your driver’s license, the Social Security Administration, and your financial institutions.
  • Social Security Benefits:  If you were married for ten (10) years or more, you have the right upon retirement to claim the higher of your benefits or your ex-spouse’s level of benefits.  Keep a copy of your marriage license and divorce decree to show the Social Security Administration when you qualify to file.
  • Child Support:  If you are receiving or paying child support contact your local child support office to make sure they have your contact information and a case open on you.  This will ensure that you receive proper credit if you are paying or provide a way to prove that you have not received support you are owed.  If there is a substantial change in your or your ex-spouse’s financial condition, you may be eligible for a child support modification at any time after the divorce.

Finally, always keep a copy of your divorce papers in a secure location that you can readily access.  While this list is not an exhaustive list of post-divorce action steps, it will cover most issues that will or could arise after your divorce.  For more detailed information, contact your family law professional.

Photo courtesy of CollegeDegrees360

Dealing With Divorce During the Holidays

Dealing With Divorce During the Holidays

We are going into the crazy-fun time of year known as “the holidays.” It is a time of gathering together with family and friends, feasting, going to parties, and having a good time.  Unfortunately, for those going through a divorce, and especially those trying to co-parent, the holidays can be a time of endless stress, arguments and calls to their attorney.  It can really make it difficult to get yourself into the festive, holiday spirit.  Hopefully, the following tips will be useful.

  1. Relax – This is supposed to be a joyous time.  Don’t spend it winding yourself up into knots.  Be patient with yourself, definitely with your children, and with the other members of your family.  You will probably find yourself grieving what you feel that you have lost and old wounds may try to reopen.  Try to focus on the positive aspects and true meaning of the holidays.
  2. Plan ahead – Plan to do something really fun for the holidays.  Put it on the calendar so that it is something to look forward to.  If you are unable to get together with family or friends, maybe plan a vacation getaway.
  3. Create new family traditions – A divorce may mean that you can no longer have certain family traditions.  Now is an excellent time to let go of the past and start new rituals and family traditions.  Maybe the ex got all of the Christmas decorations in the divorce.  This is your opportunity to take the kids to select new decorations.  Maybe you start taking them to buy or make a new ornament each year.
  4. Be flexible – What is more important, that you and your family are together or that you are together on one specific day?  Keep focused on what is important.  My family is made up of so many “blended families” that we gave up celebrating major holidays on the actual day years ago.  We now plan our celebrations on the Sunday preceding the holiday so as not to conflict with anyone else’s plans.  It as worked out great and we all get to spend time together.
  5. Remember the children – Reassure them that holiday celebrations will continue, but in a different way.  Take time to sit down and brainstorm with them about how they want to celebrate or new traditions they want to start.
  6. Keep the children’s best interest in mind – Decide ahead of time with your ex how you are dividing the holidays.  Try to be civil with one another.  Reassure the children that you will be fine and encourage them to have a good time at the other parent’s house.  Children often take their emotional cues from the parents.
  7. It’s not a competition – The Beatles had it right, you can’t buy love.  Do not try to compete with the other parent by buying/spending more on the children.  Make a budget and stick to it.  Chances are your finances are in a bit of a strain from the divorce anyway and now is not the time to max out your credit cards.
  8. Ask for help – Talk to your family, friends, counselors or other support system.  Remember you are not alone.
  9. Be realistic – Do not be seduced by the idea of a “Norman Rockwell” Christmas or other idealized family holiday.  People make themselves crazy trying to make everything perfect.  It is the whole premise for the classic “Christmas Vacation” movie.
  10. Take it easy, one day at a time – It will get easier.  It will hurt less.  Right now just focus on one thing at a time.

This is a time to be thankful for our blessings not to focus on what we do not have.  Rather than focus on the pain of divorce, concentrate on positive things.  Even small things, a great meal, a joke shared with family and friends, or just some quiet time away can create a better perspective and brighter holiday.

Photo courtesy of Louise Docker

Student Loans and Divorce

Student Loans and Divorce

It has been all over the news about the mountain of student loan debt taken out by college students to fund their education.  As college education costs continue to rise, students are taking out more and more loans.  Some believe that this is setting up a potential “student loan bubble” that could burst and wreak havoc on the economy in much the same way the housing bubble did a few years ago directly leading to the “great recession” of 2008.  With the fact that so many professionals have incurred student loan debt, it is inevitable that student loan debt is an issue that will have to be dealt with in many divorces.

Certainly if the loans were incurred prior to the marriage, the debt is non-marital.  Additionally, ss a general rule, Kentucky has held that student loans are non-marital debt even if taken
out during the marriage.  This goes hand in hand with Kentucky’s position that a non-student spouse does not have a marital interest in the educated spouse’s degree.  This was an argument that used to be made in cases involving doctors, lawyers, etc. whose spouse supported them through graduate school.

As with most things in divorce litigation, there are exceptions to most rules.  Many times, students who are married take out loans that are in excess of the amount needed to actually finance their education.  The excess funds are used to cover rent and other living expenses during the semester.  If the student spouse can establish that a portion of the debt was used for living expenses and did not all go directly to education, he/she may be successful at getting part of the debt declared marital and forcing the other spouse to share the burden.  This will require some planning and most likely researching costs of education at the time of the loan compared to the amounts borrowed and other possible documentation.  If this is an issue, it is imperative that you discuss it with your attorney as soon as possible to ensure that there is sufficient time to secure all of the necessary documents through the discovery process.

Although the general rule says that student loans will go to the spouse who incurred them, it may not be the situation in your case.

Photo courtesy of Simon Cunningham

What is the Difference Between Marital and Non-Marital Debt?

What is the Difference Between Marital and Non-Marital Debt?

We have previously discussed the difference between marital and non-marital property.  There is also a difference between marital and non-marital debt.  With property, the court will start off with a presumption that property acquired during the marriage is marital property.  That is not entirely true with debt.

The true inquiry that must be made is did the debt serve a marital purpose.  This is a fairly broad concept that looks to a number of factors:

  1. Did both spouses participate in incurring the debt?
  2. Did both spouses receive a benefit from the debt or whatever was purchased with the debt?
  3. Was the debt incurred to purchase marital assets?
  4. Was the debt necessary to support the family?
  5. Was the debt incurred for a non-marital purpose or one that did not benefit the entire family?
  6. The respective economic circumstances of each party to handle the indebtedness.

As a general rule, most debts incurred during the marriage will be marital debts.  This would include mortgage debts, car payments, etc.  However, many times a spouse will be in the midst of a divorce and through the discovery process  learn that there are credit card debts or other obligations of which he/she was not aware.  Then the inquiry must be made as to why this debt was incurred.  One example might be where a husband is shocked to learn that his wife has an electronics store credit card with a debt of two thousand dollars.  Nevertheless, he is well-aware of the fifty inch television sitting in his living room that appeared after one of the wife’s shopping excursions.  The family has benefited from the television and absent some other odd circumstance, that debt will be considered marital.

A converse example, would be a situation where the wife learns of a credit card her husband has.  This credit card is used by the husband primarily to pay for time at the local no-tell motel with his mistress.  Obviously, this debt did not benefit the family in any way, therefore, it would be a non-marital debt.

I routinely advise clients at the beginning of a divorce to get a copy of his/her credit report to determine if their name is listed on any debts of which they may not be aware.  Many are surprised by what they find.  Where there is concern about the debts owed by the parties, it becomes very important to secure information on why the various debts were incurred to make sure that you are not burdened with more than your share of the debt.

Photo courtesy of Chris Potter

Can Grandparents Get Visitation with Their Grandchildren?

Can Grandparents Get Visitation with Their Grandchildren?

The short answer is maybe.  Kentucky has a “grandparents visitation statute” as do most states.  At least most states did have grandparents visitation statutes prior to the 1999 term of the U.S. Supreme Court when the high court decided the case of Troxel v. Granville.

Kentucky’s version of a grandparent visitation statute is found at KRS 405.021.  That statute says that “[t]he Circuit Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so.”  However, the Troxel decision says that fit parents have a constitutionally protected right to raise their children in any manner they think is best.  The problem arises when the the parent(s) determine that the manner in which they want to raise their child does not include seeing grandma and grandpa.

In the wake of the Troxel decision states across the country began striking down their grandparent visitation statutes.  Kentucky never actually ruled that its grandparent visitation statute was unconstitutional, but it became nearly impossible to win grandparent visitation in the circuit or family courts.

Then in 2004, the Kentucky Court of Appeals decided the case of Vibbert v. Vibbert.  In the Vibbert case, the Court of Appeals established a “modified best interest” standard and said that, while the parents’ wishes must be presumed to be in the best interest of the child, the grandparent can overcome that presumption without the need to show that denying the visitation would cause harm to the child.  In doing so, the court of appeals set forth a number of factors to consider including, but not limited to:

  1. the nature and stability of the relationship between the child and the grandparent seeking visitation;
  2. the amount of time spent together;
  3. the potential detriments and benefits to the child from granting visitation;
  4. the effect granting visitation would have on the child’s relationship with the parents;
  5. the physical and emotional health of all the adults involved, parents and grandparents alike;
  6. the stability of the child’s living and schooling arrangements; and 
  7. the wishes and preferences of the child

With that in mind, the court of appeals overruled the trial court and remanded the Vibbert case for reconsideration of the grandfather’s request for visitation.  Keep in mind that in Vibbert, the grandfather actually had temporary custody of the children for a period of time as a result of dependency, neglect and abuse case.

With the decision in Vibbert, grandparent visitation in the Commonwealth went from impossible to get to just really difficult.  Then in 2012, the Kentucky Supreme Court weighed in on the grandparent visitation issue with its decision in Walker v. Blair.  In Walker the Commonwealth adopted a rule similar to the Troxel holding when it said a “court must presume that a fit parent is making decisions that are in the child’s best interest.”  Grandparents must establish by clear and convincing evidence (a fairly high standard to meet), that grandparent visitation is in the child’s best interests if mom or dad refuse to allow the grandparents to have contact.  The Kentucky Supreme Court approved of the court of appeals “modified best interest” standard from Vibbert, therefore, the presumption can be rebutted with proof of the factors set forth above.

A recent decision by the Kentucky Court of Appeals makes it clear that if a grandparent cannot meet his/her burden of rebutting the presumption that a fit parent is acting in the child’s best interest, the trial court must deny the grandparent’s motion.  If the parents are not together and share joint legal custody of the child, the trial court is likely to say that it is incumbent upon the parent in favor of the visitation to allow the grandparents to see the child during that parent’s time rather than adding the grandparents to the timesharing order.

It is clear that in Kentucky, although grandparents’ rights may be alive, they are not necessarily well.  If you are a grandparent seeking visitation with a grandchild, you will need to be prepared to prove that your relationship rises to a level greater than that of a “normal” grandparent and that you have historically played an active role in raising the child.

Photo courtesy of Jill M

A Great Lawyer Knows the Judge

A Great Lawyer Knows the Judge

No, I do not mean that a great lawyer is also the judge’s best friend.  Obviously, if a judge and lawyer who appears before him/her have a close relationship, it creates a conflict of interest that would prohibit the judge from hearing that lawyer’s cases.  The same would be true if there was a high level of personal animosity between the judge and a lawyer.  I recently heard the story of a lawyer who was divorcing his wife, who was a judge.  This lawyer was actually bombarded with calls offering to pay him for the privilege of representing him in the divorce so that his future-ex-wife-the judge would have to recuse herself from all of their cases as well.

In a family law case, it is often vitally important that the attorney you choose is able to accurately predict how the judge assigned to your specific case may rule based on the facts of your case.  I routinely practice in front of approximately nineteen different judges across numerous counties in two states.  Each of those judges have different viewpoints, attitudes, and ideas about what is equitable or in the best interests of children.  There are some judges that regularly award equal timesharing while other judges are opposed to it and would never award it absent an agreement of the parties.  One judge is very generous in awarding maintenance while the judge in an adjacent county almost never awards maintenance.

Having an attorney who can anticipate how a judge may rule in your case can shape not only how your case is prepared for trial, but also possible settlement.  If the opposing party is making demands at a settlement conference that your attorney knows the judge is likely never to award at trial regardless of the evidence, it will inform your negotiation strategy.  Conversely, if your attorney is unable to predict the judge’s actions, you may wind up giving up more than necessary which could negatively affect your financial future.

During your initial consultation your attorney should be able to give you an idea of what you can expect from the judge who may be assigned to your case.  Keep in mind, some judges are easier to predict than others, but the attorney can discuss that issue as well.  If the attorney with whom you are meeting is unable or unwilling anticipate possible outcomes of your case based on different facts and variables, it might be a sign you need to hire a new lawyer.  Who you hire can make a difference.

Photo courtesy of Mike Licht

New Grandparent Visitation Case: Fit Parents’ Wishes Must be Given Deference

New Grandparent Visitation Case: Fit Parents’ Wishes Must be Given Deference

Last week the Kentucky Court of Appeals issued a flurry of reported cases.  Among them was a case that further clarified the manner in which grandparent visitation cases must be presented to the family court.  In Waddle v. Waddle the mother was granted sole custody of the parties’ minor son in part because the father was incarcerated.  The paternal grandparents filed both a separate action for grandparent visitation and also to intervene in the divorce.  Over the course of much legal wrangling, and over the strenuous objection of the mother, the grandparents were granted standard visitation (essentially alternating weekends) with the minor child.

The Court of Appeals reversed the trial court’s decision.  In its ruling, the court of appeals does a good job of summarizing the current state of the law in the Commonwealth on grandparent visitation.  First the court points out that Kentucky does have a statute recognizing grandparent visitation, but notes that the statute has been impacted by the constitutional determinations of the United States Supreme Court in Troxel v. Granville.  In Troxel, the U.S. Supreme Court said that fit parents have a constitutionally protected right to raise their children as they see fit.  This includes prohibiting the chid’s contact with certain people.  This case established that a fit parent acts in the best interests of the child.  In Walker v. Blair, the Commonwealth adopted a similar rule when it said a “court must presume that a fit parent is making decisions that are in the child’s best interest.”  In order for a grandparent to rebut this presumption, the grandparent must establish by clear and convincing evidence (a fairly high standard to meet), that grandparent visitation is in the child’s best interests.  This means that the grandparent must prove that the parent’s decision to deny visitation is clearly wrong and not in the child’s best interests.  If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation.

Ultimately, in Waddle the Court of Appeals determined that the trial court had failed to make sufficient findings of fact to show that the grandparents had carried their burden of rebutting the presumption that the mother was acting in the best interests of the child.  This decision illustrates that while grandparent rights are still alive in Kentucky, they are difficult to establish in a court of law.

Photo courtesy of Brian Turner

Does My Spouse Have a Right to My Medical Records?

Does My Spouse Have a Right to My Medical Records?

If you are involved in a custody case or possibly even a maintenance case, the answer is yes.  Although as a general rule medical records are private, once you put your health at issue, you have effectively waived that privacy right.  Your spouse’s attorney can then force you to produce them through the discovery process or subpoena them directly from your medical provider.  Under Kentucky’s Family Court Rules of Practice and Procedure you can be required to sign an authorization for the release of such information to the opposing attorney.

Your physical, mental and emotional health is always at issue anytime you ask the court to make a determination of child custody.  Moreover, if you are seeking maintenance and claiming that your health in some way inhibits your ability to work and earn a living, then you have made your physical health a factor for the court to consider and essentially given the other side the right to snoop through your medical history.

If this becomes an issue in your case, you should talk to your lawyer about your concerns.  This is not a time to be shy or to keep things from your attorney if there are potentially dangerous or embarrassing things in your medical history.  Your lawyer may be able to file a motion with the court to limit the information that the other side can get or to prevent it from coming in altogether if it is not actually relevant to a case.  If your lawyer knows all of the facts of the situation he can better advise you on how to proceed and protect your interests in court.

Photo courtesy of Seattle Municipal Archives