Category: divorce decree

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

Can A Maintenance Award Ever Be Modified?

Can A Maintenance Award Ever Be Modified?

Yes.  However, this was not always the case in Kentucky.  We have previously discussed the issue of maintenance and how it might be established.  But once it is established, what happens if the payor has a sudden downturn in his finances?

Kentucky courts, if they award maintenance at all, will award either permanent maintenance (i.e. until death or the recipient remarries/cohabits with someone) or “lump sum” maintenance.  Lump sum maintenance is a bit of a misnomer in that what it refers to is a situation where the maintenance award can be reduced to a lump sum, but it actually paid out in installments over time, for example $500 per month for a period of thirty-six months.  Lump sum awards are by far much more common. The problem was that until the past few years there was a Kentucky Supreme Court case that had ruled that lump sum maintenance awards were not modifiable.  That case was finally overturned in 2011 in the case of Woodson v. Woodson.

The Woodson case makes all maintenance awards modifiable where a showing of changed circumstances is so substantial and continuing as to make the maintenance award unconscionable.  This only makes sense given the fact that the statute allowing for modification or termination of maintenance has not made a distinction between permanent or lump sum maintenance and, in fact, says “any decree respecting maintenance” can be modified.  I suppose the court decided that the word “any” truly meant “any.”

Keep in mind that from my experience, the Woodson decision has only been applied to a modification of a maintenance award.  I have not seen and do not think it is likely that a court would come back after a decree is entered and then award maintenance based on a post-decree change in circumstances.  That being said, I have seen more than one case where a previously higher wage earner suddenly pleads poverty during the divorce and claims that his/her business has taken a sudden downturn once the divorce was filed.  In those situations, I have seen the court order maintenance of as little as one dollar per month for a period of thirty-six months with the idea that if the business of the obligor suddenly improves, the recipient would have standing to come back to court and ask for a modification/increase.  To my knowledge such rulings have not yet been tested at the appellate level.

With this ruling even if maintenance is awarded, it may not be locked in. If you have been hit with a maintenance award and can show that the award is no longer equitable and is now actually unconscionable, you may be able to finally get some relief.

Photo courtesy of Johan Kuno

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

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