Category: modification

Does Remarriage Affect Child Support in Kentucky?

Does Remarriage Affect Child Support in Kentucky?

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

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

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

Photo courtesy of Jeff Christiansen

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

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

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

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

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

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

Photo courtesy of David Blackwell.

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

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