Welcome our Newest Attorney: Matthew D. Henderosn

Check out our announcement from this morning. Troutman & Napier, PLLC is growing and adding new legal service areas such as Criminal Defense.

Posted in Child support, Divorce / Dissolution of Marriage, Estate planning, Family Law, Solo & Small Firm, Solo - Small Firm Practice | Tagged , , , , , | Leave a comment

It takes more than agreement for a custody order

The Kentucky Court of Appeals decision of London v. Collins, 242 S.W.3d 351 (2007) required findings of fact regarding “best interest” of the child to be made for any custody decision. The court’s record had to include supporting, competent and substantial evidence and a lone statement that the parties agree it is in the best interest is longer considered sufficient by many courts in order to issue an order of custody. Instead, they look for specific finding for each factor described in KRS Sect. 403.270. The Kentucky Court of Appeals held that, “we believe that for a custody order to be a “custody decree,” within the meaning of KRS Chapter 403, it must be based on the standards set out in KRS 403.270(2).”Supra.

While some courts will still issue an agreed custody order without these specific findings, it is not the best practice. Even if the divorce or custody action is being submitted on the record and all parties are in agreement, it is best to submit a Deposition Upon Written Questions addressing each factor. A staff attorney for Judge Gormley over in the 14th Judicial Circuit has provided the attached example as a guide.

BIC 403.270 DEPOSITION FORM (1)

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What kind of lawyer would you prefer?

I do not know what is wrong with me!? I had need to consult with an attorney long ago before I ever contemplated law school. The meeting consisted of me pouring out the whole situation I faced and the attorney responding with a head nod or a grunt – maybe both and talking to me about setting up a retainer. Naively, I took his silence as a sign of wisdom and experience. Frankly, that is smart lawyering. He let me jump to the conclusions I most wanted without ever promising a thing.

I am not smart. At least not that smart when it comes to “reeling in” clients.

I talk a lot. I give out more information, usually, than most clients really were looking for or can retain. It is not hubris that loosens my tongue. I genuinely like to help people and I love sharing what I can. That is a big reason why I do this blog. Sure it is also marketing, but I could think of many other marketing approaches that would reach larger audiences (y’all can help me with that!). And, writing these posts the way I do usually takes a lot of time because I research what I write about and I try to make it actually useful.

Anyway, I am experimenting with a new approach. I am posting little short video clips of legal information when I come across something that would be helpful (or perhaps humorous). I figure I might even stick some good old-fashioned parental advise in there from time to time just in case my daughters are viewing the clips. Thirty seconds are about the most I can expect to have them hooked in on a frequent basis anyway.

So, find me on Instagram as @napierlaw or on Twitter as @gnap7 – and I look forward to this experiment in social media! If you like it, I may even migrate to Vine where the clips can go longer.

Posted in ethics, Humor, Life & Law, Solo & Small Firm, Solo - Small Firm Practice | Tagged , , , , , , | Leave a comment

Keeping the House

One of the most common desires divorcing couples who have children express is for one of them to keep the marital residence. Understandably, there is a strong emotional attachment to a home, especially one that is owned. The desire to keep that home is primarily motivated by a desire to keep as much stability as possible for the children.

This is indeed a great goal, however it is not often an achievable goal. Most couples purchase a home at the highest end of what their family income can afford. Then, when a divorce comes, they are faced with paying for two residences rather than one. Other expenses typically multiply as well since all the efficiencies of pooling resources is gone. Also, new expenses for dating and getting in shape also pop up soon after separation.

Divorce leads to much higher expenses all the way around, but income usually is pretty static. Other than for those rare couples with lots of disposable income, the math leads inexorably to the conclusion that the marital residence must go; both parties must down-size. When either party refuses to look at this reality, divorces tend to get messier.

The desire to hold onto a marital residence, even when it simply is not financially feasible, leads to extra litigation. This plays out by one party, typically the wife since more often than not she earns less and is home more, fights for a level of alimony (maintenance) and child support that will let her keep the house. Even when successful, this strategy saps both households’ budgets to the point where there is no margin. And, either party living on an extraordinarily tight budgets leads to ongoing tension and fighting.

I truly do understand the desire to keep at least one area of life consistent for your children. However, I believe the far more valuable thing for the children to adjust well to the divorce is to minimize strife rather than hold on to a house. Get your attorney to help you think though what is reasonable given the combined household income. They will have access to your soon-to-be ex-spouse’s finances. If keeping the house is going to spread both budgets too tight, then it just is not worth it.

 

Posted in Child support, Distribution of property, Divorce / Dissolution of Marriage, Family Law | Tagged , , , , , | Leave a comment

Holidays are rough for families in conflict

Yes, I practice family law. And yes, I handle divorce actions as part of that practice. And, I am most successful in that when I help my client reconcile. Sometimes this reconciliation means the divorce never happens and they re-invest in their marriage. Sometimes, though, reconciliation comes through making peace through forgiveness but apart from one another. I prefer the former but I will also celebrate the latter.

Many couples who are struggling through conflict with one another just try to make it through the holidays. Sometimes this is for the children and sometimes for a parent. Sometimes it is out of hope for that Christmas miracle. I rarely see those for whom the miracle comes, but I hear about them and I know it happens. Marriages can be restored.

One thing I have learned, though, is that the conflict in a marriage is not the enemy. It is how that conflict is approached that matters. Some of the deadest marriages I have seen had no conflict at all. Nobody cared enough to fight. And, know that the holidays tend to increase conflict rather than decrease it when relationships are stretched thin. So, conflict during the holidays is a poor measure of whether to continue investing in your marriage.

The main point of this post, though, is to encourage people to get help early. If you are just barely holding on – well, do not keep attempting that alone. Seek out wise counsel and support. Find folks who are in favor of making marriages work rather than people who are still just a bit bitter over their own divorce. In fact, steer clear of friends and family that talk negatively about marriage generally and their marriage in particular. Seek out people who seem to be thriving in their marriage.

And if despite all of this, you pass that point of no return and a divorce is inevitable, find a lawyer who is going to encourage handling the divorce in the healthiest possible way while still looking after your interests. Be careful with lawyers who seem quick to just on your bandwagon; who seem to get upset for your and on your behalf. It is either a marketing tactic or a sign of a jaded lawyer. Find that lawyer that, instead, helps you answer tough questions and figure out what it most important and what can be released.

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Avoid timeshare conflict being your childrens’ Christmas gift

I have heard many family court judges admonish divorcing parties and attorneys that if they cannot agree on timeshare of the children during the Christmas holidays, then they should file their motion well in advance of the Christmas break. This is because they know from experience that conflict tends to mount higher among divorcing and divorced couples during the holidays. This results in a sharp rise in motions for timeshare modification in the weeks leading up to Christmas as well as emergency motions being filed.

The season celebrating God the Father giving up His most precious gift: His only Son born of Him, becomes the season of giving grief. This is because we all (not just divorced parents) turn the season into one of being entitled. An expectancy of receiving takes hold. As parents, we slip into holding the holiday itself as sacred rather than Jesus and due to that elevated status, we believe it is paramount that our children are with us during those holy days.

At the risk of losing family law business by running counter to this trend I adjure divorcing  parents, divorced parents, or parents never married to consider what the best gift for your children actually is this Christmas. That is, I stand a much better chance of getting clients from this post if I say: “Stand up for your rights; you deserve to have your children with you during Christmas!” Instead, I risk losing clients by asking the opposite. Do you want the season where God sacrificed His Son by giving Him over to us and for us to be marked by conflict for your children? Or, would you want to exemplify sacrifice by giving your children peace, even if that means you lose some hours or days of direct contact?

I recognize that this will not fit every situation. There are some of you out there where it truly would be harmful to the children to be in an unsafe environment during Christmas. There are some who have been taken advantage of over and over and it actually is time to take a stand. HOWEVER, the tendency for us is to always believe and claim we are the EXCEPTION rather than the one who needs to sacrifice. So, I hope that anyone who reacts to this post: Please seek to look at it prayerfully and honestly.

Posted in Child custody, Divorce / Dissolution of Marriage, Family Law, Time-share | Tagged , , , , | Leave a comment

When fraud hits home

I know this is not actually a “family law” issue, but some businesses pray exclusively on our desire to keep our families safe. Because of that, I wanted to re-post this article I wrote about violations of the Kentucky Consumer Protection Act here.

My caveat – many home security companies are legitimate and offer a service that their clients value. And, there are those that go about it in the wrong way. So, please be careful to research any home security company that approaches you and be sure they are reputable, that you need their service, and that you can afford their service.

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