Reducing the Expense in Legal Separation or Divorce

For a really long time there was a lady here in the Lexington area who sold forms for people to fill out to file divorce. Many referred to her as “the hut lady” because of the facility that she operated from. However, she was eventually put out of business for the unlicensed practice of law. I do not know the details, but I assume that she helped people fill those forms out and, obviously, was not a licensed attorney. Judges were often frustrated by the errors that abounded in these particular divorce cases.

However, in the absence of the hut lady’s low cost forms, there are now many people in circumstances where they need the legal protections of the court, but they are unable to afford help and are also unable to secure the limited services available through pro bono services or legal aid clinics.

One alternative that I provide for people who are in agreement on issues of custody, timeshare, child support, maintenance (if any) and division of the marital property and debt is the service of scrivener. That is a fancy word that is basically one who plays the role of scribe. They take down the information and agreements and put it into the proper format acceptable to the court. They do not appear at court and do not represent a party as an attorney, though one needs to be a lawyer to provide this service.

I have been quite vocal that I am not in favor of divorce generally, yet I am aware that there are circumstances where people simply cannot remain in the marriage as it exists. So, one of the advantages of using me (or lawyer of your choice) as a scrivener, is that I can give information on the options available under the law including divorce and legal separation.

For this service as scrivener, I am able to charge my lowest possible flat rate that includes a consultation and preparation of the documents, but not the filing fees with the court. If you cannot afford a lawyer or you want to minimize the conflict and litigation that can arise in a divorce, feel free to give me a call and I will explain the details of how this works.

Posted in Attorney Fees and Other Costs, Child custody, Child support, Distribution of property, Divorce / Dissolution of Marriage, Divorce lawyer tactics, Family Law | Tagged , , , , , , , , , , | Leave a comment

People Ask: “I never get to see my child, do I have to pay support?”

Do I have to pay child support if I don’t have custody or get to see my child? This is a common question I hear and the answer is “yes”; child support, child custody and timeshare are different issues. So long as a parent retains parental rights, it does not matter whether they have sole custody, joint custody or no custody – child support will be awarded. Parental rights exist for any biological parent or any parent of a child born to them in marriage whether or not biological. These “rights” exist as a matter of course and no action has to occur to create them. They also arise when an adoption occurs. Custody, however, refers to a parent’s exercise of authority. I know, this does not make sense because the common meaning of the word “custody” is to have in one’s possession, care or control. Well, in family law in Kentucky, “custody” focuses on that last item: control (or authority). So, even if a parent has no authority to make decisions for their child, they still have other rights and responsibilities. One of those rights is the right to spend time with their child. One of the responsibilities is to provide financially for their child. These are separate and apart from one another so that even if you do not see your child, you are still responsible to provide financially.

Also, so long as a parent retains parental rights, they also will have a right to timeshare. This right can only be restricted if it is proven that a parent’s contact creates a harm to the child’s well-being. In most situations where parents are not together, one parent may have the child most of the time, least of the time, or roughly equal time with the other parent. Except in roughly equal timeshare, the parent with the child most of the time will receive child support even if they earn more money. In roughly equal timeshare situations this changes and the parent making the least money will receive child support and most courts modify it in various manners.

There is no statute directing how child support gets modified in even timeshare. Some judges use a “Colorado” formula that involves a multiplier (usually 1.5) of the regular statutory support amount to reflect the fact that each home has to provide extra expenses when the child stays there half the time. This multiplier could go as high as 2x in situations where the homes are very far away and each home has to provide exactly the same clothing, furniture, toys, books, and other living expenses as the other home because it is too cumbersome to take items back and forth between the homes. Other judges simply take the support given in statute for traditional timeshare situations and cut it in half. And, some judges do more of a best guesstimate process. In any situation, though, child support will be award because it is an innate responsibility for a parent to provide financially for their child.

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

Divorce: Reducing cost and contention

The emotional, relational and spiritual costs of divorce are so high and, if divorce must occur, such costs can be mitigated by keeping the process respectful. Unfortunately, lawyers occasionally add to the level of conflict, raising those costs, and also the financial cost of divorce or legal separation needlessly. There is an alternative to obtaining counsel to represent the parties when the husband and the wife are able to agree on the terms of a divorce and want the process to remain amicable. Besides having no legal assistance at all which can prove challenging to know all the rules, either or both of the parties can retain a scrivener.

A scrivener does not represent either party (as opposed to the very risky joint of representing of both parties). A scrivener acts as an educated scribe who knows how to put the agreements of the parties into the proper format and wording so as to accomplish what BOTH parties have agreed upon. The scrivener denotes they prepared all the documents, however they do not appear in court or move the matter forward.

This cost saving approach works only when the two parties are able on their own or with the benefit of wise counsel to agree on all issues. If the parties fall out of that agreement, then the scrivener cannot then represent either party, so there is some risk of having to start over with a new lawyer.

Posted in Attorney Fees and Other Costs, Divorce / Dissolution of Marriage, Divorce lawyer tactics, Family Law, Legal Separation | Tagged , , | Leave a comment

The role of Guardian ad Litem taking shape:

Family Court Judges and Domestic Relations Commissioners have long used private, independent lawyers to facilitate resolving custodial and timeshare disputes in divorces. These lawyers are appointed by the judge as a Guardian ad Litem who is to, in some manner or another, look out for the children involved. The role of that Guardian ad Litem (or GAL) can be a confusing and ambiguous thing. However, the Supreme Court of Kentucky has issued a case opinion that resolves much of that ambiguity.

In Morgan v Getter, 2012-CA-000655-ME (Decided 9/18/2014), which is to be published and thus binding law, SCOKY has delineated two roles for a GAL that are essentially at odds with one another. The first role is that of an investigator who is supposed to interview people and look into circumstances as an arm of the court. SCOKY refers to this role as that of a Friend of the Court (FOC). The other role is that of a legal advocate for the children who is their lawyer and can file motions, call witnesses, introduce evidence, and all the other things that a lawyer for a party in a case can do.

SCOKY explains that if a GAL is operating as a FOC, essentially an adjunct fact finder reporting to the court, then they cannot also be operating as the lawyer for the child. As a fact finder, they must be subject to being put under oath to testify and be cross-examined just as if they were any other witness. That prevents them from also, then, being the chid’s lawyer due to various ethical concerns. Conversely, if the GAL is the child’s lawyer, then they cannot be made to testify and ethical protections, such as attorney-client privilege, remain intact.

The court also clarified that a GAL who is the advocate or attorney for a child does NOT have to pursue the wishes of the child. Instead, they can ascertain what they believe is BEST for the child, even if it is not the WISHES of the child. However, when these two things are not the same, the GAL should inform the court of what the child’s wishes appear to be.

On a practical level, if attorney’s for parties are asking for a Guardian ad Litem, they should be clear on which role they hope for that attorney to fulfill. Likewise, the judge will need to be clear in their order as to whether the GAL is an investigator such as a FOC, or an advocate for the child. Sometimes, both roles are needed which would require two different attorneys be appointed, obviously raising the cost to the parties.

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

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