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.

 

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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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What is Environmental Neglect of a Child

I finished a five-hour long hearing (known as a CAPTA hearing) appealing the finding of neglect by the Cabinet for Health and Family Services, Department for Protection and Permanency (“Cabinet”). I will not know the outcome of this for at least thirty (30) days and even then the recommendation by the hearing officer will not be final. So, I do not want to comment on this specific case. However, it was an “environmental neglect” investigation that resulted in a finding of neglect and I discovered in the hearing that the investigation worker did not even know the regulatory requirements for the investigation to even have been taken. So, I thought I would write a little bit about that.

The Cabinet operates under Kentucky Revised Statutes (“KRS”) found in the 600 section of the code AND they also must comply with the Kentucky Administrative Regulations (“KAR”) found in KAR 1:330. That regulation requires two elements to be present to move forward with an environmental neglect investigation. First, there must be “serious health hazard” in the home. Second, the person in the caretaking role of the children must fail to take appropriate or reasonable steps to fix the serious environmental hazard. If either of these elements is absent, then the Cabinet can still get involved, but only in the capacity of determining if the family is in need of services or not.

A Family In Need of Services Assessment (“FINSA”) is meant to help families that are struggling in some way and need help, but do not fall into the category of neglectful or abusive. Unfortunately, there is tremendous subjectivity built into these matters, especially when it comes to housekeeping. Social workers raised in very clean and neat environments find dirty homes to be offensive. Social workers who do not understand the demands of parenting often fail to take into account that housekeeping falls to a lower priority in meeting the children’s’ need when resources of time and energy are limited.

So, many of these “dirty house” investigations get substantiated based on the workers own perceptions and biases. There is no standard adopted by KRS or KAR that comes anywhere near an objective scale. The reality is, children live in dirty conditions and still thrive. In fact, some theorize that excessively clean homes pose a greater health risk long-term than dirty homes. I read one article that said that mobile infants and toddlers develop better motor skills when there is some clutter of toys allowed rather than everything being kept neat and tidy. But, social workers are not given such information and they are left with no objective way to assess whether a home is merely dirty or if it poses a “serious health hazard”. It is entirely subjective.

The subjectivity extends to what are reasonable or appropriate steps to take to ameliorate or fix the health hazards. I have found that some social workers are fairly laid back while other ones are quite demanding. Again, it comes back to that individual social worker’s disposition and perception. If you find yourself in such a situation, go ahead and file the CAPTA appeal form or speak to an attorney well within the thirty (30) day period in which an appeal can be filed.

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Hiding assets in a divorce – just not worth it

Unlike other civil litigation matters, there is standard discovery required under the Family Court Rules of Practice and Procedure (FCRPP) in Kentucky. The rules require that the Preliminary Verified Disclosure Statement be exchanged by each party in a divorce which can be accessed here: Preliminary Disclosure AOC 238. This must be exchanged early in the litigation. If the divorce ends up going to a final hearing instead of settling, then the AOC 239 needs to be exchanged. This is the Final Verified Disclosure Statement. Each of these are completed under oath.

Some judges, such as some of the Fayette County Family Court judges, allow the Preliminary disclosure to be waived while other judges, such as in Woodford, Scott and Bourbon Counties, require the Preliminary disclosure to be submitted no matter what (which is strictly in keeping with the rule). While this is the minimal required disclosure to be produced, it does not preclude requesting other discovery under the Rules of Civil Procedure.

Sometimes people are tempted to leave assets off of these disclosures. This just seems silly to me. The other party nearly always discovers the omission. If assets are hidden, then that provides grounds for any settlement or judgment entered to be set aside and tends to piss off the judge.

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

Quick, claim the quitclaim

I took a call from a lady who has called several times over the past two years for help on various things. Today she was asking about a quitclaim deed. Some call this mistakenly a “quick claim” deed because they think it is quick. Actually, it is a “quitclaim” or “quit-claim” deed because the grantor is quitting their claim to the property. They are merely relinquishing any right or interest they may have in favor of the other owner.

In one sense, no transfer occurs in a quitclaim deed and so, it can only be used when the other party has an interest already. My caller, though, wanted her soon to be ex-husband to give his interest to their daughter. I had to explain that this would not work for a quitclaim deed because an actual transfer was occurring. This meant likely transfer taxes would be involved and a different kind of ownership. Instead of joint ownership with the remainder in fee simple to the survivor – the typical husband and wife ownership – it would be a tenancy in common.

Joint ownership, if it were to be imagined, means both parties own 100% of the property concurrently and it would take both parties to sell or transfer the property. Tenancy in common, in contrast,  allots a percentage of ownership to each party and each party can convey their percentage of interest or even a portion thereof to another party or parties.

Despite the implication made by my title, there is no “good” versus “bad” ownership type here. I just thought the title was catchy. However, there are implications and it is important for family law practitioners handling divorce cases to have a rudimentary understanding of real property laws and issues.

What the caller wanted to be done could be done by a different deed; but not with a quitclaim deed. Furthermore, such a transfer would technically trigger a default of the mortgage allowing the lender, if they so chose, to foreclose. The likelihood of this actually happening is an entirely different matter. If it were me personally doing this, I would not be terribly concerned about this eventuality. The transfer would, of course, be subject to the mortgage.

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