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.
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.
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.
Posted in Distribution of property, Family Law, Real Estate law
Tagged dissolution of marriage, divorce, joint tenants, quick claim deed, quickclaim deed, quit claim deed, quitclaim deed, real estate, tenancy in common, transfer of property
I met with a couple today who reminded me of the importance of at least doing a basic will for blended families. The father wanted to make sure his step-children were treated as though born naturally of him. This would not happen under intestate laws (laws governing how stuff is divided absent a will). He wanted his estate to reflect his heart towards his children. So, I was able to do a basic will for him to make sure that happened.
If you have a blended family be sure to talk to a lawyer who understands these issues to make sure your family is protected the way you want if you were to pass away.
An opposing attorney may tell you, if you are not represented by a lawyer in a divorce action, that child support is very cut and dried and the amount they are proposing is determined by statute. This is a partially true statement. It is determined by statute and in the realm of things, it is indeed cut and dried in comparison to other legal matters. However, there are areas that factor into child support that are not addressed specifically in statute.
For example, the Kentucky Revised Statutes allow for a judge to impute income to a divorcing husband or wife in setting the amount to be paid, but it does not mandate this nor does it say how income is to be imputed. Imputing income to a spouse who only works part-time may mean using their same base pay but treating them as though they worked 40 hours a week. This may not be done, though, with parents of very small children.
Another way income may be imputed is if the spouse has some advanced degree or training and they simply choose not to work in that field even though it would pay better. A judge can consider this in setting an imputed income.
The reason to seek imputing income to your spouse (or co-parent if not married) is because it will decrease your percentage of income as it relates to the combined income of the couple. This usually results in a net decrease in the amount of child support you will be required to pay. But, if you are the person seeking child support to be paid to you, disregard everything I just said.
Long ago I wrote a post on the Kentucky Bankruptcy Law blog about how equitable distributions as a result of divorce are treated in a Chapter 13. You can read that post here. In short, a domestic support obligation that arises from the distribution of property will be treated as a general unsecured debt in a Chapter 13. This creates a quandary for settling matters, especially in this market where houses (the major asset that is divided up in a divorce) take so long to sell.
If there is a major asset, like a house, that has equity to be divided and one party wants to hold onto it or control its sale, one strategy is to realize that equity through debt. This can be done two ways. The simplest way and best way is the party holding onto that asset to take out a loan for the amount of equity owed and give that upfront to the other spouse. That used to be easier to do, but with dropping real estate values, obtaining a loan, even a secure one, could be difficult or impossible.
A second approach would be for there to be a promissory note from the spouse keeping control of the asset to the other party and secure that loan against the property. While this is not as good as having cash in hand, it is far better to have a secured debt going into a Chapter 13 than just an unsecured domestic support obligation that can get discharged. Since it is likely a junior lien on the property, then it could still not be paid in full, but the chances are at least better.
Bankruptcy of an ex-spouse after the entry of a divorce decree (the dissolution of a marriage) can have substantial implications of obligations owed by that ex-spouse to you. I’ve written a post regarding domestic support obligations in Chapter 7 as compared to Chapter 13 bankruptcy and I encourage you to click over and read it since I am not going to go into details here. What I do want to reiterate here is that it is important to know how child support, alimony (maintenance) and equitable distributions of assets are treated in bankruptcy.
In order to insure you do not end up getting paid only a percentage of what is owed to you from distribution of marital assets, be sure to get your share of assets right away rather than allowing for payment over time. The most common example is where one party wants to keep the marital residence after the divorce is final. They agree, then, to pay their soon to be ex-spouse a set number of dollars of the equity of the house over time in exchange for retaining the house. Later they go into Chapter 13 bankruptcy and suddenly, you only get 10% or less of what’s owed to you and they get to keep the house.
As hard as it may be, the more financially sound thing to do is to insist of the property being sold or refinanced and realize your share BEFORE ever quitting your interest in the property. Also, just because something is called “child support” or “alimony” does not make it non-dischargeable. The bankruptcy court can make its own determination based on the facts of the case as to whether it is actually an equitable distribution of property under the guise of alimony or child support, so it is risky to try and realize your share of equity by increasing child support or getting alimony.