I am afraid to say that using an attorney in a dissolution of marriage action is never going to be “cheap”. But there are some things to be aware of when looking for an attorney. A low “flat fee” or low initial retainer does NOT mean that attorney is going to be a lot cheaper. It means part of that attorney’s marketing approach is getting you in the door and signed up. So, be sure to ask what they see the typical costs running.
Also, a lawyer who instantly agrees with your position and seems to get fired up about it may cost more in the long rung. Lawyers in family law typically charge by the hour and so the more litigation that occurs the more they make. A lawyer that quickly is incited to emotional reactions (feigned or real) is a red flag that they will pursue more litigation instead of seeking resolution. Perhaps that is what you hope for, but be ready to pay for it.
Ordinarily this does not come up as an issue. However, occasionally either due to some preference of one of the parties or the preference of an attorney retained, a dissolution of marriage (divorce) action gets filed in a county where neither the husband or wife resides. Kentucky Revised Statutes section 452.470 says otherwise.
A dissolution of marriage is to be filed in a county where either the husband or the wife “usually resides”. An unwary and unrepresented party to a divorce, though, may unwittingly concede to an improper venue (a wrong county) by filing an answer or showing up to a court date. That is because an objection to an improper venue must be affirmatively plead right off the bat according to Kentucky Civil Rule of Procedure 12.08.
So, if you are served with a petition for divorce, the first thing you ought to do is contact a lawyer for a consultation.
A couple of days ago I wrote about a special needs trust mechanism provided for by law. While it primarily is an estate planning tool, it certainly falls into the realm of family law as well. Today’s post is about another such estate planning tool that you should be able to obtain from any family lawyer: the durable power of attorney.
Many attorneys will create a power of attorney for their clients, but they actually require some specific language that not all attorneys familiar with these requirements. For example, a grant of a power of attorney, which is a contractual arrangement, fails or becomes void when the grantor becomes incapacitated. This does nothing to help with estate planning where there is a likelihood of incapacity of an elderly family member. Therefore, one needs a “durable power of attorney” which has language that states that it will endure despite incapacity or the passage of time.
A power of attorney also must contain specific grants of power rather than just a general one. For estate planning purposes and to take advantage of maximum gifting exempt from estate and gift taxation, a durable power of attorney must specifically state that the grantee can make gifts of the grantor’s property. There are many other considerations that come into play with that “simple” old power of attorney, so it is best to consult a lawyer knowledgeable in this area.
Technically this post is about estate planning, but it has much to do with family law since it is generally family that is involved in the care of disabled family members. A Kentucky Revised Statute that came into effect on July 12th, 2012 opened up some options for protecting the assets of disabled person. KRS Sect. 387.865 makes it easier to create a special needs trust.
When someone has become substantially disabled they may qualify for two different sorts of government benefits. One sort of benefit is based solely on the condition of the prospective recipient. Social Security Disability Insurance (SSDI) fits in this category because you can receive it if disabled even though you may have substantial assets. The other sorts of benefits are “means tested” programs. In other words, you have to not only have the condition but also lack the means to provide for yourself. Long term care paid for by Medicare is this sort of benefit because excess assets are expected to be utilized to pay for care instead of Medicare.
A special needs trust is one ordered into being by a District Court Judge, usually one in the Probate Division. The petitioner pursuing creation of the trust has specifically mandated pleadings to make and proposes the language of the trust. Once the court orders it into being, the special needs trust protects assets, such as monetary awards from lawsuits or settlements over a negligent injury, from going immediately to pay for things that Medicare could cover. A provision in the trust allows for those assets to be used only for supplemental care costs over and above what Medicare would pay.
This is not a vehicle to pass assets on to heirs because the statute requires that any assets left over after the disabled person is deceased be reimbursed to the state. However, it can definitely soften the financially blow to family of the disable person and prevent them from exhausting their own resources.
I have, at times, successfully offered a couple who wish to have a legal separation or have determined for certain that a divorce must occur the services of scrivener. First of all, I am not commenting on this to in any way encourage divorce. Divorce usually does not accomplishes the freedom or healing the parties expect. Rather, I am merely offering an alternative to the traditional adversarial lawyer versus lawyer dissolution action that can be so costly.
A scrivener does not represent either party (as opposed to the very risky joint representation 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.
Ordinarily, child support is ONLY modified if one party files a motion. And there is only a presumption of changing the child support if the new financial circumstances would cause a change of 15% increase or decrease in the amount paid. However, a recent Court of Appeals case, Seay v. Seay, 2012-CA-001786 (July 5th 2013) highlights one even that mandates a review of the child support regardless. The change can only date back to the date the motion was filed.
When a child is emancipated, then the child support must be reviewed as of the date of emancipation. A child is emancipated by operation of law once they turn 18 years of age OR at the completion of the school year if still enrolled in the year that they turn 19 years of age. This emancipation date CAN be changed by an agreement in the underlying divorce or custody case.