Child custody, timeshare and support in Kentucky

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.

Divorce: Just the beginning

Many folks come to me regarding a divorce and perceive it as an ending. Some do not want it to happen and others believe this “end” will set them free from something painful. While it does bring a few things to a close, divorce is more appropriately viewed as a beginning. And, as a beginning, it is very important how it begins because the actions and attitudes adopted early in the process will largely determine how the process will go forward.

What begins is twofold: 1) the legal process which can take many months, and 2) the process of dealing with the fall-out of the marriage and the divorce which can take years. Very few people who divorce actually sever all ties with their ex-spouse. Even when there are no children involved, ones’ ex-spouse usually continues to play some role in one’s life even if it is not one where there is little or no direct communication. The rates of second divorces being higher than first ones tends to support this notion. Having turned to divorce ones seems to make it a more ready position to take again and I cannot help but wonder if some degree of comparison between the marriages (and spouses) goes on at some level. The more obvious roles are when there are children involved or when property disputes outlive the actual marriage.

This perspective of beginning is important for a few reasons. One reason is that I caution folks to recognize that divorce is unlikely to meet their expectations for bringing freedom or joy to their life. Just as many people have unrealistic expectations about marriage from the start (which contribute to divorces), they also often have unrealistic expectations about divorce and become frustrated when it does not turn out as they thought. So, hopefully people will give deeper consideration to taking this major step if they realize it will not bring the level of freedom and joy that they expect. I believe you will find that mental health professionals would agree that the person considering divorce will have to work out the issues of the marriage relationship either in the marriage or out of it to find that freedom and joy, so no need to rush into a divorce in most cases (I’m not talking about situations of active infidelity and imminent physical danger).

A second reason for this caution is so that they can start well and a good lawyer will help with this. By starting well, I mean they will help them deal with anger, hurt and other issues in a more appropriate forum than in the legal process. I have been amazed when a person will spend hundreds of dollars in legal fees fighting over something that is only worth hundreds of dollars to begin with. This ordinarily indicates they are not really so concerned with the stuff as they are interested in resolving emotions and power struggles. If one goes into a divorce and brings contention into it, then the next dozen or so years are likely to be contentious also. However, if on goes into it being able to release things that are truly not that important, then the next dozen years are so are more likely to have a degree of peace.

Now, I recognize that this is not always possible. Sometimes, no matter how professional and amicable one party attempts to make the divorce, they cannot control their spouse. If they could control their spouse – well. . .. This does not mean it is time to fight fire with fire. That just results in massive damage to both parties. However, it does call for taking a firm (rather than aggressive) stance, deciding what is most important, and setting those boundaries. If one takes a firm stance that is reasonable, the judge is also more likely to recognize it and agree. So, avoid seeing divorce as an end to something; rather, recognize it is a beginning and, if it must be, then prepare yourself to begin it well.

A Just Distribution of Property: Domestic support obligations

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.

Domestic Support Obligations and Bankruptcy

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 your 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.  

Keeping it cool

It is so well-known that it is almost cliché that divorce is one of the most stressful experiences a person can undergo. This is because something is being ripped apart that was bonded together on every level. Both parties end up with really raw wounds and feeling vulnerable because their life has so drastically changed. Now, it is human nature to want to attack or hurt the other party at times in this process and sometimes that comes out in the courtroom (see my prior post on this). Other times, though, one of the parties does not even realize they are raising the heat of the divorce.

Today’s world of Facebook, Twitter, Google+ (and I suppose some folks still use MySpace) provides a ton of information to total strangers. In this oddly electronically exhibitionist environment, many people post or tweet comments about their soon to be ex-spouse without even considering the ramifications. At the most simple level, those comments are very capable of getting back to the estranged wife or husband and just fueling the hurt and anger. The more hurt and anger that exists in the divorce context, the less likely contested matters will get resolved. Now, that is fine with most lawyers because it insures a steady supply of work and income. However, it harms both parties because of the expense and because the wounds are made deeper rather than healing.

On the more complex level, your posts and tweets can be used as evidence in a divorce hearing. They can be introduced because they are an admission by the party that made the comment. All the attorney has to do is authentic the post or tweet by asking you on the stand, “Do you recognize this comment? Did you make this comment?” and you are toast. So, resist the urge to express yourself. Return temporarily to the olden days where people got their gossip the old-fashioned way through pure speculation rather than providing it directly with Facebook, Twitter and Google+ (sorry MySpace, I know no one who uses you). Keep the temperature of the divorce cool so that the damage is minimized and the chance of healing optimized.

Lawyer Tactics in Divorce: The attorney fee correlation

It has been awhile since I posted anything, and this one deserved to be said again:

The best paid divorce lawyers are the ones that get very aggressive, and downright hostile sometimes, towards the soon to be ex-spouse. They use a harsh tone of voice and demeaning terms whenever they are in court or even in mediation (at least when their client is watching). This is an odd thing on the surface since judges tire of such antics and are not swayed by emotional ploys. They are far more concerned in finding some reasonable solution than figuring out which of the spouses is the most messed up (by the way, they assume you are pretty much just as messed up as whomever you are divorcing, just in a different way). It is an even greater oddity in mediation. Such tactics practically guarantee that negotiations will fail.

So, why do these lawyers resort to such psychological assaults? Well, the most cynical answer is that it pays! People in divorces are likely at the angriest point in their lives and all that anger is focused on the one person they are convinced has ruined their life. And yet, they are now separated from the object of their wrath and under the scrutiny of the court so that they cannot cut loose on the other party as they would like to. Instead, they get the vicarious release of seeing their lawyer say hurtful, nasty things – AND IN PUBLIC TOO! It becomes worth every penny of the $250 to $300 an hour fee (not my fee, I’m talking about the top charging lawyers here). And, since negotiations break down, they get to see the show over and over again at the court’s motion hour. That is, until the money runs out. Suddenly the tune changes and it is time to either come up with another large retainer or begin to settle for less that destroying your spouse’s entire life.

When it is all said and done and the money that would have paid for your children’s college has been spent – what it left? Nothing was really resolved and there are a whole set of fresh injuries to nurse. So, if you want an expensive divorce – get an aggressive attorney. If, however, you want to get on with your life and experience some semblance of peace – find a lawyer that believes in resolving conflict rather than profiting from it.