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Family Law and Bankruptcy Jurisdictional Intersection

There is a nice little Kentucky Supreme Court opinion called Howard v Howard, 336 S.W.3d 433 (Ky. 2011) every Kentucky family lawyer and consumer bankruptcy lawyer should read. The first part of the opinion addresses child support and contempt sanctions, which to be sure are fun things to know about, but the meat of the opinion spells out the concurrent jurisdiction of Kentucky Courts with the Federal Bankruptcy Courts and how that effects discharge of certain kinds of debt.

Under 28 U.S.C. Sect. 1334(b), a state court has the same and concurrent jurisdiction as a bankruptcy court to make a determination as to whether a particular debt is discharged by a bankruptcy. In the Howard case, the ex-husband had agreed to be responsible for certain debts the ex-wife had also co-signed. However, he went into a Chapter 7 and received a discharge of that debt. Even though the ex-wife had notice of the bankruptcy and did NOT file any objection in the Chapter 7, she was still able to go to the Kentucky Circuit Court where the divorce had occurred and get a ruling that ex-husband still owed the obligation to her.

You see, the divorce decree created an obligation between the ex-husband and ex-wife even though a third party was the direct creditor. This obligation was found to be an 11 U.S.C. Sect. 523(a)(15) obligation as a result of a divorce. Therefore, by operation of that law, that obligation to the ex-wife was not touched by the bankruptcy. When the original creditor came back to collect from the ex-wife, she was able to pursue contempt against the ex-husband and win. This saved ex-wife from having to pay for a lawyer in the bankruptcy in addition to paying for a lawyer in the Circuit Court case.

Posted in Attorney Fees and Other Costs, bankruptcy, Child support, Divorce / Dissolution of Marriage, Evidence | Tagged , , , , , , , , | 1 Comment

Merry Christmas

May you find for yourself and extend to your family the grace and love this Christmas season represents.

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Legal Separation v Divorce

One would be hard pressed to find an attorney in Kentucky who would bring up, much less advocate, the use of legal separation over that of a dissolution of marriage (divorce) in situations where a marriage appears to be failing. Most family law attorneys, when asked about it, would dismiss it as just adding extra steps in what they assume is an inevitable divorce. However, I believe it is a viable alternative for a narrow segment of people who are needing some legal protections but retain even a tiny note hope for their marriage.

Kentucky Revised Statutes (KRS) section 403.140 provides for a legal separation as an alternative to the marriage being dissolved entirely. Subsequent provisions provide for division of property, establishment of child support, timeshare and custody, and setting spousal maintenance (alimony) in either a legal separation or a divorce. So, in most respects a legal separation and a divorce are indistinguishable. In fact, if a separation agreement is reached but the matter is later converted to a divorce, that same agreement will remain according the unpublished Kentucky Court of Appeals case Dobbs v Dobbs, 2010-CA-001068-MR. However, there are some critical differences to know before taking this course of action.

The first and most obvious difference between these two legal mechanisms is that with a decree of divorce the parties are free to remarry while a decree of legal separation preserves the status of being married. To file for divorce, one must testify that the marriage is “irretrievably broken”. That is the one legal basis for divorce in Kentucky. Of course, if one actually considered the definition of the word “irretrievably” and adhered strictly to that standard, we would have very few divorces. But, the reality is that has simply become a formality and as long as one party is willing to say the break in the marriage is irretrievable, no judge presses further. In a legal separation, no assertion that the marriage is irretrievably broken is put forth.

For some of you out there, irretrievably broken still means a divide between you and your spouse much deeper that feeling like you no longer love them. For some of you, you are discouraged and even heart-broken over the harm that has heaped up in the marriage, but you still believe drastic steps on each side plus a little divine intervention can redeem the relationship. For you, legal separation may be just the catalyst for that to happen.

It is not without risk, though. If one spouse files a petition for legal separation, then the other spouse can respond with a request to convert it to a divorce action and they can put forth that testimony of the marriage being broken irretrievably. The filing of the separation action, then, could be the very thing that pushes your spouse to divorce you. So, you need to know that the protection afforded by the law is actually needed before taking this risky step.

The protection you can get under a legal separation includes disentangling finances. So, if your spouse is taking your family towards financial ruin either through recklessness or bad acts, a legal separation may be necessary. Examples include where one spouse has an addiction that is costing lots of money and assets seem to be disappearing or where a spouse is failing to file taxes or filing false tax returns. Once the decree is entered, your income and property you acquire are yours alone and not marital assets.

The protections also cover determining who has what authority over the children and where children spend their time. So, if your spouse is struggling with issues that are harmful to the children, such as alcoholism or violence, a legal separation may be necessary while they get treatment.

A legal separation can also be used to put parameters on the contact between yourself and your spouse. If there is violence, then you can obtain a Domestic Violence Order without doing a divorce or legal separation, but sometimes the interaction falls short of violence or threats of violence but it continues to be toxic in some manner. This is where the legal separation process can be utilized to give some space while each spouse gets help for those issues.

A legal separation does not offer exactly the same protection as a divorce. For example, if you die during a legal separation your spouse could claim their dower or curtesy interest in your estate. These are inheritance interests – dower being the wife’s interest in her husband’s estate and curtesy being the exact same thing for the husband. So, even if you changed your will to leave everything to your children during the time a legal separation is in effect, your spouse could claim up to one-half (1/2) of your real estate and personalty interests upon your death. However, such concerns are usually not on the forefront of the mind of someone who wants to do everything they can to honor their marriage vows and resurrect their marriage since the same risk is present in a healthy marriage as well.

Posted in Child custody, Child support, Divorce / Dissolution of Marriage, Family Law, Legal Separation, Pleadings | Tagged , , , , , , , , , | Leave a comment

Passive Bullying

A tactic that some people resort to in a divorce situation is simply digging their heals in and refusing to cooperate. They figure that what’s theirs is theirs and the soon to be ex-spouse will just have to pry it out of their cold, dead hands before they will voluntarily relinquish any of their stuff. They refuse to respond to discovery requests or even comply with the orders of the court. All this while they take secret glee in seeing their almost-ex run up attorney bills. This is essentially passive bullying.

Sure, this approach works for a time. In fact, some attorneys engage in similar strategies but the best ones do not. They avoid it because they realize that such recalcitrance eventually invites the ire of the Judge who has broad authority to order compliance, order production of discover, and issue sanctions against the stubborn one (including and up to six months in jail). In order to get to that point where the judge is willing to sanction the obstinate one, motions must be filed and show cause orders pursued. In the short run, this does increase attorney fees but eventually even the most intractable party will relent.

If you are attempting a divorce on your own and the other party is practicing this passive bully approach, you may want to consider getting an attorney. In the long run, they can get better results and insulate you from the first hand frustration of the situation.

Posted in Discovery, Divorce / Dissolution of Marriage, Divorce lawyer tactics, Family Law | Tagged , , , , , , | Leave a comment

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 , , , , , , , , , , | 1 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