Litigation Disillusionment

Any family law practitioner who has handled at least a handful of divorces has encountered the situation where the actions of the person they represent confounds them. What often stymies the lawyer is that their client seems determined to spend hundreds or thousands of dollars to secure some item that has a monetary value far less than the cost of litigation. It is the proverbial fight over the $10.00 toaster. To the husband or the wife, this results in mounting tension or frustration towards their attorney because they just do not get it. This is the point where many attorney – client relationships break down and another lawyer is sought. Starting over with a new lawyer is costly so it is worth investigating what is going on in this communication breakdown before parting ways.

In my experience, the issue of the toaster (or whatever item it is) revolves around a deep need for that spouse to be heard. The dissolution of a marriage (legalese for “divorce”) is the legal manifestation of an intensely personal and painful pulling apart of two people that were “joined together” in ways that defy explanation. But, the legal process does not lend itself in any way, shape, or form to addressing that pain. In fact, the actual purpose of a family court or role of a judge in a divorce is the expeditious resolution of conflict that the parties themselves have been unable to resolve.

This desire to be heard motivates the process imperceptibly but pervasively. Often, the husband or the wife holds on to the notion that if they just get in front of the judge and are able to speak their mind, then they will be satisfied with the outcome even if the judge rules against them. This may actually be true …. if getting in front of the judge actually allowed one to speak their mind.

However, the litigation process itself prevents the party from fully speaking expressing where they are coming from. Even though many divorce attorneys tend to be a little lax with the rules of evidence in divorce cases, there are still objections that inevitably halt testimony. There are objections to hearsay and objections to relevance and on and on. Each objection interrupts the story – their story – the deeply personal story that they trying to share with the judge. Things that matter to the person testifying cannot be said. They leave the stand with some degree of dissatisfaction because they were not heard – not fully. They step down plagued with this vague sense of, “If only I’d been allowed to say this or that, the judge would have understood.”

Not only do the rules of evidence bar the wife or the husband from speaking their mind, but the demands of many, many cases on the judge’s docket constrains the time available. Judges, even if they want to, simply cannot listen to everything. They hear enough for them to make a decision on a particular topic and then they must move the matter forward so the next set of litigants has a window of time to put forth their best arguments.

It is an axiom among divorce lawyers that, at some point or another in the court process, their client will be dissatisfied with them and the outcome. I believe this is largely because their client never felt heard. However, there is an answer to this dilemma; this tension between the need of a person to tell their story and the constraints of litigation. The alternate conflict resolution option of mediation can be, if done well, the arena where both parties walk away having been heard. I plan to switch gears and devote this blog to the topic of conflict and dispute resolution, otherwise known as mediation. Hope you join me!

Posted in Divorce / Dissolution of Marriage, Divorce lawyer tactics, Legal Separation, Life & Law, Mediation & Conflict Resolution | Tagged , , , , , , , , | 1 Comment

Justice Remains Elusive

I began this blog years ago with this idea that people go to court seeking justice, but find this pursuit to be daunting. Justice was elusive to a vast number of litigants. This was especially true in the family law arenas: divorce, custody, child support, timesharing, grandparent visiataion, and neglect & abuse proceedings. A decade has past and, based on my experience with more litigants than I can count, justice remains elusive.

That is why I am excited to take my law degree plus my courtroom and litigation experience and combine it with my prior career in the human services field to offer mediation services with an emphasis on family conflict resolution. I have seen the incredible value of mediation that is well done and I am convinced that mediation is the best hope for those in litigation or in conflict outside the courts to find what they actually seek.

Mediation has worked effectively in all conflict scenarios where two or more parties have reached an impasse: couples, teens and parents, students with students, students and teachers, business to business, co-workers, employers and employees, roommates, and the list goes on. I am so passionate about this service and the potential it offers to anyone who are in conflict that I offer an affordable fee scale to qualifying parties. Call or email me to learn more – and don’t wait until you are actually in a lawsuit; mediation is the best way to avoid the expense of litigation.

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We have a new iHome:

I hope you all will take a moment to visit our firm’s new website by clicking this link: Troutman & Napier, PLLC or typing in

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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