Divorce: Reducing cost and contention

The emotional, relational and spiritual costs of divorce are so high and, if divorce must occur, such costs can be mitigated by keeping the process respectful. Unfortunately, lawyers occasionally add to the level of conflict, raising those costs, and also the financial cost of divorce or legal separation needlessly. There is an alternative to obtaining counsel to represent the parties when the husband and the wife are able to agree on the terms of a divorce and want the process to remain amicable. Besides having no legal assistance at all which can prove challenging to know all the rules, either or both of the parties can retain a scrivener.

A scrivener does not represent either party (as opposed to the very risky joint of representing 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.

Posted in Attorney Fees and Other Costs, Divorce / Dissolution of Marriage, Divorce lawyer tactics, Family Law, Legal Separation | Tagged , , | Leave a comment

The role of Guardian ad Litem taking shape:

Family Court Judges and Domestic Relations Commissioners have long used private, independent lawyers to facilitate resolving custodial and timeshare disputes in divorces. These lawyers are appointed by the judge as a Guardian ad Litem who is to, in some manner or another, look out for the children involved. The role of that Guardian ad Litem (or GAL) can be a confusing and ambiguous thing. However, the Supreme Court of Kentucky has issued a case opinion that resolves much of that ambiguity.

In Morgan v Getter, 2012-CA-000655-ME (Decided 9/18/2014), which is to be published and thus binding law, SCOKY has delineated two roles for a GAL that are essentially at odds with one another. The first role is that of an investigator who is supposed to interview people and look into circumstances as an arm of the court. SCOKY refers to this role as that of a Friend of the Court (FOC). The other role is that of a legal advocate for the children who is their lawyer and can file motions, call witnesses, introduce evidence, and all the other things that a lawyer for a party in a case can do.

SCOKY explains that if a GAL is operating as a FOC, essentially an adjunct fact finder reporting to the court, then they cannot also be operating as the lawyer for the child. As a fact finder, they must be subject to being put under oath to testify and be cross-examined just as if they were any other witness. That prevents them from also, then, being the chid’s lawyer due to various ethical concerns. Conversely, if the GAL is the child’s lawyer, then they cannot be made to testify and ethical protections, such as attorney-client privilege, remain intact.

The court also clarified that a GAL who is the advocate or attorney for a child does NOT have to pursue the wishes of the child. Instead, they can ascertain what they believe is BEST for the child, even if it is not the WISHES of the child. However, when these two things are not the same, the GAL should inform the court of what the child’s wishes appear to be.

On a practical level, if attorney’s for parties are asking for a Guardian ad Litem, they should be clear on which role they hope for that attorney to fulfill. Likewise, the judge will need to be clear in their order as to whether the GAL is an investigator such as a FOC, or an advocate for the child. Sometimes, both roles are needed which would require two different attorneys be appointed, obviously raising the cost to the parties.

Posted in Child custody, child protection, Divorce / Dissolution of Marriage, Divorce lawyer tactics, Evidence, Family Law, Time-share | Tagged , , , , , , , , , , , | Leave a comment

Welcome our Newest Attorney: Matthew D. Henderosn

Check out our announcement from this morning. Troutman & Napier, PLLC is growing and adding new legal service areas such as Criminal Defense.

Posted in Child support, Divorce / Dissolution of Marriage, Estate planning, Family Law, Solo & Small Firm, Solo - Small Firm Practice | Tagged , , , , , | Leave a comment

It takes more than agreement for a custody order

The Kentucky Court of Appeals decision of London v. Collins, 242 S.W.3d 351 (2007) required findings of fact regarding “best interest” of the child to be made for any custody decision. The court’s record had to include supporting, competent and substantial evidence and a lone statement that the parties agree it is in the best interest is longer considered sufficient by many courts in order to issue an order of custody. Instead, they look for specific finding for each factor described in KRS Sect. 403.270. The Kentucky Court of Appeals held that, “we believe that for a custody order to be a “custody decree,” within the meaning of KRS Chapter 403, it must be based on the standards set out in KRS 403.270(2).”Supra.

While some courts will still issue an agreed custody order without these specific findings, it is not the best practice. Even if the divorce or custody action is being submitted on the record and all parties are in agreement, it is best to submit a Deposition Upon Written Questions addressing each factor. A staff attorney for Judge Gormley over in the 14th Judicial Circuit has provided the attached example as a guide.


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What kind of lawyer would you prefer?

I do not know what is wrong with me!? I had need to consult with an attorney long ago before I ever contemplated law school. The meeting consisted of me pouring out the whole situation I faced and the attorney responding with a head nod or a grunt – maybe both and talking to me about setting up a retainer. Naively, I took his silence as a sign of wisdom and experience. Frankly, that is smart lawyering. He let me jump to the conclusions I most wanted without ever promising a thing.

I am not smart. At least not that smart when it comes to “reeling in” clients.

I talk a lot. I give out more information, usually, than most clients really were looking for or can retain. It is not hubris that loosens my tongue. I genuinely like to help people and I love sharing what I can. That is a big reason why I do this blog. Sure it is also marketing, but I could think of many other marketing approaches that would reach larger audiences (y’all can help me with that!). And, writing these posts the way I do usually takes a lot of time because I research what I write about and I try to make it actually useful.

Anyway, I am experimenting with a new approach. I am posting little short video clips of legal information when I come across something that would be helpful (or perhaps humorous). I figure I might even stick some good old-fashioned parental advise in there from time to time just in case my daughters are viewing the clips. Thirty seconds are about the most I can expect to have them hooked in on a frequent basis anyway.

So, find me on Instagram as @napierlaw or on Twitter as @gnap7 – and I look forward to this experiment in social media! If you like it, I may even migrate to Vine where the clips can go longer.

Posted in ethics, Humor, Life & Law, Solo & Small Firm, Solo - Small Firm Practice | Tagged , , , , , , | Leave a comment

Keeping the House

One of the most common desires divorcing couples who have children express is for one of them to keep the marital residence. Understandably, there is a strong emotional attachment to a home, especially one that is owned. The desire to keep that home is primarily motivated by a desire to keep as much stability as possible for the children.

This is indeed a great goal, however it is not often an achievable goal. Most couples purchase a home at the highest end of what their family income can afford. Then, when a divorce comes, they are faced with paying for two residences rather than one. Other expenses typically multiply as well since all the efficiencies of pooling resources is gone. Also, new expenses for dating and getting in shape also pop up soon after separation.

Divorce leads to much higher expenses all the way around, but income usually is pretty static. Other than for those rare couples with lots of disposable income, the math leads inexorably to the conclusion that the marital residence must go; both parties must down-size. When either party refuses to look at this reality, divorces tend to get messier.

The desire to hold onto a marital residence, even when it simply is not financially feasible, leads to extra litigation. This plays out by one party, typically the wife since more often than not she earns less and is home more, fights for a level of alimony (maintenance) and child support that will let her keep the house. Even when successful, this strategy saps both households’ budgets to the point where there is no margin. And, either party living on an extraordinarily tight budgets leads to ongoing tension and fighting.

I truly do understand the desire to keep at least one area of life consistent for your children. However, I believe the far more valuable thing for the children to adjust well to the divorce is to minimize strife rather than hold on to a house. Get your attorney to help you think though what is reasonable given the combined household income. They will have access to your soon-to-be ex-spouse’s finances. If keeping the house is going to spread both budgets too tight, then it just is not worth it.


Posted in Family Law, Distribution of property, Child support, Divorce / Dissolution of Marriage | Tagged , , , , , | Leave a comment

Holidays are rough for families in conflict

Yes, I practice family law. And yes, I handle divorce actions as part of that practice. And, I am most successful in that when I help my client reconcile. Sometimes this reconciliation means the divorce never happens and they re-invest in their marriage. Sometimes, though, reconciliation comes through making peace through forgiveness but apart from one another. I prefer the former but I will also celebrate the latter.

Many couples who are struggling through conflict with one another just try to make it through the holidays. Sometimes this is for the children and sometimes for a parent. Sometimes it is out of hope for that Christmas miracle. I rarely see those for whom the miracle comes, but I hear about them and I know it happens. Marriages can be restored.

One thing I have learned, though, is that the conflict in a marriage is not the enemy. It is how that conflict is approached that matters. Some of the deadest marriages I have seen had no conflict at all. Nobody cared enough to fight. And, know that the holidays tend to increase conflict rather than decrease it when relationships are stretched thin. So, conflict during the holidays is a poor measure of whether to continue investing in your marriage.

The main point of this post, though, is to encourage people to get help early. If you are just barely holding on – well, do not keep attempting that alone. Seek out wise counsel and support. Find folks who are in favor of making marriages work rather than people who are still just a bit bitter over their own divorce. In fact, steer clear of friends and family that talk negatively about marriage generally and their marriage in particular. Seek out people who seem to be thriving in their marriage.

And if despite all of this, you pass that point of no return and a divorce is inevitable, find a lawyer who is going to encourage handling the divorce in the healthiest possible way while still looking after your interests. Be careful with lawyers who seem quick to just on your bandwagon; who seem to get upset for your and on your behalf. It is either a marketing tactic or a sign of a jaded lawyer. Find that lawyer that, instead, helps you answer tough questions and figure out what it most important and what can be released.

Posted in Divorce lawyer tactics, Family Law | Tagged , , , | Leave a comment