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Tactics The Process Minimizing Divorce Costs Kentucky Is A No-Fault State Grounds For Divorce Jurisdiction And Venue Your Spouse's Residency Jurisdiction And Child Custody Disputes Mediation Resolution By The Parties The Truth About Divorce When Your Divorce Is Final Expenses In A Kentucky Divorce A Word About Divorce And Taxes Income In A Kentucky Divorce Debts In Kentucky Divorce Fair Market Values Inventory Of Marital Property Marital Property Importance Of Preparing An Inventory Of Non-Marital Property Non-Marital Property Property Division Deposition Testimony Discovery A Guide To Understanding The Legal Discovery Process Common Law Marriages
Non-Married Parents Children Of Unmarried Domestic Partners Joint Ventures Property Rights Partnerships Domestic Partnership Agreements Cohabitation Agreements Oral Agreements Are Not Recommended When One Partner Dies Health Care Directives And Living Wills Durable Powers Of Attorney Gay & Lesbian Couples Children Of Divorce Domestic Violence Tactics A Divorce Case can involve a number of trial tactics or styles of litigation. These tactics can include: - Energy methods: Simply wearing down the opposition with a slow and steady pace over the years in constant never ending litigation until you get what is fair.
- Burning the Bridges: A battle of attrition, where nothing is left. Pyric victories, where one side has won, but the cost was more than what they won.
- Divorcing as Friends: Working together to raise the children and fairly end the relationship as adults after realizing that you can't be husband and wife. You can work together as friends to provide the best home, the best environments, and the best models that you can be for your children. In this mode your divorce costs you the least amount of money. If there are problems you work them out together and you find answers. It is the model that I like the best. However as an attorney you have to be able to win in all the styles.
- Emotional and Psychological Chess games: Clients, Attorneys and even Judges can become out of control with emotions. In these divorces, blame, guilt, shame, and fear can rule and put attorneys judges and parties out of control. In these highly emotional situations attorneys, judges and clients often make the worst decisions. Psychological strategies can maneuver parties, attorneys and judges into disaster. Some attorneys and clients can become masters at maneuvering others. Winning requires a cool and objective head. Never do a divorce without objective qualified legal advice.
The Process
A divorce begins with the filing of a complaint. In the complaint, certain facts have to be part of the complaint. In Kentucky, the divorce must give the residence of the children for the last 5 years and any information about other litigation involving the children. In all states, in divorce cases the complaint must state if children are involved and child support must be calculated by a chart and tables (see the chart in our divorce manual -Kentucky). However, you can agree to a different amount if it is reasonable. The rules for any individual state are in that state's divorce statutes; however, the basic form for divorce complaints are almost always the same. If a divorce complaint leaves out facts they may be supplied at the final hearing. If a section of a divorce complaint is incorrect a judge will normally allow amendments and re-filing the divorce motion or complaint. All local divorce courts vary but their requirements are in their local divorce court rules. Individual local divorce courts will have specific local divorce forms that must be filed with the Divorce complaint. All Kentucky divorces must have a VS 300 stating statistical information about the divorce with the divorce petition. In most Kentucky counties only the VS 300 is required for the divorce. However, others require a financial disclosure for the Divorce. Within 20 days, an Answer must be filed to the divorce court by the Respondent. There may not be a need to file an answer to the Petition and instead a Divorce or marriage settlement agreement and an entry of appearance may be filed to finish the work for the Petitioner in the divorce. No hearing to finish the divorce can be held until 60 days after the answer or entry of appearance is filed if children are involved. If a person will not answer the divorce complaint, a default may be entered. In Kentucky, a warning order attorney will be appointed for the divorce Respondent if they fail to answer the complaint. This attorney attempts to contact the person and if they continue to fail to answer the divorce, a report is filed by that attorney stating what he did to contact the respondent and the default is granted. In the final divorce hearing, child support is calculated by a chart and property and debts are normally evenly divided. Child support may be agreed to at a different amount if reasonable. In contested divorce cases, mediation, trial briefs, hearings, motions and documents may need to be filed or answered. Psychological evidence and testing may also be ordered in divorce cases.
Minimizing Divorce Costs Divorce is as stressful as losing a job, the death of a loved one or any of life's other tragedies. It can also be extremely expensive. There are, however, things you can do to minimize the expense and emotional strain.
Mark Bryant and the attorneys on his staff have been practicing family law for
many years. In reviewing our history, there is almost no such thing as an uncontested divorce. It is possible, however, for a divorce to be relatively simple. If the division of the property is uncomplicated, the parties generally agree on terms and, especially if there are no children involved, a divorce can be resolved and finalized without a lot of blood, sweat and tears. Avoid battles. Battling clients earn attorneys much higher legal fees. The model that some attorneys use is to keep clients uninformed and constantly at each other. Standing up for you client (and constantly making sure that they are battling instead of really solving problems) keeps fees high and divorces going for years. Like most law firms, we charge a standard hourly fee. I know any lawyer's hourly rate sounds like a great deal of money, but that hourly rate includes all of the everyday costs necessary to maintain a practice (rent, supplies, equipment, staff salaries, insurance, etc.). At
The Bryant Law Center we feel that our fee is quite reasonable and in line with other attorneys with our degree of legal experience. If you engage Bryant
Law Center as your attorneys in a divorce matter, you would be billed for the amount of professional time required to adequately represent your interests in this matter. This includes paralegals' time spent talking with you on the phone, making initial drafts of the necessary pleadings, scheduling depositions, organizing financial records and other essential matters. This would also include any time meeting with you, taking depositions, preparing for and making appearances in court, and negotiating with the attorney representing your spouse. Many divorce cases are settled – not tried. Every step of a divorce action is time-consuming and detail oriented. Hypothetically, if someone engages Bryant
Law Center to handle their simple divorce in which there are no minor children and the parties have generally resolved between themselves the division of assets and liabilities, some of the actions which would be required of the dissolution process would include: Initial interview with client and review of client information. Drafting initial documents (Summons, Petition for Dissolution of Marriage, Financial Disclosure Statement, Property Settlement Agreement and Qualified Domestic Relations Order for distribution of pension proceeds). Once the spouse is served with divorce papers, he or she will most likely engage legal counsel. The Respondent [the spouse served with the divorce papers] and his/her attorney will have 20 days to file an Answer. -
The negotiation/-resolution process could now begin in earnest. The attorneys on each side would exchange financial information concerning the marital and non-marital assets and liabilities. It may or may not be necessary to take depositions of the husband and wife, yet it may even be necessary to take the deposition of people outside the marriage such as a doctor or accountant. One of the attorneys will draft a Property Settlement Agreement which will be reviewed by the other side. There will most likely be several meetings and telephone conferences to iron out the parties' differences on who gets what. Hopefully, it will be possible to resolve this matter without the need for several hearings or a full-blown trial. If the parties can agree, the Property Settlement Agreement can be signed by everyone involved and filed with the Court. A date can then be set for the taking of proof at which time the Petitioner appears before the Judge, answers several questions and the Judge enters the Decree of Dissolution.
Provide as Much Information as Possible to Your Attorney. The more information you provide to your attorney, the less you will have to pay him or her to collect that information. If you have access to your tax returns and financial records for the past three to five years, make copies of everything possible and deliver them to your attorney. Otherwise, your attorney will have to draft interrogatories and requests for production of documents and/or take the Respondent's deposition to determine the exact nature your marital assets and liabilities. Deliver copies of important documents to your attorney. If he or she has to copy these things for you, you will probably be charged anywhere from 25 to 50 cents per copy by your attorney to cover his photocopy costs; you may also be billed for a clerk's time spent making these copies. You can probably do this yourself and save money. Remember, you are on the clock every time you call your attorney. You can expect to be billed for phone calls, usually at the rate of 2/10ths of an hour or more for each call. Lawyers are selling you their time and advice. If you need to call or see your attorney, be prepared. Make a list of your questions beforehand to save time.
Kentucky is a No-Fault State In Kentucky, a marriage is considered to be a three-way contract between the husband, the wife and the state. Further, Kentucky is a no fault state, which means that either party can seek a divorce or dissolution of the marriage and the court assesses no blame for the failure of the marriage. Because fault is not a factor in dissolving a marriage, the key issues become: Care, custody and support of the minor children Restoration of non-marital property (things owned before the marriage, inherited by one of the parties or that were a specific gift to one of the parties) Division of marital assets (bank accounts, investments, retirement and pension funds, real estate, vehicles, business interests, personal property, etc.) Assignment of responsibility for the payment of debt
Because Kentucky is a no-fault state. Except in maintenance matters, there is no difference who is right and who is wrong and who caused the divorce. If you can get beyond placing blame for the failure of your marriage, if you can concentrate on doing the next right thing as far as your marriage, if you can remember to consider the welfare of your children, you can save yourself a great deal of money and heartache. Kentucky has a confusing and important exception to the general concept of no fault in dissolution. If you are seeking maintenance, your fault (i.e., adultery, drunkenness or other egregious misconduct) may well be used against you. Only the fault of the party seeking maintenance will be considered. The fault of the party against whom maintenance is sought, on the other hand, will generally not be considered. You may be furious that your spouse has been unfaithful, but is it really in your children's best interest for them to lose their loving relationship with Mom or Dad? Remember, you are divorcing the other parent; the children are not divorcing their parents. Any non-custodial parent has a constitutional right to see his or her children -- even if the child support payments are not being made on time. You must take special care not to draw the children into the middle of any battle you have with your husband or wife. Custody battles are extremely expensive and the damage to the parent/child relationships is sometime irreparable. Before you lunge head-first into such a battle, consider your real motivations and decide whether you are doing this for yourself or the children.
Grounds for Divorce In Kentucky Grounds for divorce are no longer required. Though we may use the word divorce, this is not the legal term for it. You are involved in what is now called dissolution of marriage. The people actually getting the dissolution are called the parties. You will be either the Petitioner (the one who initiates the process by filing a petition seeking dissolution) or the Respondent (the one who is served the papers and has to respond to the petition).
The court must conclude that the marriage is irretrievably damaged. Lawyers are ethically required to help people reconcile, if possible. However, you should have realistic expectations. Is there a reasonable likelihood you and your spouse can or will reconcile? Your lawyer really does care about that issue. The bottom line is this: The court considers most misconduct and blame for the break-up of the marriage to be irrelevant.
Jurisdiction and Venue The first thing which must be decided is where to file your divorce. Lawyers and judges call this jurisdiction and venue. This information is designed to help you decide in which state and county to file your divorce. JURISDICTION For the courts in Kentucky to have the legal power (or jurisdiction) to decide your case, you must have been a resident of Kentucky for at least 180 days (6 months) before you can file for divorce in Kentucky. If you have not lived in Kentucky for 180 days, you may still be entitled to other relief, but you must be candid with the court. VENUE The county you will file your papers in is usually the county where you both have been living, but this is not always the case. One exception to this rule can occur if you or your children have moved out of the marital residence and into a home in a different county. If this has happened, you will need to discuss that special circumstance with your attorney. There are other situations which can make the issue of residency a little more complex. Such a situation would be when one or both of you spend part of your year in Kentucky or you live in this state and your spouse lives in another. The fundamental decision on jurisdiction is critical. Courts cannot decide cases where they lack jurisdiction. No one knows your situation better than you. It is your responsibility to convey jurisdiction and venue information to Bryant
Law Center. Your Spouse's Residency Where your spouse lives will have a bearing on your divorce. If you are the one to file the Petition and you have met the jurisdiction requirements, the action will be filed in the county where you reside. If your spouse lives outside your county, then he/she will probably have to be served in the county of his/her residence. If, on the other hand, your spouse lives outside the Commonwealth of Kentucky, then he/she will have to be served through the Long-Arm Statute via the Kentucky Secretary of State by certified mail. Special rules also apply if your spouse is in the military.
Jurisdiction and Child Custody Disputes Where you and your spouse live will also have a bearing with respect to any child custody issues. Because your situation may be unique, this is a matter you should discuss with Bryant
Law Center.
Mediation One aspect of Family Court is mediation. Divorce litigation rarely helps you to learn cooperation. If the two of you simply cannot agree on property division, child support, child custody, etc., a Family Court Mediator may be the answer. Divorce Mediation encourages both parties to set aside resentment and to work towards a solution best for everyone. Divorce Mediators normally charge by the session and, you, your spouse and your children have everything to gain if it works. Remember, if you have children, you will be involved with the other party for many years to come. Compromise by both parties can result in an amicable resolution that both of you can live with. The benefits to the parties and any children are immeasurable. Successful mediation results in a final divorce agreement which both parties agree that they can live with. Divorce Mediation takes into consideration the needs and interests of everyone including the children. It is usually far less expensive than traditional divorce litigation and much quicker.
Resolution by the Parties Before you file for divorce, sit down and make a list of what you absolutely must have out of this divorce, a list of what you really want and a list of what you are willing to offer toward a resolution. This wish list is important for you as well as your attorney. If you walk into this situation with a clear idea of your wants and needs, you will be better able to negotiate. If you and your spouse are able to communicate about the issues, sit down and talk honestly about your wants and needs. The more the two of you are able to settle among yourselves at this stage, the less you will have to pay your attorney to fight it out with the other attorney. Neither mediation nor self-representation is in order if there is domestic violence or raging going on. Do not ask for trauma by negotiating with an abuser. Kentucky law specifically provides you are not required to mediate with an abuser.
The Truth About Divorce Remember, divorce is rarely a win – win situation. Focus on getting the best resolution possible, remember to protect yourself, don't forget to consider your children's genuine best interest and get on with your life. Bryant
Law Center has represented many, many people who were miserable in their marriages for years. The divorces were generally unpleasant for everyone involved, but there is a light at the end of the tunnel.
Your attorney is probably not a licensed therapist. If you suspect that you would benefit from professional counseling to get you through this stage, ask your friends and family for recommendations. Your attorney may also be able to suggest someone who has experience and expertise in the area of divorce counseling. Many people have benefited greatly from professional therapy and/or counseling in this area. Deciding who gets which set of pillowcases is not the primary issue in a divorce. The whole thing boils down to two people reaching an agreement about no longer being married and deciding how best to get on with their lives apart. The Need for Documentation and Proof In a Kentucky Divorce There Is a Need for Vital Personal Information. Your attorney will need to know an astounding amount of personal information about you and your divorce. Be prepared to discuss some extremely personal and possibly intimate details with your attorney. For instance, it may be necessary for your attorney to ask the date of your last marital relations with your spouse in order to determine a separation date. In addition to being totally honest and forthcoming when discussing your situation with your attorney, you need to also be straight-forward with him or her if domestic violence is an issue in your marriage. Some of the documentation you will want to start collecting as you anticipate filing for divorce include: Recent Taxes: Income tax records including estimated tax returns, W-2, 1099 and K-1 forms, payroll stubs and all other evidence of income since the filing of your last tax return. Income Tax Returns: Personal, corporate, partnership, joint venture or other income tax returns, both state and federal, including W-2, 1099 and K-1 forms in your possession or control from the inception of marriage. Personal Property Tax Returns filed in this state or elsewhere at any time throughout the marriage. Banking Information: Collate all monthly bank statements, passbooks, check stubs or registers, deposit slips, canceled checks and bank charge notices on personal and business accounts, whether it be from certificates of deposit, money management and retirement accounts in your possession or control from banks, savings and loan institutions, credit unions or other institutions which have been or are maintained at any time for or by you, individually, jointly or as a trustee or guardian and which you sign or have had any legal or equitable interest. Financial Statements submitted to banks, lending institutions or any persons or entities which were prepared by or on your behalf at any time during the last five years. Loan Applications and statements of loan accounts for all loans for which you applied, whether approved or not, in the past five years. Broker's Statements: All statements of accounts from securities, commodity dealers and mutual funds you maintained and received during the marriage that you held individually, jointly or as a trustee or guardian. Stocks, Bonds, and Mutual Funds: Certificates held individually, jointly or as a trustee or guardian including any stock brokerage accounts and statements owned during the marriage. Stock Options: All records pertaining to stock options (exercised or not) held in any corporation or other entity. Pension, Profit Sharing, Deferred Compensation Agreements and Retirement Plans or any other kind of plan owned by you or by any corporation in which you are or have been participant during the marriage. Wills and Trust Agreements including inter vivos trusts (those made while the parties are living) executed by you or in which you have present or contingent interest, or in which you are named a beneficiary, trustee, executor or guardian, and from which benefits have been received, are being received or will be received, that are or were in existence during the past five years, including all records of declaration of a trust and minute books for all trusts to which you are a party. This also includes the certificates, if any, indicating such interest and copies of all statements, receipts, disbursements, investments and other transactions. Life Insurance: Certificates of life insurance (including any disability insurance currently in existence) insuring your life or the life of any other person in which you are named as either primary or contingent beneficiary. General Insurance: Insurance policies including but not limited to annuities, health, accident, casualty, motor vehicles of any kind, property liability or contents insurance in which you are or have been the named insured for the last three years. Outstanding Debts: Documents reflecting all debts (secured or unsecured) owed to you or by you including personal loans and lawsuits now pending or previously filed in court. These documents should show the name of the debtor and/or creditors, the date each debt was incurred, the total amount and the unpaid balance. Accounts Payable and Receivable: Ledgers in your possession and control, together with all accounts and journals that are personal or business related. Cash Receipt Book: Evidence of budgets, cash projections and other financial documents in your possession. This applies to all items that existed at any time throughout the marriage. -
Real Estate Documents: All deeds, closing statements, tax bills, appraisals, mortgages, security agreements, leases and other evidence (including monthly payments and present principal and interest balances) of any type of interest or ownership. Whether as owner, co-owner, fiduciary, trust beneficiary (vested or contingent), partner, limited partner, shareholder, joint venture, mortgagee, developer, manager or otherwise, you or your spouse's property investments are relevant. This should be put together with evidence of all contributions, in cash or otherwise, made by you or on your behalf, toward the acquisition of such real estate during the marriage or afterward. Sale and Option Agreements on any real estate owned by you individually, through another person or entity, jointly or as trustee or guardian. Personal Property: Documents, invoices, contracts and appraisals on all personal property, including furniture, fixtures, furnishings, equipment, antiques and any type of collections owned by you individually, jointly, as trustee or guardian or through any other person or entity during the term of the marriage. Motor Vehicles: Purchase orders, contracts, financing agreements, invoices, appraisals, lease agreements, registrations, payment books and titles to all motor vehicles owned by you, individually or jointly, at any time during the last five years. Vehicles include airplanes, boats, automobiles or any other type of motor vehicle. Corporate Interests: All records indicating any kind of personal interest in any corporation (foreign or domestic) or any other entities not evidenced by certificates or other instruments. Partnership and Joint Venture Agreements to which you have been a party during the marriage. Employment Records during the term of the marriage showing evidence of wages, salaries, bonuses, commissions, raises, promotions, expense accounts and other benefits or deductions of any kind that were, are or may be paid, available, credited or withheld for any purpose by any individual or entity to which you were, are or may become entitled to in the future. Fringe Benefits: All records serving as evidence of any benefits available to you from any business entity in which you have legal or equitable ownership interests. This includes auto, travel, entertainment, educational and personal living expenses. Employment Contracts, including a list describing any oral contracts, under which you are performing services and/or rendering merchandise or materials, or under which someone is indebted to you for services and/or merchandise or materials already furnished, during the past three years. Business Records: If you are self-employed, a partner or own more than 10 percent of the outstanding capital stock of any corporation, the records of that business will be important to your case. Charge Accounts controlled or authorized for your personal or business use. This should include all statements and receipts you received in connection with the use of such charge accounts together with a list of those businesses for which you are or have been authorized to charge items to another person's account during marriage. Membership Cards or documents together with all monthly statements identifying participation rights in any country, key or private clubs, associations or fraternal organizations during the marriage. Judgments and pleadings to which you have been a party, either as plaintiff or defendant, during marriage. Gifts: All records pertaining to gifts of any kind made to you or from you to any person or entity. This should be together with all records in connection with the transfer of personal property, by sale, gift or otherwise, during the marriage. Charitable Contributions: Receipts, canceled checks or tangible evidence of charitable donations you made. Medical Bills: Prescriptions, evaluation reports or diagnosis for psychiatric treatment received during the last five years. Telephone and Long Distance Charges received in the form of monthly telephone statements for numbers that have been in your name or the name of any corporation, partnership or other entity in which you have been a major shareholder, officer or director for the past three years. Tapes and Photographs: All written memorandums, reports and photographs submitted to you or your attorney by any other person and all tape recordings and other evidence prepared from recordings made in connection with any wiretapping or other electronic surveillance conducted by you or others on your behalf. Inventory of Safe Deposit Boxes of husband and/or wife. Financial Disclosure Statement: A completed sworn declaration on the form your attorney gives you (to be filed in Court).
DISCOVERY A Guide to Understanding the Legal Discovery Process In a divorce (or dissolution action), each spouse is entitled to full disclosure of information from the other about the case. The legal procedure for obtaining that information is called discovery.
Attorneys for both sides have the right to ask each of you very pointed, sometimes detailed personal questions about you, your marriage, your relationships, your children and your finances. The law requires honest responses to such questions, if they relate to the dissolution of the marriage, custody of your children, dissipation of marital assets, etc. If a party refuses to respond to such discovery attempts, the court may issue an order compelling you to do so, with the possibility of being held in contempt of court and also possible financial sanctions. Discovery can be a simple, speedy process or one consuming a great deal of time, energy and money. Discovery takes place in several different forms. The most common are: Informal Discovery - The best approach. A voluntary development of information by making photocopies.
Interrogatories - A list of questions known as interrogatories, requiring formal written answers to each question may be sent by one side to the other. The responding party has 30 days within which to respond to these questions.
Requests for Production - One party may obtain documents from the other by serving Requests for Production. In other words, we ask the other side to provide us with copies of important documents. As with interrogatories, the responding party has 30 days within which to tender an answer
Requests for Admission - Like Requests for Production and Interrogatories, these are merely questions the other side must answer. However, if it is later proven the responding party lies when asked to admit the truth of an assertion, there are severe penalties that can be imposed by the Court.
Depositions - In a deposition, the spouses and other persons, including experts, may be required to answer questions under oath in a lawyer's office while a court reporter takes down what is said and then prepares a transcript. The testimony may instead be videotaped. Occasionally, it is transcribed by a court reporter and videotaped as well. Testimony at deposition is very much like testifying in court, except there is no judge present. Deposition testimony is given under oath, just as if the examination were being conducted in the courtroom.
DEPOSITION TESTIMONY Since responses to Interrogatories, Requests for Production and Requests for Admission are all formal, in writing and prepared by your attorney with your assistance, it is important that you understand the process and expectations of deposition testimony. You have the right to be present at your spouse’s deposition and should plan to be there, unless your attorney advises that it would be counterproductive. You do NOT have the right to speak during your spouse’s deposition. If your spouse lies during his/her deposition, do not interject or make any noticeable objections, there will be later opportunities to discredit that testimony. When the time comes to give your deposition, we encourage our clients to: Ask your attorney before the deposition what sort of questions to expect. Tell the truth. You will be sworn in and under oath. Don’t guess about an answer. If you don’t know something or honestly can’t remember, say so! Answer the question and then shut up. The old adage is, “If they ask you what time it is, don’t tell them how to build a clock!” Try to use Yes and No answers whenever possible. Don’t volunteer information. Telling the other side more than they ask for may prove damaging to your case. Arrive a few minutes early. You will probably be nervous about this experience. There’s no need to get off to a bad start because you couldn’t find a parking place. Better to be 5 or 10 minutes early and have a chance to relax before the deposition starts. Dress as if you were going to court or church. This means subdued clothing, makeup and grooming. Try to wear something comfortable as you may be sitting for quite a while. Tell the truth! We can’t emphasize this enough. Make sure you understand the question before you try to answer. Try to wait a second or two before you start to answer. This has several advantages. It permits the examining attorney an opportunity the chance to finish his/her question; it gives your attorney an opportunity to object if he/she chooses to do so; and it gives you a second to collect your thoughts and make sure you understand the question. There are no advantages to blurting out an answer that has not be thought through. Opposing counsel may attempt to provoke you by asking inflammatory questions. Do not allow such behavior to agitate you. Give your attorney an opportunity to object and instruct you not to answer such questions. Above all, do not get angry during the deposition as a seething outburst by you will doubtlessly be used against you by the other side. Answer the question only and then stop talking. Again, we can’t emphasize this enough. Answer the question you’re asked and only the question you’re asked. Yes or No is often good enough. If you don’t understand the question, say so. No one can honestly answer a question he or she doesn’t understand. If the question isn’t clear, it’s a bad question and they need to restate the question in a different way. -
Be courteous and pleasant but not chummy with the other lawyer. Avoid sarcastic or argumentative responses. Don’t chew gum and don’t make jokes. Know the facts before your deposition. Spend some time with your attorney beforehand talking about the facts, your claims and your situation. Ask your attorney if you have any questions which concern you about custody, visitation, domestic violence, child support, maintenance, fault, attorney fees, division of marital property or debts. If your attorney objects to a question, DON’T ANSWER IT. Your attorney may instruct you not to answer a question. Other times, he or she may state an objection and direct you to answer the question anyway. Don’t be concerned. This is how we preserve a legal question. Talk directly to the attorney examining you. Try to relax and speak clearly. One more time: Listen to the question. Make sure you understand the question before responding. Do not volunteer information. Answer truthfully and then stop talking.
Property division Property Settlements in a Divorce are normally settled with each side getting half of the divorce assets and one half of the debts. However fair does not always mean that each side gets half and other percentages are allowed. It is seen as if the parties were in a business partnership. Each person may have had premarital property or obtained non-marital assets. The property that you had before the marriage should be kept by you when you leave the marriage. Non-marital property is property that you acquired before marriage or during the marriage but that you didn't get from the efforts of working together. This may be a gift from your parents, it may be inherited from relatives, or, it may come from other sources. Normally any property that was acquired during the marriage is marital property. This includes retirement benefits that are often overlooked.
Non-Marital Property Non-Marital Property in a Kentucky Divorce The law in Kentucky presumes that all the property that two people who are married own is their marital property, that is, both own the whole. Legal title is not determinative. The law will allow you or your spouse to attempt to overcome this presumption. The method we use to do this is commonly called tracing. In order to succeed at getting property reclassified as your non-marital property, you must be prepared to show the court: That you owned the property before you got married to your present spouse; That the property was a gift to you individually from someone other than your spouse during the marriage; That you inherited the property before or during the marriage; That the property was bought with money from the sale or transfer of property described in (1), (2) or (3) above; or That the property was excluded by a valid legal argument.
Examples of non-marital property include cars, boats, motorcycles, houses, real estate, cabins, farms, bank accounts, stocks, certificates of deposit and businesses owned by you or in which you had an interest before your marriage. The court must assign non-marital property before proceeding with the balance of the case. Old titles to your car, credit card receipts, cancelled checks, deeds, wills, and similar documents are what are needed if your attorney is going to trace property for you. Not having these documents does not mean you will not be able to get your property; it may just make it more difficult. Tracing can get really tricky when you had property of some kind before you got married and then sold the property and mixed the money you got from that sale with money you earned during the marriage to buy something else. With proper documentation, your lawyer may be able to get the value of your non-marital contribution to the purchase of the property back for you. This scenario frequently happens when two people sell their respective homes they lived in before the marriage and buy a new home. Our courts have been faced with this problem so many times that the Supreme Court, in the case of Brandenburg v. Brandenburg, developed a formula for determining the marital and non-marital interest in the home(s). This formula is now used almost exclusively across the state.
IMPORTANCE OF PREPARING AN INVENTORY OF NON-MARITAL PROPERTY Completion of a Non-Marital Inventory is extremely important. This is your opportunity to stake a claim on all the things you owned before your marriage and that were given to you as gifts as well as property inherited by you and bought with money you obtained through any of the above. Remember, however, that many of the items you claim to be non-marital will require proof that you obtained them before the marriage, as a gift exclusively to you, as an inheritance or purchased with funds from one of those sources. For example, if you inherited your father's farm three years ago (before or after your marriage), you may need your father's will to prove it was an inheritance. On the other hand, if your mother gave you a family heirloom such as her mother's china, you will need a letter from your mother or someone else knowledgeable about the circumstances as proof it was a gift to you and you alone, perhaps with the understanding that you would pass it on to your daughter when she married. Finally, as you begin to list the non-marital property you are claiming, you must attempt to give each item a value. The value should take into consideration each item's age and condition. Unfortunately, we cannot translate your sentimental attachment to Aunt Betty's rocking chair into money unless it is a true antique. Its true worth is probably what you could sell it for in a yard sale or auction.
Marital Property Marital Property in a Kentucky Divorce
The law requires the court to divide the marital property in just proportions. In most cases, this will mean equally. The spouse that stayed home and cared for the house and children is usually deemed to have contributed just as much to the marriage and marital assets as the spouse whose name appears on the weekly paycheck. In order for the court to make an equitable division of your marital property, it must first know what constitutes the marital property. Marital property is defined as all of the property (houses, cars, stocks, cash, etc.) which you and your spouse purchased or obtained during your marriage. It is very important that you list all of the property of which you are aware or even suspect exists.
INVENTORY OF MARITAL PROPERTY Your attorney can't possibly know about every single piece of furniture, bank account, CD and IRA you and your spouse have acquired during the course of your marriage unless you tell them. You need to make certain that all of your property is disclosed to your attorney and the other side. Property settlements can be later revised when you fail to disclose any asset. By filing a financial disclosure statement you show to the judge and the other side all of your property and debts. If the property was properly and fully disclosed then the other side can not later claim that the property settlement was fraudulent because of an asset they did not know about it. It is expensive and time-consuming to return to the court after the divorce to attempt to get the court to divide property that was forgotten the first time around. When you choose an attorney you may need an attorney that is not just part psychologist but also part accountant, auditor and detective in uncovering assets that can be hidden in plain sight. The best mindset to have in this process is, If I don't list it, I'll lose it!
Fair Market Values Used personal property has far more value to the person in possession of it than its value at an auction, in an appraisal or assigned by the court. The court must use fair market value (FMV), or what a willing buyer would give a willing seller. It is very close to the value at an auction or yard sale. You and your spouse will always do well to divide your marital possessions and decide ultimate ownership of personal property, especially items like used furniture, appliances, TVs and stereos. Such property must be appraised if there is no agreement, and this expense is very real. It is not unusual for parties to be dissatisfied with the values assigned by court-appointed appraisers. Enter the FMV in your column if you are to get the item; enter the FMV in your spouse's column if he/she is to get the property. Must Haves You may have to decide if you are willing to pay lawyers' fees to fight for a piece of property. If you and your spouse can agree on a comprehensive list of tangible personal property but seem stalled on a method to ascertain equitable distribution, you might want to consider the Personal Auction technique. Flip a coin to see who goes first and then alternate making choices until all the assets are assigned.
Debts in Kentucky Divorce Believe it or not, there is no statute in Kentucky which tells the court how to divide marital debts. Generally, the debt follows the asset. The debt on the automobile goes with whoever gets the automobile. Remaining debts are divided as equally as possible. As you would expect, the spouse with the greater income often ends up with greater debt. A pendente lite (temporary) action to limit credit and debts should be seriously considered. Very simply, if you want or need debts assigned, you must provide the documentation to support your proposed assignments. In some cases, it may be very appropriate for your lawyer to immediately notify creditors about your divorce proceedings. Even if the debts are assigned, there may be important actions possible to ensure their actual payment and your protection.
Income in a Kentucky Divorce Accurate income information is essential in the simplest to the most complex case. The court uses this information to assess everything from the fee for mediation to awards of child support, maintenance and attorney's fees. Keep in mind the importance of collecting all documents which might help you verify your income or that of your spouse.
A WORD ABOUT DIVORCE AND TAXES One extremely important and revealing source of financial information used in marriage dissolution is tax returns. In more complex divorces, tax issues can play a major role in the resolution of the case. The following general rules are intended to alert you to issues and provide you with general information. Before you sign or take any actions with respect to your federal or state income tax returns, review your situation with your tax adviser. If both you and your spouse sign a joint income tax return, each of you can be held responsible for all of the taxes due. If you are separated from your spouse, do not sign or file a joint return without first clearing it with your attorney. If you are having trouble securing past joint tax returns, you may get them directly from the Internal Revenue Service by completing IRS Form 4506. You may officially notify the IRS that you have changed your mailing address from the address used on your last tax return by filing IRS Form 8822. You should not do this without consulting your tax adviser, as there may be circumstances under which it may not be appropriate. At the time of this writing, spousal support, or alimony, is taxable to the recipient spouse and deductible from the income of the payer spouse if all IRS requirements are met. However, you and your spouse may elect not to make spousal support or alimony taxable. -
There are some very technical requirements imposed by the IRS with respect to deductibility of spousal support or alimony. Your attorney or accountant can help you understand these rules. Child support payments are not deductible from the income of the spouse paying nor are they taxable to the recipient spouse. Generally, the custodial parent will be entitled to claim the dependency exemption on his or her income tax return. The custodial parent (the parent who has custody) may execute IRS Form 8332, releasing the dependency exemption to the non-custodial parent. Some states will determine who gets the dependency exemption and require the other spouse to sign a waiver. Generally, there is no tax gain or loss recognized as a result of the division of property between spouses upon divorce. Thus there is no tax incurred by dividing the property. It is important to know the basis of the property that you receive in the division of assets. This basis is generally the cost of acquiring a capital asset. If the asset has appreciated, the person who receives that asset will be responsible for tax on the appreciation when the asset is sold. When you and your spouse sell your jointly owned residence, you will each be
responsible for reporting half of any capital gain (the profit resulting from the sale of capital investments). To defer the tax, each spouse must purchase a new residence within two years. The new residence must cost at least half the sale price of the old. If you or your spouse are over age 55, or nearly 55, you should be alert to the once-in-a-lifetime exclusion of $125,000 of gain on the sale of a residence. If you meet the criteria and sold the residence while married, only one exclusion is permitted. If you terminate the marital status before the sale, you may both be entitled to an exclusion. Generally, fees incurred for the production of income, such as obtaining spousal support or alimony, are deductible. IRC 212 fees for tax advice are also deductible. Fees incurred defending against paying alimony are not deductible. If your spouse pays your fees, you may not take the deduction. A person qualifies as head of the household for income tax purposes if he or she provides more than half the costs of a home for him or herself and a child or other dependent.
Expenses in a Kentucky Divorce Once again, it is very important that you be thorough when dealing with assessing your projected expenses. Not only will it affect the advice your attorney gives you, but it will also play a key role in the issue of Maintenance. Expenses are not debts. Debts are treated separately in a Kentucky divorce. Expenses are what you actually spend on the basics such as food, clothing, shelter, insurance, medical care and other essentials. The best place to obtain this information is from your checkbook register, credit card statements and bank statements. This may be the first time you have really sat down and put these numbers together. We understand this and therefore encourage you to take your time and be thorough. Don't forget to keep track of the cash you spend for things like parking, newspapers, cigarettes or even ice cream cones.
When your divorce is final What happens now? The legal and effective date of your divorce is the date your Decree was entered by the Court. Your attorney has no doubt provided you with a copy of your Decree of Dissolution, as entered by the Court. You should have also received a copy of your Property Settlement Agreement, which was filed with the Court. These documents should be kept in a safe place, among your other valuable records, for future reference. There are quite a few things you need to attend to now that the divorce action is over. If you were awarded real estate in the property division, a quitclaim deed from your former spouse to you has been drafted, executed and recorded with the County Clerk. A copy of that recorded document will be forwarded to you when it is returned by the Clerk. You are personally responsible to contact all your banks, stock brokers, etc. concerning any changes that need to be accomplished with your accounts, IRAs, CDs, etc. You need to contact your insurance company (including life, household, automobile, fire, casualty and liability insurance providers) to make sure that the coverage and beneficiaries are appropriate pursuant to the Property Settlement Agreement and Decree. We recommend that you draft a new Will promptly to reflect your current status and create or revise any trusts affected by the Property Settlement Agreement and Decree. You should also consider preparing a Durable Power of Attorney at this time. We also suggest that you remove your former spouse's name from any jointly-held accounts awarded to you, such as bank accounts. You need to determine whether the beneficiary named on your retirement account needs to be changed. We recommend you notify the necessary parties, including the Social Security Administration, of your current name. You should obtain a new driver's license and credit cards, especially if your former name has been restored to you. If you are required to cooperate in providing your former spouse with continuation/conversion application forms for health insurance (COBRA), you need to notify your employer immediately of your divorce so your employer can notify the insurance carrier within thirty days of the decree date. You will need to provide your former spouse's current mailing address as well. If you are required to provide health insurance for your minor child or children, you need to provide proof of health insurance We recommend that you consult with an accountant to obtain his/her advice on tax consequences and tax planning. If you are receiving maintenance, remember that spousal support received is considered income for tax purposes. You will need to budget money for the payment of federal and state income taxes. Quarterly estimated tax payments may be required. We strongly advise you to consult with your accountant if you are receiving maintenance payments from your former spouse.
If you are receiving child support payments, that income is not currently considered taxable income by you and does not have to be declared as income on your tax returns. If you or your current formal spouse experience a substantial and continuing change in circumstances, you may be able to petition the court to reconsider your child support payments. This is generally deemed to mean at least a 30 percent permanent increase or decrease in income. It does not include a loss of employment or layoff. If you are paying maintenance or spousal support, you are currently entitled to claim those payments as a deduction. If you are paying child support, remember that those payments are not tax deductible. If you were married for at least ten years prior to your divorce becoming final, you may be eligible for spousal Social Security benefits when you reach age 62, if you do not remarry or for survivor benefits if your former spouse dies. This will not affect your former spouse's benefits nor will it matter if he or she has remarried. Check with your local Social Security office for details and to compare this benefit to your own Social Security entitlement from your own employment.
Common Law Marriages Kentucky does not recognize common law marriages contracted within this state. Neither does Kentucky recognize same-gender marriages (KRS 402.045). Many legal rights issues and problems arise when people have significant others or life partners and live together without a valid marriage.
A common law marriage is legal in a few states and can exist there when the parties agree to be married to each other and hold themselves out within their community as husband and wife without benefit of a state-issued license. In such instances, a common law marriage which is valid in another state will generally be recognized in Kentucky.
Traditionally, unmarried couples have not enjoyed property rights that look exactly like those available to married persons. A statutory scheme called KRS 403, et seq., defines rights and duties for married couples, but there is no such system for unmarried parties. Generally, if there is no agreement, you will need a lawyer to protect your rights. In cohabitation, unlike marriage, there are no automatic incidents of the relationship, including matters about children and property: One unmarried party does not have an automatic right to share in business enterprises, real property or personal property owned or in the possession of the other party. One unmarried party does not have the automatic right to inherit from the other's estate. One unmarried party does not have the right to health insurance coverage on the other's policy (though their children can be covered). One unmarried party is not entitled to make health care decisions on behalf of the other party if incapacitated without a valid Health Care Directive; and so forth.
The child support and custody provisions of KRS 403, et seq. do apply to children of non-married parents, regardless of the parents' marital status. The fact that the parents did not marry does not abate either party's obligation to provide adequate support for their children. Kentucky appellate courts have repeatedly refused to create property rights solely on the basis of unmarried cohabitation, even when the parties' relationship closely resembled marriage. In Glidewell v. Glidewell, 790 S.W.2d 925 (Ky.App. 1990), the Kentucky Court of Appeals held that no property rights arose from a relationship in which the parties held themselves out as husband and wife and filed joint tax returns because none of the states in which the parties lived permitted common-law marriage. In Murphy v. Bowen, 756 S.W.2d 149 (Ky.App. 1988), the same court upheld a trial court's summary judgment against Pearl Murphy, who claimed an interest based solely on evidence of a meretricious relationship. Other states are not nearly so adverse. See Lindemann v. Lindemann, 92 Wash.App. 64, 960 P.2d 966 (1998), appeal dismissed by 137 Wash.2d 1016, 978 P.2d 1099 (1999) (increased value of male cohabitant's business subject to equitable distribution because the partnership was entitled to his labor and efforts during the relationship); Koher v. Morgan, 93 Wash.App. 398, 968 P.2d 920 (1998), appeal dismissed by 137 Wash.2d 1035, 980 P.2d 1281 (1999) (partner used profit from separately owned business and his own income from the business to buy assets; court treated those assets as subject to equitable distribution, using theory that the assets had a community property-like character. Even though Kentucky law does not initially appear to be encouraging, there are a number of very important and successful ways to address the ending of such relationships. A capable lawyer can pursue: Contract claims Partnership claims -- formal and/or informal Quantum Meruit claims Constructive trusts or resulting trusts Various real estate concepts Health care directives
If you believe you have a significant claim (though not married), you may need a competent Family Law attorney to advise you.
Non-Married Parents Children of Unmarried Domestic Partners The child support and custody provisions of KRS 403, et seq. do apply to children of non-married parents, regardless of the parents' marital status. The fact that the parents did not marry does not abate either party's obligation to provide adequate support for their children. However, paternity actions do not generally resolve custody or visitation disputes.
Joint Ventures Property Rights Do you really know what your rights would be if you and your significant other parted ways?
The definition of family has changed dramatically in the last few decades. The American Academy of Matrimonial Lawyers (www.aaml.org) publishes a booklet entitled Making Marriage Last and has even developed a new model for consideration of What is the family and what are the rights? Even so, Kentucky has been pretty harsh or at least it is difficult and complicated to claim your rights in unmarried relationships. Kentucky appellate courts have repeatedly refused to create property rights solely on the basis of unmarried cohabitation, even when the parties' relationship closely resembled marriage. In Glidewell v. Glidewell, 790 S.W.2d 925 (Ky.App. 1990), the Kentucky Court of Appeals held that no property rights arose from a relationship in which the parties held themselves out as husband and wife and filed joint tax returns because none of the states in which the parties lived permitted common-law marriage. A common law marriage is legal in a few states and can exist when the parties agree to be married to each other and hold themselves out within their community as husband and wife without benefit of a state-issued license. In such instances, a common law marriage which may be valid in another state may be recognized in Kentucky. Traditionally, unmarried domestic partners (whether of opposite sexes or of same sex) have not enjoyed property rights that resemble those available to married persons. Kentucky Revised Statute 403, et seq., defines rights and duties for married couples, but there is no such governing law for unmarried parties. Generally, if there is no agreement, you will need a lawyer to protect your rights. In cohabitation situations, unlike marriage, there are no automatic incidents of the relationship, including matters about children and property. For instance: One unmarried party does not have an automatic right to share in business enterprises, real property or personal property owned or in the possession of the other party; One unmarried party does not have the automatic right to inherit from the other's estate; One unmarried party does not have the right to health insurance coverage on the other's policy (though their children can be covered); One unmarried party is not entitled to make health care decisions on behalf of the other party if incapacitated without a valid Health Care Directive; and so forth.
In Murphy v. Bowen, 756 S.W.2d 149 (Ky.App. 1988), the Kentucky Court of Appeals upheld a trial court's summary judgment [meaning no facts need to be proven] against an alleged common-law wife, who claimed an interest based solely on evidence of a meretricious relationship.
Even though Kentucky law does not initially appear to be encouraging, there are a number of very important and successful ways to address the ending of such relationships. A capable lawyer can pursue: Contract claims -- written and/or quasi Partnership claims -- formal and/or informal Quantum Meruit claims Constructive trusts or resulting trusts Various real estate concepts Health care directives
Partnerships Domestic Partnership Agreements Unmarried parties who acquire real estate or personal property together certainly have the right to enter into contracts setting forth their respective interests. Likewise, there is nothing to prevent unmarried parties who have business relationships together from entering into business agreements to govern the operation of those enterprises. The fact that the parties live together is not essential to the validity of such agreements, unless there is over reaching. The best way to ensure agreements are enforceable is to have competent lawyers draft the agreements. If you do it on your own, consider videotaping the mutual signing of the agreement.
Cohabitation Agreements It is possible for unmarried parties to enter into a binding agreement similar to a prenuptial agreement setting forth the waiver of future claims to property or even support. In many states (including Kentucky), unmarried domestic partners may enter into an agreement that creates property or support rights which are not based solely on each party's direct financial contribution to a specific asset. If one party makes a significant financial contribution to an asset such as a house while the other party's contribution is not financial (such as being a homemaker), they may make an agreement that creates each party's respective rights and duties. It was this latter type of agreement that courts traditionally refused to enforce because it was thought to promote prostitution. Things changed in 1976 when the California Supreme Court decided Marvin v. Marvin, (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106]. In that case, the court decided unmarried cohabitants could enter into valid contracts to share property or pay support in the event the relationship came to an end. Since then, at least 37 states and the District of Columbia have recognized express cohabitation agreements as valid, enforceable contracts. Today, parties who could marry but who choose to live together without marrying and same-sex cohabitants (who do not have the option of a legal marriage) should consider entering into a written agreement prepared by an attorney knowledgeable about such matters which sets out in detail the parties' respective rights and duties on the matters of property (real or personal) and support. Such an agreement should cover all of the parties' property, including property owned before the relationship began, as well as property accumulated by either party thereafter (either separately or jointly). It is recommended to especially specify who gets to keep what in the event of a breakup. The parties' agreement should spell out how they will divide day-to-day costs for food, utilities, laundry, housing, etc. The parties may opt to simply state in their agreement that, if they separate, each of them will have the right to take immediate possession of their respective separate property and that all jointly-owned property will be divided equally. If there is property owned jointly by the parties but not equally, the agreement should specify a method for dividing it.
Including a dispute resolution method such as mediation or arbitration is suggested, in which case the parties would include their agreement to resort to qualified mediator or arbitrator to negotiate a settlement of any disagreements about the disposition of property.
Oral Agreements Are Not Recommended While an oral agreement between unmarried domestic partners may be valid and enforceable, litigating such claims is often difficult and expensive. Oral agreements are usually difficult to prove or disprove and offer poor protection to the parties. As the old adage goes, Oral agreements are not worth the paper they are written on.
When One Partner Dies If one person of a married couple dies, the surviving spouse has certain specific legal rights which may be enforced against the deceased's estate. That is not true for unmarried domestic partners. In such cases, unless there is a valid will or other instrument conveying ownership, the surviving partner may be left without a home, car, investments, real and/or personal property. It is strongly recommended that unmarried domestic partners consult with an attorney to discuss the making of wills, the designation of retirement plan and insurance beneficiaries and other mechanisms for providing for each other in the event of one party's death. The law of Kentucky will not assure an unmarried domestic partner receives a share of the deceased partner's assets, as it does with married couples. Any written domestic partnership agreement prepared should address this issue and specifically address other potential claimants' rights in the event of death. The other side of this coin is that such an agreement can also ensure that the surviving domestic partner's claims against the deceased partner's estate are limited or a party's children are protected.
Health Care Directives and Living Wills An unmarried domestic partner does not have the legal right to make any health care decision in the event the other partner is incapacitated and unable to express his/her wishes with regard to medical treatment. However, through a Health Care Directive and a Living Will, either party can make known his or her choices in the event of a catastrophic illness or condition and, further, appoint an individual such as his/her domestic partner with the authority to make such decisions in such an event. Such choices can include the use or restriction of artificial respiration and the administration or restriction of life-prolonging water and other sustenance or drugs intended to abate the patient's pain and suffering.
Durable Powers of Attorney A durable power of attorney for financial matters can specifically provide for a party's right to handle matters on behalf of the other partner under express circumstances such as unavailability or complete mental/physical incapacity. In other words, if one partner becomes ill or injured to the extent he/she cannot communicate or make decisions for himself/herself and the sick or injured partner had previously appointed the other party with a Durable Power of Attorney, that party could be permitted to make health care decisions, write checks to pay bills, dispose of real and/or personal property assets and otherwise act on behalf of the sick or injured partner.
Gay & Lesbian Couples Kentucky does not recognize common law marriages contracted within this state. Neither does Kentucky recognize same-gender marriages (KRS 402.045). Many legal rights issues and problems arise when people have significant others or life partners and live together without a legal marriage. Traditionally, unmarried domestic partners (whether of opposite sexes or of same sex) have not enjoyed property rights that resemble those available to married persons. Kentucky Revised Statute 403, et seq., defines rights and duties for married couples, but there is no such governing law for unmarried parties. Generally, if there is no agreement, you will need a lawyer to protect your rights.
CHILDREN OF DIVORCE If any children are involved in your divorce, the process described in the previously automatically becomes more complicated. First, assuming all issues are resolved without difficulty, there is a 60-day waiting period before the Decree can be entered. Secondly, if there are any minor children, the parties must resolve all issues of: If the parties cannot amicably resolve the issues involving the children, then the Court must make these decisions. This, of course, is very costly and time-consuming. Child Custody is determined by what is in the best interests of the child. Child Custody cases are very emotional and often have allegations of abuse in bitter battles over who will have control over the children. These divorces require cool heads on the part of the attorney representing you. What is best for the child is normally that it be in the home that is the best model for it of what a good mother and father are. The child needs both parents in a loving relationship that provides the child with a good model of what a successful family is. Common elements that will persuade a judge include The stability of the parties their jobs and homes The emotional and mental status of the parties In adolescent children the wishes of the child may be a factor Whether the child has had a long time being with one parent and is used to that home Psychological evaluations of the parties How the child behaves and reacts in one home or another Changes in the child's environment cause anxiety confusion and result in a lack of trust and security. Stability is desirable. Whether or not the parent is able to care for himself/herself
Often what is involved in these battles is who is better able to afford the fight and who has the most determination to win at all costs. Child Custody battles often involve thousands of dollars and months or years of wearing down the other side in bitter and hotly contested fights.
Alimony can still be an issue in divorces today. Kentucky law allows alimony however it normally is not granted in short term marriages. In order to win alimony a person must show that the other party has the income to pay it over and above his reasonable budget for living expenses. Further you have to prove that the party requesting needs the income and that you are unable to exist without this support. Also you should show that you are making reasonable attempts to limit your expenses and to become self-sufficient. Alimony is tax deductible to the person paying and it is a taxable item to the person getting it. Also if you get alimony it may be that you are not able to receive AFDC, SSI or other benefits. Divorces are sometimes bitter and sometimes it is impossible to divorce as friends and to reasonably split property. In such cases you need an attorney to get these benefits for you. In other cases it may be unreasonable to award alimony. However, if alimony is awarded attorney fees are also often awarded. Child Support for your children is determined normally by the Child Support Guideline chart but parties can ignore the amount in the chart and they can agree upon a different amount if they choose to do so in a divorce agreement and the amount is reasonable. If they do not agree upon an amount the judge must award child support by the chart unless the judge can show that there were strong reasons not to use the chart. These reasons may include a disabled child with higher support needs. In most cases it is important to just get support in place and started. Support can always be increased later. Child support is not tax deductible to the person paying support. Alimony is tax deductible. It can be a wise tax reason to give the wife a higher child support amount and to label it as alimony if the husband earns more and the parties can work together to reduce their tax bill.
Parents that do not get visitation pay child support very poorly. Parents often retaliate in divorces and refuse to allow the other parent visitation however you are required to pay child support even if you do not have visitation. Failing to pay child support for over 6 months or falling over 1000 dollars behind in support is a class D felony and is punished by 5 years in prison in Kentucky. Being prosecuted for the failure to pay support is serious. The failure to pay support is also punished for any amount by the court as contempt and as a misdemeanor and attorney fees at $150 per hour can be added to the punishment. Property may be attached and sold and income taxes refunds can be lost. Child Support and Alimony is not able to be included in bankrupt and it is the only debt that can place you in jail. Competent, honest, dedicated divorce attorneys will almost always eventually succeed against the scheming, aggressive methods of the classic shark divorce attorneys. The divorce lawyer may ultimately win the case but the divorce client may be financially and emotionally drained after spending years embroiled in a bitter divorce. Having a divorce judge ultimately declare that you are right may still leave you with little satisfaction for the time, energy, and money it took. Even if you win there may be years of bitter feelings after the divorce. In a divorce everyone loses especially where children are involved. Cooperation without the tension and remaining bitterness is better for everyone. How can everyone be the winner in a divorce? The goal is to set aside your anger, hurt, and resentment. The Kentucky Child Support Guidelines states that child support is to be calculated on gross income. To calculate Child Support use our Child Support Chart and Worksheet on this site. Go to those pages also and book mark this site. Gross income is any income from any source. Reasonable business expenses are deductions from income for self employed persons. SSI or welfare payments are included as income. Income will be imputed even if a person is unemployed. Imputed income is based on what it would be if the person were normally working. If a person voluntarily quits, they pay child support on what he would have earned. The child's health insurance and any child support for other children or alimony is subtracted from the calculation. If income is off the chart it is estimated based on a mathematical estimation of what the chart would be at that income level. The Court shall order Health Insurance to be paid but it is a deduction in the calculation. Unpaid medical expenses are paid in proportion to income. Day Care costs are covered in the calculation as a part of child support costs. Reasons for deviation from the chart include the child's needs including education, medical expenses, the child's special needs, job training, parental education and disability. There is a catchall provision for deviation from the chart but a judge must issue a written finding for any deviation. No deduction is made for support for present family members however court ordered alimony and child support is deductible. No new increase or decrease in child support is allowed unless there is a material change in circumstances. A 15% increase in support is a material change in circumstances and less than a 15% change is not. People that claim you can not get blood from a stone don't understand child support increases and collection. If any income or asset exists it can be taken away by child support. Kentucky Child Support orders can even attach Social Security. Less than 25% receive child support on time and over 87% of child support is owed to women. Federal Government Child Support has dropped. Title IV-D and other child support collection programs were developed so child support Collections would at least pay for child support Increase programs. In 2000 we collected 8.9 billion in child support Increase. But it costs government 9.4 billion to collect 8.9 billion in child support. The federal child support program is ineffective. Child Support programs are under staffed and under funded. In 1994 over 34 billion in child support was owed to AFDC in overdue child support and uncollected. If you are locating child support obligors you need information. Name, any alias, birthdate, social security number, most recent address, past addresses, work history, if self employed who the clients are, phone numbers, drivers license number, past wives, other mothers, family members, creditors, banks, clubs, hobbies, real estate holdings, insurance companies, retirement and other benefits, social security, military service, voting registration, probation officers, criminal records, these records provide a trail to find the child support obligor.
You can use telephone directories, associations, backward directories, post office, utility company, voter registration, credit reports, VA, criminal, school, driver license and other government records such as IRS and social security to track down and collect. Contact relatives, landlords, fellow employees, employers, hobbies, and neighbors. You can find assets for child support from credit reports, attach wages or personal property including bank accounts or real estate and sell it in any state. You can subpoena records of the debtor and examine him by deposition. You can collect through the IRS and attach tax refunds and even have the IRS collect as a free attorney for you though certain procedures called 1099 and 1098 procedures. AFDC may also collect for you if you collect those benefits. Even Social Security, Military benefits, Unemployment, disability, VA, and other benefits can be attached. Federal Employees can be collected from. There are statutes requiring that federal employees cannot be overdue in payments on a debt. To be overdue in child support can mean dismissal. There is even a procedure for garnishing child support from a federal employee but you must follow it exactly. Licenses can be suspended in some states. If you don't want to collect child support yourself you may want to try to collect it through your state child support enforcement agency. Each state is required to collect child support through some child support collection agency. In Kentucky the agency is Division of Child Support Enforcement P.O. Box 2150, Frankfort, Ky. 40602 1-800-248-1163. The normal Child Visitation that is awarded involves 2 weeks during the summer, alternate weekends, and alternate holidays. If you are involved in a divorce it is important for you to know that visitation is important to your child. It is a common belief of some women's rights groups, social workers, and the gay community that a single parent can raise children as well as both parents. But it is established that a normal family environment is better. If a family does divorce visitation is very important to the child. If a parent fails to allow visitation the child may see the custodial parent as being unfair to the other parent. Denying visitation often backfires against parents in their relationships with their own children. Fathers that do not get visitation pay child support poorly. Children that see their fathers divorcing, not visiting, and not paying child support are more likely to become fathers and mothers that abandon children. Such children are less likely to have careers, go to college, have successful marriages, and are more likely to become delinquent. These cycles repeat in families often for generations. In some extreme cases child visitation simply cannot occur normally. It may be that a case of abuse exists or that a parent is in prison or there may be other very good reasons for putting reasonable limits upon visitation and when and how it occurs. However, it is rare where a child shouldn't have any visitation with the parent. Visitation is always in the child's best interest. Even if a parent is in prison or is in a mental institution the child should know that they have a parent and see that parent to understand that they have roots. If the child has a poor parent. they can come to understand that their parent is mentally ill or that their parent has poor mental programming that keeps their parent from being all that the parent needs to be. The past does not have to be the future and seeing that parent means that the child can then make a choice to be better than their parents were. Robbing a child of all visitations is abuse itself.
Domestic Violence If you are being abused you only have one choice. You are required by law to report abuse if it is to your child and you must leave and take your children with you to a position of safety. Whenever there is abuse there is a risk to children. Allowing abuse to continue, means that you may also be prosecuted equally with the abuser and that you may lose your children. Domestic Violence is a psychological problem and you are dealing with a problem that involves both yourself and your spouse. Seek proper help. Domestic Violence does not have to mean the end of the marriage if a person will get proper help and help is available. Social worker Victoria Satir said I have never met a family that I couldn't make happy and functional if the parties were willing. The problem is that parties often aren't willing to change destructive habits and that Kentucky no longer works to keep families together. In publications and in newspapers our Cabinet has often been quoted that is cheaper to encourage divorce than treat the problem. This however, never cures the problem. New marriages are entered into and the problems resurface causing new divorces. If there is abuse you must get help to avoid re-living such relationships. However, approximately half of reported domestic violence cases are false. Domestic violence is often alleged only to gain a tactical advantage in a divorce case or for revenge. By applying for a Domestic Violence Order parties can immediately win custody, support and property without the expense of attorneys or the delay of a divorce. This is not just my opinion, it was the published opinion of the Courier Journal that exposed the abuse of the legal system in Jefferson County where such warrants are used as weapons in divorce matters which estimated that one half of the cases were false. It is difficult to defend Domestic Violence Cases. State law requires that judges must protect the person claiming to be abused by issuing a DVO (Domestic Violence Order) & EPO (Emergency Protection Order) regardless of evidence that may show a person innocent. If convicted you will be treated as a criminal, your name will go into a national criminal database and you will lose many of your rights. Persons that file false domestic violence claims abuse the system and injure victims that have real claims. If accused you need to defend yourself. Put aside your emotions for a minute. If you are in a divorce you need to think for a moment without your emotions. You need to think about relationships differently. You need to think in a pattern that allows you to have good successful relationships that work and that are good for you and your children.
Relationships are either healthy or unhealthy. Forget about whether the other person is tall, good-looking or young enough. Either a relationship nourishes you and allows you to be all that you can be or it doesn't. Either a relationship can be fixed or it can't. If a relationship is over there will be a time of grief and sorrow. Take time for that period. During that time grow as a person so that your next relationship can be much better. Instead of worrying about how you will live without your spouse, instead say to yourself, they are gone so someone better can now be in my life. At the same time understand that the relationship failed because you chose to be in that relationship. You have a life strategy that needs to change and to demand better relationships. As children, we model our parents and the relationships that they have. When we grow up we have many of the same problems and poor strategies they had. However you can break the cycle you can have much better relationships if you change your own programming and you decide to live differently and better. You must decide to be a better model for your children than you parents were. |
