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Ky Family Law Blog

How to reach out to a friend going through a divorce

Divorce is one of those issues where people don’t know what to say, when they know you are going through the process. Sometimes they don’t know how to act or what to do and often what happens is that people retreat and give you “space” and assume if you want to talk about it, you will come to them, but they definitely don’t want to ask about how your divorce is going.

It is important to have a support when you are going through the divorce process, it is a hard process. It is estimated that 6.7% of the U.S. Population suffers from depression and that number goes even higher when you are talking about the context of a divorce. So how can you give your friend space and be for them at the same time?

The easiest thing that you can do is just invite them out for a drink or coffee. Let them know that they don’t have to talk about what is going on and that you aren’t looking for gossip or information relating to their divorce, you just want to go have a drink and listen because you are interested in their life and how they are doing.

However, if you want to really be there for them, then one of the easiest and most effective things that you can do for your friend. INVITE THEM OVER FOR DINNER. It is hard to turn down a hot meal for anyone and if your friend moved out of their home, chances are they are eating out a lot, so a home cooked meal can always be comforting, make you feel like people care about you, and bring some normalcy to a chaotic time in their lives.

Don’t know what to cook, try this roast chicken recipe that is really easy to make as the oven does most of the work and pairs really nice with wine.

 

ROAST CHICKEN

Ingredients

1 roasting chicken (5-6 lbs serves at least 4)

Kosher salt

Freshly ground black pepper

2 bunches of fresh thyme

1 lemon

1 head garlic

2 tablespoons melted butter

1 large yellow onion, thickly sliced

8 carrots cut into 2-inch chunks

1 bulb of fennel

Olive oil

Directions:

1.     Preheat the oven to 425 degrees

2.     Remove the chicken giblets. Rinse the chicken inside and out and pat dry. Liberally salt and pepper the inside of the chicken. Stuff the cavity with a bunch of the thyme, cut the lemon in half and put both inside the chicken, cut the garlic in half and put it all in the chicken. Brush the outside of the chicken with the butter and salt and pepper the outside.

3.     Place the onions, carrots, and fennel in a roasting pan. Put enough olive oil over them so you can toss them with salt, pepper and the remainder of your thyme. Spread around the bottom of the roasting pan and place the chicken on top.

 

Serve it with vegetable or mashed potatoes and just let the conversation flow naturally. You aren’t there to talk about the divorce, you are just there to socialize and enjoy each other’s company. 

By: Jason A. Bowman

Family Law Questions

I often get questions, from all over the country, that can be helpful for people who are looking for quick answers and if they should be seeking legal advice. Always consult a lawyer in your jurisdiction for specific advice:

QUESTION: 

My wife left our state for a supposed vacation recently. When I arrived to join her on vacation, she told me she would not be moving back home and that she wanted a divorce.

Blindsided! We have not yet filed for divorce, but I want to know what rights I have? I do not want my child to be 3,000 miles away and have to go live across the country in the mother’s new state

Answer:

While I am not licensed to practice law in your state, I can give some general guidance on this issue. 

You should immediately consult an attorney in your jurisdiction as the jurisdiction clock is running against you and the more time that you allow to pass, the closer that other state gets to assuming jurisdiction over the issues in your case.

Most states have a residency requirement in order to file for divorce. The timing of this residency requirement varies by state, but usually it is about 180 days. This is the time frame for establishing jurisdiction to get a divorce entered. 

When we are talking about children, jurisdiction is usually established by the Uniform Child Custody Jurisdiction and Enforcement Act that nearly every state has adopted as its own law.

The jurisdiction requirement under that act is that the home state of the child will control jurisdiction. The home state of the child is usually defined as where the child has resided for the past six months. For every day you delay, your wife’s new state may be getting closer to assuming jurisdiction over that issue of the case.

 

Lawyers Best Advice: Plan for Holidays Now!!!

Divorce is always difficult. When the holidays approach, it can become even more difficult. This is especially true if you don’t plan for the fact that you will be going through a divorce during the holidays and you are trying to figure out what to do with the children. We all want the divorce to not affect the children, but since you are in the divorce process, it may not be possible for your children to do everything that they are accustomed to doing around the holidays.  While this holiday season may be important, keep in mind that next year there may be a new schedule, so it is in everyone’s best interest to begin planning now.

 

As September is comes to a close, it is important to keep an eye on the upcoming holidays, including school fall break.  Have you worked out how to divide this time during the holidays and school breaks? If you haven’t, it is important to put that on the top of your list and to attempt to resolve those issues prior to the start of the holidays and school breaks.

Courts really don’t like motions about holiday time that are filed the week before that holiday. They don’t have the time available to determine what is the best interest of the child. Proper planning can help you determine what is in the best interest of your child. The Court’s reasoning is that holidays come at the same time each year, if there is an issue, you should have anticipated it earlier. If you want to make sure that your holidays are taken care of, It is much better to address the issue now and avoid attempting to go to the Court at the last minute. If you are unable to agree, this will give you time to bring the issue before the Court.

The issue is addressing the holiday and break times with the person you are divorcing. The following are some tips to address that issue:

1.  Talk. I know it sounds simple, but have a discussion with your spouse about establishing new holiday traditions now, rather than waiting until the divorce is final. Even if the response you receive is no, or I don’t want to, you attempted to resolve the issue prior to going to Court.

2. Understand that your holiday schedule that you have always followed probably won’t work anymore. His parents Christmas Eve, your parents Christmas afternoon, flip that on odd years. It is a lot to try to cram in to a holiday season. Also, remember we are talking about the children, not you or your family. Think outside the box as far as traditions go. Create your new traditions. Attempt to work through scheduling in a way that makes sense for the children first, then you  and finally your family.  I understand that Grandma is important, but it isn’t about her.

3.  Confirm all plans or agreements in writing.  If there is a dispute down the road, this document may prove invaluable and may resolve the issue quickly.

If you cannot reach an agreement, talk to your attorney, who will help you develop a game plan on how to address this issue. The Court’s goal will be to minimally disrupt the child’s life, so hopefully, your family’s past holiday traditions have provided good memories for the children.    Rather than let the change influence your holidays, take this opportunity and plan ahead for a great holiday season for your family.  If your spouse obstructs your efforts to plan, contact your attorney sooner rather than later so any problems can be addressed in a timely manner.

 

Displacing Divorce Myths Part 1: When does the child decide?

In all my years of practice I have heard from numerous clients the age in Kentucky that children get to choose who they want to live with. I have heard 10, 13, 16 and 17 as ages thrown out there. In my own personal experience, it was 11, when my parents sat me down and told me I got to pick who I wanted to live with. The state of Kentucky says that there isn’t an age that children get to pick who they want to live with. In reality, when they are adults is the only time they actually get to decide anything and in Kentucky that is 18.

 

The preferences of a child is one factor that Courts are allowed to consider, however, the child’s preference may not be that persuasive to the Court depending on your situation. In Kentucky, custody or visitation/parenting time is to be determined in accordance with the child’s best interests.  In determining a child’s best interests, the Court is required to consider all relevant factors. One of the many specific factor listed for the Court’s consideration if “…the wishes of a child as to his custodian.” 

 

 

Most mental health professionals caution against ever putting a child in this situation, from personal experience, I can say that many years later, this is still fresh in my mind. The Courts are reluctant to put a child in a position to voice a choice of one parent over the other.  It may be more appropriate to avoid asking a child directly as to preferences and putting that child in the middle of the parents’ divorce. This will shift the focus ofgathering  information from the child indirectly and from third parties as to a child’s preference and focus truly what is in the best interest of the child.

 

The focus of the Courts should be, if a child has a preference, what is the basis for the preference-is the basis of this preferenceThe issues that commonly arise are: whether the parents are manipulating a child to obtain a desired preference; or whether the child is manipulating the parents to get whatever he or she wants or perceives he or she needs.  In addition, there is the possibility of parental manipulation.  Teenagers are good at leaning towards the parent who will be more liberal in their parental supervision. This results in the teenager using one parent against the other. This isn’t because the teenager doesn’t like a parent, but probably because they are more interested in their friends, school or activities In reality  a child’s preferences may not be in the child’s best interests.  The eventual Court determination may indeed be contrary to any such preference.

Parties to a divorce need to understand that a preference of “well let’s just let the child decide, can be highly problematic. Children should never be empowered to make decisions that their parents cannot or refuse to make. Every case is different so the factors for a family are different as well. If a parent places too much emphasis on one factor (what the child wants) this may not be in the best interests of the child. It may create controversy, create further divides in the family structure and at the end of the day be costly for everyone involved.

 

Tips to Repair Your Relationship with Your Child

Parents get estranged from their children all the time and it is common in divorces. Whether the estrangement was caused by a parent working too much, serving in the military, alienation by the other parent, living in separate states, or other reasons, the best way to repairing this relationship is to start now. You may be scared of possible rejection by the child, but the hardest step to take is the first one. But, the first step is also the most important step and one you need to take now.

Do not wait on the child, you need to take the first step

Lets be honest, as parents, we are all making it up as we are going along. We don’t have a rule book for being a parent. If you don’t have a relationship with your child, then no matter what you accomplish in life, the child will always see you as the parent that wasn’t there. So, the worst thing to do is wait for the child to realize you are there.

Remember at the end of the day your child is a child and you are supposed to be the adult in the situation. You must take the first step, set the good example of how to have a relationship. If you reach out to your child to let them know that you want to spend time with them, and that you care. Chances are this will be the first step in repairing that relationship.

Do not focus on the past, focus on what is going on right now

It is easy to do, you feel like there is lost time and a lot of things you missed, but you can’t undo the past. Focus on your child as they are now and where you would like for them to be in the future, rather than trying to recapture lost time. Ask the child about their current school and teachers. Who is their best friend now, or what activities do they enjoy? Don’t just focus on the good stuff either, ask your child where they are struggling in life or where they need help.

The point is you are focusing on your child. You are asking questions and you are showing interest in their life. Your child will remember that you are taking an interest in them and who they are.

Once you have a schedule, do not vary from that schedule.

Once you have a schedule with your child, it is important that you stick to that schedule. That is your first priority in repairing the relationship. Children often spell love “T-I-M-E”, so if you say that you are going to be there next weekend, you need to be there next weekend and not cancel that time. Chances are, what ever came up for you can wait, your child cannot.  

Do what you need to rebuild that relationship with your children. Chances are you and your child will be better for it and both benefit from the increase in the amount of time that you spend together.

Should I Talk to My Attorney?

Of course you should. This seems like the simple answer, but you would be surprised how many clients chose not to talk to their attorneys. Cooperation and communication with your attorney, is probably one of the most important things you can do in your case. Actually, it is the most critical thing that you can do, otherwise you leave your attorney in the worst position to fight for you.

You will get out of your family law case, almost as much as you put into your family law case. Garbage in – garbage out is a great expression to illustrate this point. If you do not give your attorney your cooperation, you may not get a good result and it may not matter how good of an attorney they are in your community.

What can you do or what can your attorney do to make this process easier?

1. Communication: It is important to talk to your attorney and have them talk to you.

While this does not mean you need to speak with your attorney every day, it is essential that you either communicate by telephone or e-mail about the status of your case every week to two weeks. Frequency of communication varies in every case, but I always attempt to contact a client once in every two week period, even if that is as simple as an e-mail saying we are still waiting for documents or a decision.

Contact obviously picks up during busy segments of your case, especially if there is a hearing approaching, discovery must be completed, or we are talking about settlement.

To make sure you know what is happening in your case, discuss the best way to communicate for you and your attorney up front.

2. Let your attorney know where you are

You have moved out of the house and established your own residence. Then you find that living a separate life is fairly simple and you don’t have to worry about your ex-spouse anymore. This is what you imagine divorce to be like, so you just go on living life and stop paying attention. The problem is that you haven’t told your attorney you have moved on and an even bigger problem YOU ARE STILL (legally) MARRIED!

It is important that if anything changes in your life, your address, your phone number or your e-mail address that you communicate this to your lawyer, so they can communicate with you. Just because your life has settled down doesn’t mean that your case has. There are still trial deadlines, discovery deadlines and other procedural requirements that have to be taken care of and your attorney can’t do it without your help.

Don’t miss a critical deadline, or lose your attorney,  due to fact that you did not update your contact information.

3. Don’t hold your attorney back

An attorney can only offer you good advice, if the attorney has the information available to them to give you that advice. Often clients will not authorize an attorney to conduct discovery, follow through on information because the client wants a quick settlement. Settlement is great and most cases do settle, but agreeing to settle just to get it done is not necessarily the smartest thing.

If this is your position, then you should expect your lawyer to ask that you sign a form that you have been advised you are settling the case against his or her advice.

It is usually better to talk the alternate route and let your attorney do their job and make sure you are protected.

4. Disclosure: Tell your attorney everything!

The worst feeling in the world for an attorney is to be sitting in the Courtroom at your trial and hearing that you transferred $25,000 out of joint checking, or that you were arrested for DUI.

Your attorney is your advocate and your voice in this case. He or she cannot do the job if you do not provide all of the facts about your case, your financial situation, your drug history, information that might effect custody and visitation of the children and any other relevant and requested documents and data. To put it another way, your attorney cannot effectively do their job if you withhold information, even if that information may be harmful to your case or embarrassing for you.

Why is that? An effective family law attorney is like a chess player. They need to know how to use the information in the case, how to advocate for you by highlighting the good points and trying to diminish the bad. If a chess player can only see half the board, even the best chess player is set up to fail.

I try to make sure my clients know what I am looking for when we meet and expand on the information provided to me by my clients. I don’t just take what you provide, say thank you and move on. Many of my clients don’t understand this process, the language of this process or why they have to go through this process.

5. What should your attorney be doing?

Your attorney should make sure that you have the opportunity to communicate, participate and remain in contact with your advocate, so you can be involved in this process. As the client, you should take advantage of the opportunity to use your lawyer.

It is a big waste of money to hire a lawyer because you think you need to and then simply not participate in your case or talk to your attorney. I always try to make sure that the client knows what is going on in their case by going over their expectations of me and my expectations of them.

 

Should You File First?
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It’s actually pretty common for clients to ask this question. The social stigma associated with filing for divorce is that you are the one who wants the divorce or you are picking a fight. However, talk to any experienced divorce attorney and they will tell you unless there is a compelling reason to file immediately, it may be a good idea to take time with your filing and get it right, rather than running immediately to the Courthouse out of fear that your spouse may file first.

So, who should file first? You or your spouse? Let’s take a closer look.

The mentality with filing for divorce is, if you file for divorce first, then you’re the one who wanted it and therefore you’re somehow the bad person in this process. This concerns spouses and make them hesitate to file even when they know that the marriage is over and divorce is inevitable. However, if you file first then you do get to control a portion of the process.

The reality is that the Judge does not care who filed first, or even why the Petition was filed. Kentucky is a “no fault” state, so it does not matter why a person wants to get divorced. However, there are tactical advantages with filing first.

You can determine jurisdiction or the venue.

Most people don’t understand these legal concepts, but think of Jurisdiction and Venue as authority for a Court to make its decision. This is especially important to know if you have a spouse who has a residence in another state or another County.

If your spouse lives in another state and files before you, then that state may have jurisdiction over the issues in your divorce action and you may find yourself traveling to another state for Court hearings. If your spouse lives in another County in Kentucky and files first, then that county could be the proper venue for your case to be heard, even if, as a married couple you lived most of your lives in Jefferson County.

If you want the case to be heard in your County, then you do want to be the person that files first.

Danger to the children is a good reason to file for divorce first in Kentucky

If your children are in physical danger or in immediate danger of abduction, waiting to file is foolish. The family court has the power to make immediate orders regarding the children if their health or safety is in danger. Your divorce lawyer must be aggressive in seeking these child custody orders because if your spouse abducts the children or is a threat to their safety or health, waiting has several dangerous consequences including (a) being forced to file in a foreign jurisdiction to try and get the children back because Kentucky or Jefferson County court lost the power to do so or (b) the family court not taking your allegations seriously because you didn’t seek court intervention immediately after the danger to your children was realized.

Protection of assets

Inevitably I will talk to a few people each year that have had a spouse empty all the bank accounts and put the money in an account only the spouse can access. Usually, the warning signs and red flags are there and even if a potential client has been consulted about this, they decided to wait and do nothing. Suddenly, they realize that they wish they had filed so they don’t have to chase down the money.  If they had filed, then the Court could have issued orders protecting the assets.

If you see the warning signs or the red flags, then you may want to immediately file. If you are waiting on your spouse to file, then there may be little to divide.

You get to present your case first

The one strategic advantage to filing first is, that if you go to trial, you get to present your case first. This can be a strategic advantage because you will have the opportunity to set the stage for the Court and attempt to get the Judge to see the facts through your lens, rather than your spouse’s lens.

This can make the difference especially if there are facts in your case that you are worried that your spouse will attempt to use against you. If this is your fear, you can present those facts to the Judge, if needed, and explain the situation, rather than responding to an allegation made against you.

Should you file?

It is never an easy decision and it shouldn’t be an easy decision. However, if you fear that your children or your assets may be at risk, then you need to take steps to protect them.

Once you are ready to file, it needs to be done within a reasonable period of time. You can contact me to discuss if filing a Petition is right for you and when that should be done.

Seven Common Mistakes After the Decree Has Been Entered

Once the divorce decree has been entered and your client is officially divorced, a lawyer’s job is not done. It is important that we provide our clients with the proper advice for post-decree clean-up and finish the job of separating two lives. This can be difficult for attorneys, as this is not the fun part of litigation. And, it difficult for clients because they either believe that they are done with Court and do not have the burden of the divorce over their heads, or they just want to start living their new life.

However, you and your client will quickly realize a decree does not end the divorce process, only the marriage. There are still steps that need to be taken to follow through with the settlement agreement or the Orders of the Court. The quicker you help your client through these steps, the better you guarantee that things are not forgotten and then have to be addressed months, or even years down, the road.

This list is not exhaustive, but it is some of the most common mistakes made by clients and attorneys once a decree has been entered. Some of these mistakes have the potential of creating litigation down the road.

Mistake #1  - Transfer of Title - Clients are often awarded vehicles or real property and then offered little or no direction on what that means or what needs to happen to effectuate the award in a decree or settlement agreement. If you do not advise your clients on the transfer process, at the time of the sale of the property, they will have to track down their ex-spouse and hope that the ex-spouse willing to cooperate for the sale of property.

Vehicles can be trickier, if you are a title owner, you could potentially be held liable in the event of an auto accident that causes bodily injury or property damage. If you have a client who does not understand that they need to transfer title as soon as possible, your client could be held liable years down the road.

It is important when your client is awarded property, that you execute deeds to effectuate the transfer in addition to the settlement agreement or the divorce decree. Your client needs to have clear title. Ideally, these will all be prepared and ready for execution at the same time. If not, then your settlement agreement and your decree must require each spouse to cooperate to execute all reasonably necessary documents as soon as practicable and specify consequences for the uncooperative spouse. You should also inquire of your register of deeds or county clerk whether you can make your decree “in recordable form.”

Mistake #2  Updating Your Estate Plan – Divorce is also the time to review your estate plan.  Kentucky law revokes “any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise.”  KRS 394.092.  The statute goes on to provide that property that would have passed to the former spouse by will now passes as if the former spouse predeceased the decedent.  Put simply, Kentucky law basically “removes” the former spouse from your will, unless you expressly provide otherwise.

There is a good chance that your client has named their ex-spouse to administer their estate, to receive property, to oversee their funeral or to make important medical decisions. Failure to advise your client that these issues need to be examined could result in their property passing to unintended beneficiaries or could leave your client without a testator for their estate plan.

KRS 394.092 only applies to a last will and testament and may not apply to a medical directive, power of attorney,  or living trusts. It is imperative as attorneys to advise our clients to update their estate plan after the entry of the decree to avoid the potential of litigation concerning your client’s estate.

Mistake #3 – Beneficiaries – After the entry of the decree, clients need to be informed that changing beneficiaries of life insurance, retirement accounts, or other financial accounts should be a priority. A named designated beneficiary is entitled to proceeds from life insurance and retirement accounts, even if such beneficiary is the ex-spouse of the policy or account owner.  Most of these accounts are contracts between the owner of the account and the company itself. There is no statute that prevents the passing of this property to an ex-spouse as there is for wills.

Failing to advise clients to examine beneficiaries could result in the retirement account or other financial account awarded to your client in a divorce suddenly passing to a former spouse because they are still a named beneficiary. In order to assist your clients in changing beneficiaries you may need to provide them a certified copy of their decree. It may not be necessary, but could be helpful if they have limited rights to modify their beneficiary.

Mistake #4 – Explaining Court Orders – It is easy to send a client’s court orders to them and expect the client to understand what the Court is requiring them to do. A majority of clients do not understand what the Court is ordering or how to practically obey the Court order. In order to avoid your client potentially being held in contempt of court, it is important to explain what the Court is requiring of them in plain language that your client will understand.

A good example of confusion that can result with a court order, or agreement, is when there is an order to alternate the tax exemption with Mom having every even year and Dad having every odd year. The issue that can result from this type of language is that we file our odd tax year returns in even years and we file our even tax year returns in odd years. It could help to explain to the client which tax return they actually get to claim the child.

Another area of Court orders that clients may not understand is deadlines. Court’s often order things to be done in a number of days rather than by a specific date. Your client may not understand when the actual deadline may be without an explanation that 30 days from the entry of the order is a specific date and what needs to be done before that specific date.

Taking the time to breakdown a Court order and explaining what is required of your client or what they can expect by a certain date can save a lot of litigation later.

Mistake #5 – Payments to Former Spouse  - In many decrees, the Court has made an award of property to one spouse or the other that can result in an equalization payment from one spouse to the other, or the Court has ordered monthly payments from one spouse to the other for child support or maintenance.  It is important to advise our clients when these payments are actually due, the amount of these payments and how to pay these payments to their former spouse.

Above all clients must understand that no payments to a former spouse should be made in cash, ever. These payments are generally not traceable and could result in your client back before a judge trying to prove that payments were made without any supporting documentation. It is important with the transfer of any money, for whatever reason, that your client has proof that the transfer took place and that their former spouse received the payment.

Item #6 – Failure to Divide Retirement Accounts Promptly - If you are entitled to a share of your spouse’s retirement account and the account is ERISA-covered, your settlement agreement or your decree cannot help you. ERISA applies to most private tax-qualified pension, profit sharing, and stock bonus plans, including defined benefit pension plans, 401(k) plans, money purchase pension plans, and employee stock ownership (ESOP) plans. If ERISA applies to the account, then the plan administrator cannot alienate and divide the account unless and only as provided in a qualified domestic relations order (QDRO).  It is also important to advise your client to not cash in the retirement account in order to divide the account, this could result in huge financial tax implications for which your client may be solely responsible.

A QDRO is a court order that creates or recognizes the existence of an alternate payee's (the other spouse) rights to receive all or a portion of the account benefits. The QDRO requires specific information, which at a minimum must include, the name and the last known address for the payee and the alternate payee, the amount or percentage to pay the alternate payee, the manner of payment, the number or duration of payments and each plan to which the order applies.

Generally, there is not a default QDRO and the plan administrator is the determining factor if the Order qualifies under ERISA and their own requirements. Essentially, the plan administrator has more power than a state court judge in these situations. It is not unheard of that attorneys and plan administrators go back and forth over the course of many months revising the QDRO to meet the plan administrator’s requirements. The best way to avoid this back and forth is to work with the administrator early in the case and to work with them in a timely manner after the entry of the decree to make sure their requirements have not changed. Most plan administrators have a sample QDRO that they will send to you, if requested.

If possible, have the administrator review and pre-approve the QDRO before you submit it to the court for entry. This may speed up the approval process and help effectuate the division of the retirement account.

If your client does not want to incur any additional fees in preparing the QDRO, it is imperative to advise them to not put off getting a QDRO in place. Waiting to divide the retirement accounts can have huge implications in the future, especially if one spouse, many years down the road, liquidates an account that should have been divided or, due to the financial markets, there is less money in the account than one spouse was supposed to receive.

Mistake #7 – Failing to Fix Decrees – With the introduction of word processing software it has become easier and quicker to turn out documents that eventually become orders of the Court.  It is possible that the Court made a mistake in drafting a decree, maybe the Court switched Petitioner for Respondent, or maybe there is poor wording in a decree awarding property.  These are all excuses for an ambiguous divorce decree. You may be able to read the decree, shortly after trial,  and know exactly what the Judge meant to do, but you cannot rely on agreeing the judge’s meaning in order to move forward, as it may become an issue in the future.

Suddenly, it’s years after the decree and issues have arisen. If those errors have not been fixed, it can result in needless litigation. The judge that issued the decree may no longer be a judge and you may have to explain to a new judge what the old judge really meant. It is also possible that third parties may not be privy to any agreement of what a judge meant in a decree, and the ex-spouse could, years later, not agree with your client anymore.

If the decree has a typo or is in any way ambiguous, fix it immediately, while the case is still fresh in the minds of you and your judge. It is possible to do this by agreement with opposing counsel, or by filing a motion pursuant to Ky. R. Civ. P. 60.01 or 60.02 to correct the decree. You can explain to the judge why you think the decree has a typo or is ambiguous and what you think the decree should really provide. 

While this is not an exhaustive list of mistakes that could be made after the decree is entered, it is an effort to show that it is important to review the decree and orders of the Court with your client and advise them on what the order means for them and how it will affect their lives. Having this simple conversation with your client can save your client from going back to Court and give them the ability to move on with their lives.

 

 

 

Discovery without Borders

Anyone who has practiced family law for any period of time has run into the issue of trying to obtain documents from out of state. For many litigators, the choice was to either send a Kentucky Subpoena out of the state and hope that a person will voluntarily comply, or not receive any documents. If an attorney was lucky to represent a client who had funds, they could obtain an order from a court in their home jurisdiction, file that order with the foreign jurisdiction and request the order be enforced. This would require that the litigant hire an attorney licensed in the foreign jurisdiction to enter their appearance and enforce the order from the State of Kentucky. This was not a practical procedure for many clients, with limited funds, that were facing a divorce and a division of the marital estate.

Now that the world we live in is more mobile and electronic, clients have many connections to different states. This results in multiple jurisdictions containing relevant information necessary to the case. It is also not uncommon for residents that live near the border of this state to hire professionals, such as accountants, doctors or attorneys, who live and practice in other states. If a litigant wants to take those depositions, then other issues arise that are usually only resolved if the parties can agree, or again, by going to the local jurisdiction to seek an order, to be registered in the foreign state and then enforced. 

For many years, there were attempts to bring forth uniform laws that would allow for discovery across jurisdictions, however, the 1962 Uniform Interstate and International Procedure Act, and its predecessor the 1920 Uniform Foreign Depositions Act did not gain much traction as a majority of states refused to adopt these acts. It wasn’t until 2007 that the Uniform Law Commission[1] created the Uniform Interstate Depositions and Discovery Act (“UIDDA”), providing a mechanism for litigants to efficiently and effectively obtain information in foreign jurisdictions.

The UIDDA is intended to ease the difficulty of obtaining discovery in foreign jurisdictions. In 2008, Kentucky codified the UIDDA with the adoption of  KRS 421.360 and joined Alabama, Alaska, Arizona, California, Colorado, Delaware, District of Columbia, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, U.S. Virgin Islands, Utah, Vermont, Virginia, Washington. In 2015, Arkansas, Illinois and Wisconsin all introduced legislation to enact this Act into their state laws.

With a majority of states passing this act, it helps meet the Act’s overall purpose, which is a uniform act to set forth a procedure that can be easily and efficiently followed, that has a minimum of judicial oversight and intervention, which is cost-effective for the litigants, and is fair to the deponents. UIDDA §3 (2007) (emphasis added).

Kentucky has adopted this Act verbatim, the language of which can be found in KRS 421.360: 

 (1) This section may be cited as the Uniform Interstate Depositions and Discovery Act.

 (2) As used in this section:

(a) "Foreign jurisdiction" means a state other than this state;

(b) "Foreign subpoena" means a subpoena issued under authority of a court of record of a foreign jurisdiction;

(c) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;

(d) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States; and

(e) "Subpoena" means a document, however denominated, issued under authority of a court of record requiring a person to:

1. Attend and give testimony at a deposition;

2. Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or

3. Permit inspection of premises under the control of the person.

(3)       (a) To request issuance of a subpoena under this section, a party shall submit a foreign subpoena to the clerk of the Circuit Court of the county in which discovery is sought to be conducted in this state. A request for the issuance of a subpoena under this section does not constitute an appearance in the courts of this state.

(b) When a party submits a foreign subpoena to a clerk of the Circuit Court in this state, the clerk, in accordance with that court’s procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

(c) A subpoena under paragraph (b) of this subsection shall:

1. Incorporate the terms used in the foreign subpoena; and

2. Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

(4) A subpoena issued by a clerk of the Circuit Court under subsection (3) of this section shall be served in compliance with any rule of court or statute relating to the service of a subpoena issued in this state.

(5) Rules of court and any provision of the Kentucky Revised Statutes applicable to compliance with subpoenas to attend and give testimony; produce designated books, documents, records, electronically stored information, or tangible things; or permit inspection of premises shall apply to subpoenas issued under subsection (3) of this section.

(6) An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of the Circuit Court under subsection (3) of this section shall comply with the rules of court of this state and statutes of this state and be submitted to the Circuit Court in the county in which discovery is to be conducted.

(7) In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(8) This section applies to requests for discovery in cases pending on July 15, 2008.

If a litigant wants to subpoena documents in a foreign jurisdiction and that jurisdiction has passed the UIDDA, then the process should be simple for the litigant. Under the UIDDA, the litigant must submit the following to the state where discovery is sought: (1) a request for issuance of a subpoena (most states have a form) attaching the foreign subpoena (the subpoena from the state where trial is pending); and (2) a subpoena prepared according to the procedures of the state in which you are seeking discovery. That subpoena should incorporate the terms of the foreign subpoena and contain the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates. If a party is not represented by Counsel, then they should also be included. The clerk of the court should issue a subpoena from the state in which discovery is sought and then it should be served under the rules of that state.

The real benefit of this Act is that obtaining a subpoena in a foreign jurisdiction does not constitute an appearance in the foreign jurisdiction. Therefore, a litigant seeking discovery would not need to obtain local counsel to obtain and issue the subpoenas, because the foreign jurisdiction’s rules regarding unlicensed attorneys practicing law in that state would not be violated.

However, it should be noted that the act is silent with regard to what happens if the party you are seeking documents from makes a motion to quash the subpoena in the foreign jurisdiction, requests a protective order in the foreign jurisdiction, or if the person who issued the subpoena seeks to enforce it in a foreign jurisdiction. The act does not seem to afford the foreign attorney with additional non-appearance language for these actions. If any of the aforementioned takes place, an attorney would probably need to obtain local counsel, licensed in the foreign jurisdiction, or risk being accused of practicing law in a foreign jurisdiction without a license.

It is important that you respect the state in which you are seeking discovery and its statutes regarding discovery. They may contain different procedural requirements that are not contained in the UIDDA and the UIDDA does not alter any states procedural requirements. For instance, the state of Kentucky allows for the service of a subpoena by any manner in which a summons may be served. Ky. R. Civ. P. 45.03. However, the state in which you are seeking discovery may not allow for service of subpoenas by certified mail, so it is important that you know and understand the procedural requirements, especially if you do not seek help from local counsel.

A practitioner must also understand what the UIDDA does not do, or where it does not apply. The UIDDA only applies to subpoenas issued in relation to a Court action. It does not apply to subpoenas that may be issued to administrative hearings or other proceedings where a subpoena may be issued. The commission considered this in its notes to the UIDDA, but had concerns that like previous versions, it would meet resistance from states and would not catch on and help fix the issue.

In addition, the UIDDA does not supersede or affect the rules of Court in the state in which trial is occurring. If the trial state requires that a notice of deposition is to accompany a subpoena, then the UIDDA does not do away with this requirement, but actually requires you to follow those rules in the trial state. The UIDDA is meant to govern the procedure in the state in which you are seeking discovery.

The UIDDA should allow for an easier, less expensive and less stressful way to obtain discovery across state lines, so long as there is not a challenge to the discovery that you are attempting to obtain. If there is no challenge to your discovery and the state has adopted the UIDDA, then you should be able to obtain documents easily. If there is a challenge to your discovery, you will probably need the assistance of local counsel. Overall once more states adopt this act and attorneys become more comfortable using this act, then the ability to conduct out of state discovery should be relatively the same.

 

 

 

[1] Formerly known as the “National Conference of Commissioners on Uniform State Laws”

Jason Bowman
Jason A. Bowman is the newest fellow of the AAML

Pregliasco, Straw-Boone, Doheny, Banks & Bowman, PLLC is proud to announce that Attorney Jason A. Bowman has become a Fellow of the American Academy of Matrimonial Lawyers (AAML).  The AAML was established in 1962 by highly regarded domestic relations attorneys “To provide leadership that promotes the highest degree of professionalism and excellence in the practice of family law.”  Academy Fellows are highly skilled negotiators and litigators who represent individuals in all facets of family law.   Jason is now the third partner with Pregliasco, Straw-Boone, Doheny, Banks & Bowman, PLLC to become a fellow with the Academy.

The family law attorneys at Pregliasco, Straw-Boone, Doheny, Banks & Bowman, PLLC are specialists in dealing with family law issues, and can provide qualified legal advise as it relates to your matter.

For more information on issues pertaining to Kentucky family law, divorce, property distribution, modification, prenuptial agreements, child support, timesharing/custody and alimony cases, please call Jason A. Bowman, for a consultation.