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Ky Family Law Blog

Posts tagged Divorce
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.