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Ky Family Law Blog

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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.

 

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.