Monthly Archives: January 2015

When A Parent Wants To Move Away and Take The Child

Kentucky Supreme Court Justice Cunningham wrote a beautiful dissent in a case that touches on many child custody and parenting issues, including relocation of the child away from one parent.  I have taken liberty to trim away the introductory paragraph and I have highlighted some of the more thought provoking pieces.

We can no longer afford the simplistic approach to arbitrarily allow parents to relocate to distant places simply because the child is doing fine in the primary physical custody of that parent. There is a tremendous amount of evidence which connects frequent residential moves of children of separated parents to major problems in child adjustment. The effects upon children being frequently relocated include lower academic performance and higher rates of problems with depression, conduct, and peer relationships.  We are not talking about moves by intact families where children usually cope and sometimes even thrive. Relocation by a divorced parent where the child is torn away from the mother or father is uniquely different.
In 1998, the prestigious American Academy of Matrimonial Lawyers took on the difficult problem of parental relocation and proposed a Model Relocation Act. The Act itself lists several factors that the trial court should consider before allowing the relocation of a child.  While many states have dealt with the relocation issue through legislation, others have given — as we should do here — guideposts to trial courts through their highest courts.
Of course, each jurisdiction is unique, but there are common factors running through all. The following are but a few of these common factors:

(1) the age of the child;
(2) the purpose of the move;
(3) the distance of the move;
(4) the worthiness of the move for the child when balanced with any negative effects;
(5) the improvement of the child’s standard of living;
(6) the physical hardship of travel for the child on visitation with the non-custodial parent;
(7) the presence or absence of extended family for the child at the new location versus the existing location;
(8) the motivation of the non-custodial parent for objecting to the move (i.e., is it genuine concern for the child or simply a way of punishing the former spouse?);
(9) whether the non-custodial parent has turned down career advancement opportunities by not moving away in order to stay close to the child;
(10) the possibility and plausibility of the non-custodial parent following the child; and
(11) the number of times the custodial parent has moved.

I search in vain to find attention given by the trial court to any of these key elements in its custody determination.
It is significant that this is a “joint custody” case and Justice Noble ably describes how that arrangement places more responsibility for child rearing on both parents than in a “sole custody” situation. Here, the non-custodial parent is legally entitled to be involved in all aspects of the child’s life, which is independent of the time actually spent in the child’s presence. The letter and spirit of Chalupa, a landmark case referred to by the majority, hovers over these relocation cases. Indeed, “a divorce from a spouse is not a divorce from their children,” especially in joint custody cases. However, when the custodial parent moves far away with a child, an effectual “divorce” occurs between the child and the non-custodial parent.
The trial court in this case gave no treatment whatsoever to the contributing role of the father in making this child happy and a good student. There was no consideration of what would happen when this dual parenthood was cut asunder. The trial judge stated: “The court is not inclined to end a six year relationship of a child with a parent merely because that parent remarries and moves to a different location.” The essence of the trial court’s findings dealt only with uncontroverted issues; the parties never contested that both were good parents, or that the child had been with the mother for a very long time and was doing well. The trial court dealt solely with the relocation and its effects on the child. Yet the findings totally ignore the issue of the case.
The importance of having both parents engaged in the upbringing of children cannot be overemphasized. Reams of research material are available addressing the negative impact parental relocation has upon children. If we are truly dedicated to placing the child’s best interest as paramount, then we must seriously rethink our current notions of adult freedoms and prerogatives. When a custodial parent decides to move a great distance, the non-custodial parent may no longer be deeply involved in the child’s life. The custodial parent has a choice — the choice not to move. The non-custodial parent has no choice and is not only helpless, but essentially stripped of his or her child. The child is also at the mercy of the custodial parent’s choice.
The majority refers to another relocation case that this Court decides today, which works in tandem with this one. Frances v. Frances, S.W.3d , 2008 Ky. LEXIS 258 (Ky. 2008). Not only are these two cases distinguishable, but the distinction between them is instructive. First of all, in Frances this Court affirms the Court of Appeals’ decision which relied heavily upon Brumleve v. Brumleve, 416 S.W.2d 345 (Ky. 1967). That case provides the underpinning for this dissent: “[Custodial parents] should be given considerable latitude in choosing where they will live. But when this right is challenged by the former [spouse and parent] of the children, [the custodial parent] should offer some plausible reason for taking minor children out of the jurisdiction of the court to the prejudice of the visitation rights of the [non-custodial parent]. Mere whim is not enough.” Id. at 346. In Frances, the trial court considered the issue of relocation as critical to its decision-making. The majority declared: “Though the trial court stated the relocation of the Appellant was a substantial factor in the custodial determination . . . the record also indicates that the trial court placed significant weight on Haley’s strong relationship with her father, frequent interaction with the father’s extended family, and adjustment within the community.” Id. at 758.
In my writing here, I do not opine that the trial court necessarily got it wrong in this case. However, I think there was insufficient consideration of the core issue — the impact of the relocation upon the child. Or at best, there were insufficient findings and lack of a much needed analysis.
I am concerned that our Court passes up a golden opportunity today to lend much needed guidance to our trial judges, who continue to confront the problem before us without assistance from this Court or the legislature.
Therefore, I very respectfully dissent.
Pennington v. Marcum, 266 S.W.3d 759, 772-774, 2008 Ky. LEXIS 235, 31-38 (Ky. 2008)

 

 

Kenton County Family Court Local Rule For Guardian Ad Litems

RULE 23. GUARDIAN AD LITEM RULES OF PRACTICE.
A. Preface. Children are non sui juris.(1)Link to the text of the noteAbsent legislation which is constitutionally appropriate under the seventh part of the Kentucky Constitution, section 59, and other pertinent provisions of law, it shall be the policy of the Kenton Family Court to respect that important status and thereby promote the safety and care of children whose well-being is involved in litigation before this Court. When appointed as Guardian Ad Litem (GAL) for a child pursuant to a provision of the Kentucky Unified Juvenile Code or otherwise, it shall be the duty of that appointee to advocate for the client’s best interest.
A GAL shall act in the capacity of attorney for a child. A GAL stands in the child’s place to determine what the child’s best interests and defense demand. Although a GAL does not have the powers of a regular guardian under KRS 387.010 et. seq., a GAL fully represents the child and is endowed with similar powers for purposes of the litigation at hand. Therefore, the GAL is both a fiduciary and lawyer for the child, and, in a sense, the representative of the child.
Statements made by the GAL for a child to the Kenton Family Court, whether during a hearing or in a motion or memorandum or otherwise, are presumptively acts of speaking legally on behalf of the child or advocacy or both; they are neither evidence nor an implicit claim of expertise of any kind. A GAL for a child shall not be called as a witness during litigation in which that lawyer is representing a child.
There shall be no requirement of a formal written report to be filed by the GAL as a recommendation to the Kenton Family Court. The GAL shall make recommendations to the Court during hearings or otherwise in a manner that will present those recommendations to all litigants.
A GAL for a child shall not be required to complete a custody evaluation. Statements by a GAL regarding the award of custody and collateral matters shall not be regarded as a custody evaluation.
B. Practice Guidelines. (2)Link to the text of the note
Settlement Letter/Joint Meeting. Prior to the final hearing in a case in which a GAL has been appointed, any litigant may move for a Joint Meeting between the GAL, the parties and their counsel to discuss the settlement of the case and to request that the GAL send opposing counsel a Settlement Letter outlining how the case might be settled. The Joint Meeting discussion may be conducted in conjunction with a pretrial conference to secure access to the presiding Judge for all parties at the same time. If sustained, the Joint Meeting may include what the GAL intends to say on behalf of the child, the efforts of the GAL to date, and the propriety of the GAL making other specified efforts. Discussion of extra, specified efforts by the GAL shall take into consideration the financial reasonableness of any such request.
Affidavit of Due Diligence. Prior to the final hearing in which a GAL is appointed, any litigant may move for an Affidavit of Due Diligence to state the number of hours that have been expended in the case, the functions that the GAL has completed, the tasks that have been performed, and the fee that the GAL has requested. In the absence of such a motion, a GAL may choose to tender an Affidavit of Due Diligence and use that opportunity to provide details about the case and thereby state his or her efforts in a clear context.
C. Appointed Counsel Roster. There shall be created by the approval of these Rules by the Supreme Court of Kentucky, a roster of attorneys called the KRS 620 Guardian Ad Litem and Appointed Counsel Roster (herein referred to as “Roster”) to serve as GALs and separate counsel pursuant to the provisions of KRS 620.100.
Application for Appointment. Pursuant to the enactment of these Rules, all eligible attorneys who wish to serve as GALs and be Roster members, including those who are currently or have previously acted in this capacity, will need to (re)apply for membership. The Court will designate and maintain the Roster’s membership. The initial number of members shall be fourteen (14). This number and the designated members are subject to revision or removal by the Court.
D. Obligations of Roster Members. Persons eligible for service on the Roster shall meet the following obligations:
1. They must be in attendance and available for appointment during the first calls of new cases as often as the Judges of Kenton Family Court shall require.
2. They must average three (3) hours of approved educational programs per year.
3. They shall attend a basic GAL seminar provided through the Administrative Office of the Courts. Should that particular training cease to be offered, then another such training approved by the Administrative Office of the Courts may be substituted.
E. Dependency, Neglect, and Abuse and Termination of Parental Rights. Special Duty of Roster Members. The attorney who represents or has represented a parent or child in a Dependency, Neglect and Abuse case, unless objected to by that parent, should also counsel and if necessary, represent him or her in the Termination of Parental Rights action.
When there is no pending termination of parental rights litigation in the Kenton Family Court and when a parent wants to voluntarily give up his or her parental rights, the Roster member who is involved in the proceeding, if asked by the parent, shall within a reasonable time counsel him or her. That Roster member shall advise about legal issues arising in a voluntary termination of parental rights case and try to ascertain whether such a relinquishment would be made with understanding of what it entails and without improper coercion. Thereafter, if the parent wishes to surrender parental rights to a child or children, the Cabinet for Health and Family Services (“Cabinet”) shall be notified so that it may be ascertained whether the Cabinet is willing to be involved in such litigation or in collateral involuntary termination of parental rights litigation and whether it is feasible for an appropriate attorney’s fee to be paid. If both the parent and the Cabinet are receptive to a voluntary termination of parental rights and if statutory compensation for the Roster member appears to be available, then that member shall prepare and file a voluntary petition for termination of parental rights and he or she shall participate as counsel in that lawsuit and in any precautionary involuntary termination of parental rights lawsuit that is collateral to it. The Kenton Family Court will award that member of the Roster those attorney’s fees under the Kentucky Unified Juvenile Code as are appropriate for services rendered both before and after filing of the petition.
Additionally, the attorney shall, having served as GAL or separate counsel, serve in the same capacity in a sequential involuntary termination of parental rights case if appointed by the Kenton Family Court.
F. Permanency Litigation Panel. There shall be created by the approval of these Rules by the Supreme Court of Kentucky, a panel of attorneys (herein referred to as “Permanency Litigation Panel”) to serve as GALs who are entitled to serve as appointed counsel in Adoption, Dissolution of Marriage, Petition for Permanent Custody pursuant to KRS Chapter 403 or as Amicus Curiae in such proceedings. The number and initial membership of the Permanency Litigation Panel shall be decided after the application process described in above subsection “C” and are subject to removal by the Judges on the Kenton Family Court. Applications for the Permanency Litigation Panel shall be accepted year round. The obligations of the Permanency Litigation Panel are the same as the Roster members described in above subsection “D.”
Special Rules Concerning the Permanency Litigation Panel and Child Custody Litigation. The Court, in its discretion, shall decide how to best protect the interests of any child or children involved in custody litigation. The Court may, sua sponte, appoint a member of the Permanency Litigation Panel as Amicus Curiae to serve the interests of justice. Any party involved in custody litigation may move the Court for appointment of a GAL.
Permanency Litigation Panel and Attorney’s Fees. Persons appointed as GALs and Amicus Curiae shall be entitled to a reasonable fee.(3)Link to the text of the note
G. Joint Administrative Rules for Roster Membership and the Permanency Litigation Panel.
Role of Each Panel. As previously enumerated within thus Rule, the role of each Panel shall be as follows:
KRS 620 Guardian Ad Litem and Appointed Counsel Roster (“Roster”). These members shall serve as GAL and separate counsel pursuant to the provisions of KRS 620.100.
Permanency Litigation Panel. These members shall serve as GAL entitled to serve as appointed counsel in Adoption, Dissolution of Marriage, Petition For Permanent Custody pursuant to KRS Chapter 403 or as Amicus Curiae in such proceedings.
Vacancy. When a vacancy arises, notice of that fact shall be published through the auspices of the Northern Kentucky Bar Association. The vacancy shall be filled from among those candidates who timely submit a letter, assuring that the minimum requirements of these Rules are met, to the Kenton Family Court.
Compensation. Roster and Panel members will be compensated in accordance to the current fee of one hundred dollars ($100) per hour or some future replacement fee schedule promulgated by the Kenton Family Court. In cases in which compensation is by an hourly basis and fee cap, the duty of counsel to keep records of time and services rendered shall cease when the maximum fee has, subject to a ruling on the fee application, apparently been earned.
The award of attorney’s fees in accordance with the attached fee schedule shall be limited to members of the pertinent group which is eligible for appointment, to wit, either Roster or Permanency Litigation Panel members.
Appointments. In each Panel, the priority of appointments shall be given to those members who have already had appointments in cases involving the family which is again involved in litigation.
The Family Court Judicial Secretary shall prepare schedules, setting forth the dates upon which regular court proceedings are to be held, that shall provide which members of the pertinent panel are to have appointments in new cases on those days.
Appointments in paternity cases as GAL for putative fathers or mothers in prison or otherwise under incapacity shall be awarded to interested members of the Roster or Permanency Litigation Panel on a rotating basis.
Kenton Family Court Advisory Committee. Herein referred to as the “Advisory Committee,” this group shall be created by the Kenton Family Court from among members of the Roster and the Permanency Litigation Panel; it shall consist of a Chairperson and four (4) other members and each shall serve a two (2) year term. Members may be reappointed or removed by the Kenton Family Court. Responsibilities of the Advisory Committee shall be to prepare or approve the education as mentioned in subsection “D” in addition to any other duties the Court shall assign.
Accountability. The Kenton Family Court Judges shall preside over the accountability of the Roster and Permanency Litigation Panel members. The Court shall conduct an annual review of the Roster and Permanency Litigation Panel. The Court, in its discretion, may declare all memberships vacant and invite an application process to fill the membership. The Court may choose to meet with the individuals or groups of the Roster and Permanency Litigation Panel at its discretion.(4)Link to the text of the note
Fee Schedule. Rendition of services pursuant to appointment and compensated in accordance with these Rules will be taxed as costs of the proceeding. Failure to make payment, within a reasonable time, of any fee awarded, can, in the discretion of the Kenton Family Court, be sanctioned.
H. Warning Order Appointments and Guardians Ad Litem for Prisoners and Persons of Unsound Mind. All practicing attorneys who are licensed to practice law before the Supreme Court of Kentucky are eligible to apply for and be placed on a rotating list, maintained by the Judges of the Kenton Family Court pursuant to CR 4.07. Upon rendering the Warning Order Appointment as required by CR 4.07(2)(5), the Warning Order Attorney shall be entitled to a fee, as authorized by the Kentucky Civil Rules, and as set forth within these Rules and be taxed as costs in the proceeding. Persons who are located by a Warning Order Attorney, who are eligible for the appointment of counsel under KRS Chapter 600 et. seq. and want the Warning Order Attorney to represent them, shall, absent extraordinary circumstances, have a lawyer appointed to act on their behalf in the pending litigation. These services shall be compensated pursuant to the provisions of KRS Chapter 600 et. seq.
In ordinary civil cases, the rotating list of Warning Order Attorneys shall also serve as rotating list for appointments of GALs under CR 17.04 for prisoners and persons of unsound mind. In extraordinary civil cases, to wit, those for which there is a statutory fee for GALs and appointed counsel under the Kentucky Unified Juvenile Code, appointments pursuant to CR 17.04 will be made to an appropriate member of the Roster or the Permanency Litigation Panel.
I. Modification. The provisions of the foregoing Rules are subject to modification, repeal, or alteration upon concurrence of all Judges on the Kenton Family Court.
KENTUCKY RULES ANNOTATED
Copyright © 2015 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved
Ky. 16th Jud. Cir. FCR RULE 23

KRS 403.270 Kentucky’s Best Interests of the Child Statute

403.270. Custodial issues — Best interests of child shall determine — Joint custody permitted — De facto custodian.

  • (1) 
    • (a)  As used in this chapter and KRS 405.020, unless the context requires otherwise, “de facto custodian” means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a childwho has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.
    • (b)  A person shall not be a de facto custodian until a court determines by clear and convincing evidence that the person meets the definition of de facto custodian established in paragraph (a) of this subsection. Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this section and KRS 403.280, 403.340, 403.350, 403.822, and 405.020.
  • (2)  The court shall determine custody in accordance with the best interests of the childand equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors including:
    • (a)  The wishes of the child’s parent or parents, and any de facto custodian, as to his custody;
    • (b)  The wishes of the child as to his custodian;
    • (c)  The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;
    • (d)  The child’s adjustment to his home, school, and community;
    • (e)  The mental and physical health of all individuals involved;
    • (f)  Information, records, and evidence of domestic violence as defined in KRS 403.720;
    • (g)  The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
    • (h)  The intent of the parent or parents in placing the child with a de facto custodian; and
    • (i)  The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.
  • (3)  The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child. If domestic violence and abuse is alleged, the court shall determine the extent to which the domestic violence and abuse has affected the child and the child’s relationship to both parents.
  • (4)  The abandonment of the family residence by a custodial party shall not be considered where said party was physically harmed or was seriously threatened with physical harm by his or her spouse, when such harm or threat of harm was causally related to the abandonment.
  • (5)  The court may grant joint custody to the child’s parents, or to the child’s parents and a de facto custodian, if it is in the best interest of the child.
  • (6)  If the court grants custody to a de facto custodian, the de facto custodian shall have legal custody under the laws of the Commonwealth.

History


(Enact. Acts 1972, ch. 182, § 17; 1978, ch. 86, § 1, effective June 17, 1978; 1978, ch. 369, § 1, effective June 17, 1978; 1980, ch. 158, § 1, effective July 15, 1980; 1992, ch. 169, § 2, effective July 14, 1992; 1998, ch. 250, § 1, effective July 15, 1998; 2000, ch. 14, § 51, effective July 14, 2000; 2004, ch. 133, § 42, effective July 13, 2004.)

This Guy Has Been Writing About His Wife Cheating On Him On Reddit

First, let me point out the obvious:  In no fault divorce states like Kentucky and Florida, infidelity has no bearing on whether you may get a divorce or not.  I’m not sure what more evidence the man needs.  Courts do not punish people for cheating on their spouse.  Maybe if someone is wasting marital assets on an extramarital affair, then it may become an issue.  Otherwise, save yourself the time, money, and grief.  If you want a divorce, you can get one without putting yourself through all this headache.

Secondly, in Kentucky and Florida, a judge can order that the spouse that has the greater resources to pay the attorney fees for less advantaged spouse.  Bragging on reddit that you can afford a better attorney than your wife means that you have handed a judge all the information they need to order you to pay for her attorney too.  Also, there are just as many quality affordable attorneys as there are expensive quality attorneys.   Don’t waste your assets thinking you have an advantage by paying more for your attorney.

Thirdly, don’t do what this guy is doing.  Keep your notes private.  None of this really matters in the long run anyway and it will ultimately make you look like a jerk to the court.

The Reddit link can be found here.

father's rights

Rights of Fathers to Have Their Children Bear Their Last Name

Pursuant to Ky. Rev. Stat. Ann. § 401.020, a child’s parent has the right to have the name of a child under the age of 18 changed by the district court. However, pursuant to Ky. Rev. Stat. Ann. § 403.110(1) and (3), there are safeguards to mitigate potential harm to spouses and their children:

This chapter shall be liberally construed and applied to promote its underlying purposes, which are to:
(1) Strengthen and preserve the integrity of marriage and safeguard family relationships;
(2) Promote the amicable settlement of disputes that have arisen between parties to a marriage;
(3) Mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage;
(4) Make reasonable provision for spouse and minor children during and after litigation; and
(5) Make the law of legal dissolution of marriage effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis for its dissolution.

The Kentucky Supreme Court has ruled that having the child bear the father’s last name is important to preserving family relations and the public policy favoring preservation of family relationships outweighs the statutory right to apply for one parent to unilaterally apply for a name change.   Any name change of a child will not only be reviewed under the “best interests of the child” standard; but requires the parent requesting the name change to prove through  ‘clear and convincing’ proof that the name change will promote the best interests of a child or children.  The high burden of proof is necessary in order to balance a natural father’s protectable right to have his children bear his name, against what is best for the child or children.

Even in cases where the child has expressed a desire to have both her father’s surname and her mother’s new surname; the court has stood firm. The fact that a proposed name would include the father’s surname does not exempt it from the grounds established by the supreme court. The father had the right to have the child bear his name to the exclusion of all others.

 

Guardian Ad Litems Are Being Overused and Misused

There is a rush in many parenting/custody cases to request that a guardian ad litem (GAL) be appointed for children.  However,  Kentucky law does not specifically define the role of a GAL in custody proceedings.  Requesting a GAL to be appointed is often times the lazy way around a high conflict proceeding.  The goal of all parties involved should be to keep the children as far away from the litigation and the conflict as possible.  Having a GAL as part of a custody case, puts the children front and center of the conflict.

GALs are attorneys.  Attorneys are not psychologists, therapists, or family counselors.  There is nothing that a guardian ad litem can deliver to the court that competent family law attorneys and the parties can’t deliver on their own.  And what is “counsel for the child”?  There is no explanation in the law.  The meaning is left up to the reader.  The plain meaning of term is legal representation for the child.  Which poses the question, if a GAL is an attorney for the child then the GAL cannot be a witness to the court.  Right?

The road to hell is paved with good intentions.  What we have here in Kentucky is some very vaguely written statutes across the board in family law.  Perhaps rewriting and updating the “best interest of the child” statute would be a better place to start.  Judges are afforded the power and authority to consider evidence and make the determination of the best interests of the child.   There is always an opportunity for a well qualified expert to be appointed to provide testimony to the Court.  But Judges should not be divesting their power and authority to other attorneys.

Co-owners Of Real Property In Kentucky Have Rights To Force Sale

There are many different situations where two or more individuals may be co-owners of real property.   One of the most common examples of co-ownership of property is by a husband and a wife.  When a married couple decides to divorce and their marital home or other real property is titled in both of their names, then something has to be done about the property if the two cannot agree.  A request for a partition should become part of your divorce petition.

If you are a co-owner of property in Kentucky, you have an absolute right to file for partition of the property if you no longer wish to own or utilize the home or the land. In Kentucky, there are two means of effectuating a partition: one can either have a voluntary partition, where the co-owners agree to divide the land between them, or a judicial partition, where the co-owners commence partition litigation and the land is split by a court order.

Regardless of whether the partition is voluntary or judicially-enforced, the parties have two main ways of dividing the land. It can be a partition in kind, where the parties each have their own section of the land carved out, which will then belong to only them. This is generally only used in cases where the land can easily be split, such as vacant land. The other alternative is a partition by sale, where the home or building is sold at auction and any proceeds from the sale are divided between the co-owners.

In Kentucky, there are two types of co-ownerships available to property owners. They can either take property as tenants in common or as joint tenants. Tenants in common own property in whatever share they contributed to the original purchase in, or whatever share they agreed to contractually. Joint tenants, however, must own property in equal shares, regardless of the contributions to the acquisition of the property. In partition, the land must be divided according to the shares delineated in the tenancy.

Kentucky is a lien theory state, which means that when you file a partition lawsuit and Kentucky is the jurisdiction, all liens held by mortgage companies or lenders must be satisfied before the land can be divided or sold.

Dear John Letter

How To Write the Perfect Dear John Letter

Have you ever wondered how to write the perfect Dear John letter? Jackie Kennedy did long before she became Mrs. Kennedy.

On January 20, 1947 the young Ms. Bouvier wrote to her Harvard boyfriend:

“I’ve always thought of being in love as being willing to do anything for the other person—starve to buy them bread and not mind living in Siberia with them—and I’ve always thought that every minute away from them would be hell—so looking at it that [way] I guess I’m not in love with you.”

The letter is part of a lot held by Christies

What is legal separation?

In Kentucky:

Legal separation is a means of establishing some legal rights in a marriage short of divorce. A legal separation means that the two people have agreed to how to divide up property and marital obligations but will remained legally married. During a legal separation action, the parties enter into a Separation Agreement which is then filed with the court.  The agreement then governs the husband and wife in how they deal with marital property and assets going forward. Both parties must be in full agreement on every issue in order to be granted a legal separation.  It is the equivalent to entering into a contract.  Such an agreement may define what actions must be taken to restore the marriage, list which events will cause either party to move for divorce, or deal with child or monetary issues while the parties live apart, etc.

If a Decree of Legal Separation is entered:

A a divorce decree then cannot be entered until 1 year has passed from the date of the legal separation.   The divorce is not automatic after 1 year but the court cannot enter a divorce decree until  the 1 year has passed.  Property later acquired by either spouse is his or hers to keep if the spouses ultimately divorce. Such property is not considered “marital property” which a court must divide “in just proportions.” KRS 403.190.
Provisions in each spouse’s will which award property to the other spouse are not affected. In contrast, when divorce is granted, all dispositions of property made to the former spouse are automatically revoked. KRS 394.092.
The parties are not free to marry someone else. Parties may marry again only if they have been granted a divorce. KRS 403.010.
Purpose/Necessity

Legal separation may be desirable under any of the following circumstances:

The parties are willing to see if a time apart will cure a temporary marital problem or will prove that divorce is necessary.
The parties feel the need to separate but one or both have religious, moral, or social misgiving about obtaining a divorce.
The parties want to separate in some fashion but would like to retain certain benefits such as health insurance, Social Security, or the ability to file joint tax returns.  Some may choose legal separation as opposed to marriage due to religious beliefs.

If you have question regarding anything mentioned on this site, please contact a family law attorney in your area.  If you would like to schedule a free consultation with a northern Kentucky family law attorney please call (859)400-3733, (859)400-FREE or visit the main page at kenturnerlaw.com.