Joint custody is based on two simple presumptions. First, that the parents are able to communicate to resolve any issues involving their child. And, second, that it is in the best interest of the child that both parents be extensively involved in the decision making for the upbringing of the child. However, when communication breaks down and the safety of the child is called into question, it might be time to modify any previous joint custody orders or agreements.
There are two different laws you must follow when you decide to modify child custody. The first law (actually two laws) applies when you are modifying child custody within the first two years of an original custody order. If a modification to child custody is attempted less than two years after an entry of custody decree, then the party seeking modification must submit two affidavits demonstrating:
The second law that must be followed applies when modification of child custody is sought more than two years after the original decree of custody. If more than two years has passed since the original custody decree than the party seeking modification must show at the hearing that a change has occurred in the circumstances of the child or their custodian AND that modification is necessary to serve he best interest of the child.
Both laws require a hearing that results in the court finding upon the facts that a change has occurred in the circumstances of the child and that modification is necessary to serve the best interest of the child. Simply put, if you are seeking to modify a child custody order within two years of an original custody order, then both KRS 403.340 AND KRS 403.350 must be followed (hence the two affidavits). However, if you are seeking to modify a child custody order after two years have elapsed from the original custody order, then only KRS 403.340 applies (hence one affidavit).
The court considers a long list of factors found that include:
These factors have been argued in court successfully showing that if the inability of the parents to cooperate is linked with endangerment of the child's physical, mental, moral or emotional health, then joint custody may be successfully modified. The Kentucky Supreme Court defined cooperation as "rational participation" in decisions affecting the child's upbringing.
The following factors are considered under KRS 403.270:
While the list of factors considered are long, you should assume that the court will consider all facts and evidence that support an argument of what is in the best interest of the child.
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In Kentucky, a declaration of invalidity, otherwise known as an annulment, is only permitted in very specific instances. And, due to the strict requirements necessary to apply for an annulment, a divorce, or dissolution of marriage, is more often the correct approach. However, if you are one of the few individuals seeking an annulment, here is what you need to know.
In order to successfully receive a decree from the court of a declaration of invalidity to your marriage, you must prove that:
Under KRS 403.120, if one party lacked capacity (as described above in #1, #2, or #3), an annulment must be applied for no later than 90 days after the party seeking the annulment obtained knowledge of the described condition. If the parties find that the marriage is prohibited, then either party can seek an annulment no later than one year after the petitioner obtained knowledge that the marriage was prohibited.
Force or duress requires the petitioner to show that their consent to marry was influenced by fear from threats and that their will was overcome by these threats. If you are threatened to marry but otherwise not influenced by these threats, then force or duress would not apply.
There are three categories of prohibited marriages in Kentucky. First, incestuous marriages. An incestuous marriage is a marriage to a family member closer than second cousins. This means that marriages between siblings, in-laws, nieces or nephews, or first cousins are all examples of incestuous marriages.
The second category of prohibited marriages are known as "other" marriages, which include:
While the second category of prohibited marriages, KRS 402.020, was updated in 2018, it is important to note that the law includes same-sex marriages as prohibited marriages. However, this is no longer the case.
The third category of prohibited marriages are marriages obtained by force or duress, or fraud.
Under KRS 402.210, if either of the parties is 17 years of age, a marriage license must not be issued unless the party who is 17 years of age presents to the clerk a copy of a court order that grants the party permission to marry and removed the party's disability of minority (see KRS 402.205), AND at least 15 days have elapsed since the court order was granted.
In order for an individual, 17 years of age, to seek the courts permission to marry, that individual must petition the court with an affidavit attesting to the consent to marry signed by:
Additionally, the petition must include a statement of reasons why the petitioner desires to marry and how long the parties have known each other, evidence of the petitioner's maturity (stable housing, employment, education, etc.), a copy of any criminal records of either party, and copies of any domestic violence orders or interpersonal protective orders involving either party to be married.
After an evidentiary hearing, the court must grant the Petitioner's petition to marry unless:
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One of the most dreaded answers in every divorce or child custody dispute is "it depends." What does that even mean? Well, in every divorce certain requirements must be met. These requirements might extend the time it takes for you to finalize your divorce. However, no two cases are the same.
For purposes of this divorce blog post, lets assume that the divorce is contested. You file your Petition for Dissolution of Marriage, along with all the required supporting documentation (if necessary). Now what? Here is a quick list of the top three facts that could increase the amount of time it takes to finalize your divorce:
Having a child, or children, could automatically make your divorce take longer to finalize. This is because Kentucky has a law that requires testimony to be postponed for sixty (60) days from the date of service, the appointment of a warning order attorney, or a responsive pleading by your spouse (see KRS 403.044). However, this doesn't prevent you or your spouse from seeking a temporary motion.
Investment properties typically extend the amount of time it takes to finalize your divorce because each party has their own beliefs regarding the value of the property, their interest in the property, and how the property will be distributed (refinance, assumption of the loan, or sale of the property). The information required in order to make reasonable proposals often takes time to collect and prepare. Retirement or brokerage accounts are similar in this regard.
The number one driving force behind the amount of time it takes to finalize your divorce - is you and your spouse. If the parties can come to an agreement (Marital Settlement Agreement) quickly, then the divorce could be finalized in as little as a couple of months. If the parties argue over every penny and every section of the proposed agreement, then mediation might be needed to move negotiations forward faster.
If mediation is necessary, then the time it will take to finalize your divorce will be longer. Assuming you and your spouse have legal representation, then you need to get five people on the same schedule. If the mediator is busy, then you could be forced to wait months before a time slot opens up, or be forced to find another mediator. Typically, if mediation is required, you should expend your divorce to take a few months longer.
If mediation fails because the parties disagree with the mediators attempts at settling, then trial might be required. The courts schedule is typically beyond your control. However, if exhibits and witnesses are necessary, then your trial date could be set out a few months. It is not uncommon for these type of cases to take one or more years to finalize.
Often, I hear the myth that a married couple must wait sixty days before the decree will be signed. This is incorrect. In Kentucky, the law states, in part, that no decree shall be entered until the parties have lived apart for sixty (60) days and living apart shall include living under the same roof without sexual cohabitation (see KRS 403.170(1)). For most individuals who seek a divorce, living under the same roof is common; however, most have lived without sexual cohabitation which means that the parties can move forward with requesting the court to sign the Decree for Dissolution of Marriage. This is also one of the reasons why uncontested divorces can happen so quickly.
Also, as an added bonus, distribution of property does not generally increase the time it takes to finalize your divorce. Many individuals believe that their divorce will not be finalized until the marital home is refinanced or sold. Generally speaking, this is not true because the Marital Settlement Agreement could simply state what the parties are planning to do with the property - not that it be done prior to decree.
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Here is the scenario: The husband wants to divorce his wife because they have lived apart for a few years now. The problem is that the husband lives in one county, the wife lives in another county, and they married in a different (third) county. Where does the husband file his Petition for Dissolution of Marriage? Also, what is required in a Petition for Dissolution of Marriage?
Assuming the husband and the spouse have lived in the same state their whole lives, this question is very common. After all, you may have just moved to a new county or are in the process of moving counties. The answer is simple but can cause some serious headaches if done improperly. An action for Dissolution of Marriage (divorce) must be brought in the county where:
Seems simple enough, but many individuals attempt to forum shop, or file in counties where they believe they will have the advantage for some reason. Now that you know where to file your Petition for Dissolution of Marriage, the next question is what is required in your Petition?
For starters, this question can become complex fast. Especially if you have children, one of the parties is a victim of domestic violence, one of the parties is pregnant, or if one of the parties suffers from unstable housing. However, all of your answers can be found in the Kentucky Revised Statutes (KRS). More specifically, KRS Chapter 403 Dissolution of Marriage - Child Custody.
In Chapter 403, is a provision on the procedure for commencement of action for a divorce (KRS 403.150), which states in part that a Petition for Dissolution of Marriage must allege
At first glance, this may seem overwhelming. But, most Petitions for Dissolution of Marriage are only a few pages in length (double-spaced [see your local court rules on formatting]), this changes if you have children or have a history of domestic violence cases.
This most common reason I have found for rejected Petitions for Dissolution of Marriage is lack of required information regarding the parties children. If the parties have children, then they should reference KRS 403.838. This statute provides the required information to be submitted to the court when the parties have children and are determining child custody.
The second most common reason I have found for rejected Petitions for Dissolution of Marriage is lack of complying with KRS 403.135. If you provide personal identifiers, which is required by law in an action for Dissolution of Marriage, then you must provide a redacted and unredacted copy to the court.
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As more and more individuals near retirement, "grey divorces" are statistically on the rise. In essence, a "grey divorce" is simply a couple that decides to divorce after the age of 40. And, since the rise of these type of divorces, the issue as to whether Social Security benefits are considered marital property seems to be a common question asked in these type of divorce consultations.
In short, the answer is a little more complex than a simple "no." The Social Security Act provides an explicit benefit plan and scheme by which divorced spouses may be entitled to a portion of their former spouse's benefits (research surviving divorced spouse benefits). Additionally, the Social Security Act includes an anti-alienation clause providing that all future payments shall not be transferrable or assignable and that all moneys paid or payable shall not be subject to garnishment, levy, etc.
So, does this mean family court judges simply ignore your Social Security benefits? Again, the answer here is also a little more complex than a simple "no." In Kentucky, and in many other states, the courts have determined that while the trial court may not value and include Social Security benefits in the couple's marital estate, the court may consider a spouse's anticipated Social Security benefits as one factor, among many, in dividing the overall marital estate.
Simply stated, mere consideration of non-prospective Social Security benefits in formulating a division of marital property is not preempted by federal law because mere consideration of the benefit does not constitute a transfer, assignment, or other legal process as prohibited by the anti-alienation provisions of the Social Security Act.
You might be wondering when this might become an issue in your divorce. One example - an individual is receiving Social Security benefits and making a claim to maintenance (alimony) during your divorce. Another example - an individual is seeking an equalization lump-sum payment but will receive Social Security benefits in the near future.
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No matter what type of family law matter you are facing, there is a good chance that settling things on your own could lead to mistakes. Whether you are dealing with a divorce or child custody case, a family lawyer will have the expertise to help you in court, as well as offer any insight and support you may need.
Our goal at Wise Law is to find out what success looks like to you and help you reach that goal. We want to do whatever it takes to find the best solutions for you and your family. The way we do that is with a professional knowledge of the law and a listening ear. To help you make the decision to hire a family or custody lawyer for your case, here is our list of the top four benefits of getting outside help.
One of the top benefits of hiring a family lawyer to handle your divorce or child custody case is, in fact, their extensive knowledge of matters related to family law. They can better argue your case, can help you understand the situation, and can ensure you’re being treated fairly. Without a lawyer to help you understand every legal term and decision, there is a chance you could misinterpret a meaning or misrepresent a fact, which could hurt your chances of success.
Plus, like with any legal area, the legislation is constantly changing and it’s the job of a family lawyer to keep up with every intricacy of the law. They can work within the regulations to put you in the best possible position to succeed.
There’s a lot of paperwork that goes into a court proceeding. Luckily, your family lawyer is well equipped to handle the workload, on top of knowing exactly what to do in every situation that could come up at court. Your lawyer can walk you through every process and help you know what to expect so that you feel more confident about your case.
A lawyer is all too familiar with how a courtroom works, and may even know the judge fairly well after working with them for years. A competent and knowledgeable family attorney will be able to keep the judge happy and the proceedings running smoothly and efficiently. Not only do they have your back at court, but they also will make sure every "i" is dotted and "t" is crossed so your case isn’t immediately thrown out. With a lawyer, you can rest assured every piece of paperwork will be filed correctly the first time.
While you, of course, want someone in your corner, another benefit of a family lawyer is their impartial view and honesty. A lawyer can look at your case objectively, give you their professional opinion of where you stand, and help you decide how to proceed. In a family law case, tensions are often high, with emotions sometimes getting in the way of clear thought. A good family lawyer can take on your case with confidence without letting personal emotions or opinions bring them down and take some of the stress of your divorce or child custody case off your shoulders. Here are some questions you might expect from a family lawyer.
Dealing with any family law issue can be stressful and emotionally challenging. You can rely on a family lawyer to not only help you succeed but also to be there for you in your time of need. With a professional on your side, you have someone who understands every in and out of how these kinds of cases work and who is advocating for you every step of the way.
Your family deserves better than the status quo. At Wise Law, we operate under the philosophy that each family has different needs and the same solutions may not work for every family. With years of experience as a Custody Lawyer, we've worked with many different family situations and we're positioned to help you achieve the best outcome for your family. Schedule an initial phone consultation to learn more about how Wise Law can support your family navigating Child Custody and here's what you can expect on that consultation.
