What is the Difference between a Divorce and Legal Separation?
A Divorce (technically known as a dissolution of marriage) terminates the marriage and resolves all issues of child custody, parenting time, child support, spousal support, division of property, division of debts, insurance, etc. A Legal Separation does everything a divorce does except when you are done, you are still married. A divorce requires a claim of a irretrievable breakdown of the marriage whereas a separation requires a claim of a temporary breakdown. The cost of each is about the same. A decree of legal separation may be later converted to a decree of dissolution.
What is meant by the term "no fault"?
Kentucky is a "No fault" state which means that anyone can get a divorce claiming nothing more than that the marriage has irretrievably broken down. Simply put, if you want a divorce and the other party does not, that's enough of a breakdown for a divorce. Normally the court will not permit evidence of misconduct or fault in granting a divorce; however, such evidence might be considered where child custody is an issue. That means that one spouse "cheating" on another will not impact the division of property or child support In Kentucky, fault may be considered in awarding maintenance or alimony to the spouse who is alleged to be at fault.
Should I move out?
Every case is different. If child custody will be an issue, it is usually not advisable to move out prior to your lawyer reaching a written agreement with the other side or a court granting a temporary order. Don't ever move without consulting an attorney unless in the most extreme circumstance such as domestic violence.
How does an annulment differ from a Divorce or Legal Separation?
An Annulment ends a marriage by "canceling" it and treating it as if it never occurred. Annulments are rarely granted and usually only where one of the parties was incapable of consenting to the marriage (underage or incompetent) or if consent was obtained by force or fraud.
Can I make my spouse continue my group health insurance after the divorce?
The simple answer is no. Normally insurance is provided to you as a "spouse." Once you are divorced, you no longer are a spouse and therefore are ineligible to continue on the group coverage as a spouse. That is one reason why some parties agree to a legal separation since they remain "spouses" when the process is done. You do have certain rights to continue your health insurance coverage, at your own expense, through your spouse's employer by enrolling in the COBRA plan. This extension period can range from eighteen months to three years, but there are stringent requirements related to the enrollment period and prompt payment of premiums. Similarly there are also options for CONTINUATION or PORTABILITY coverage which is similar to COBRA but also different. Application for PORTABILITY coverage is made directly to the insurance company and not to the employer. There is no time limitation but there may be a geographic limitation. As in COBRA coverage, there are stringent requirements related to the enrollment period and prompt payment of premiums.
What is the difference between Mediation & Arbitration?
Mediation and Arbitration are both alternative methods of resolving disputes sometimes known as Alternative Dispute Resolution. In mediation, you and your spouse sit down with an impartial third party (referred to as the mediator) to attempt to reach a settlement that is suitable to both parties. The agreement is not legally binding and typically requires the services of an attorney to prepare and file the settlement agreement. In Arbitration, you and your spouse have a hearing in front of an impartial lawyer (referred to as the arbitrator) to seek a ruling on all issues that are before the arbitrator. The ruling of the arbitrator is legally binding, just as if done by a judge, unless you appeal the decision to the Family Court. Arbitration will also require the services of an attorney. Jefferson county requires that parties seeking divorce go through mediation on all issues prior to going through a hearing.
How can I be more prepared for my first meeting with a lawyer?
As much as possible, gather current statements and legal documents regarding real estate, retirement plans and accounts, non-retirement investments such as stock accounts, checking and savings information, stock options, social security statements and all recent statements regarding all financial obligations. What you tell your attorney if specified, will remain confidential. Be sure you tell your attorney all of the facts up front in order to avoid an advantage by the other side, embarrassment, and often extra costs.
How is the amount of child support decided?
The Kentucky "Child Support Guidelines" are used to determine the amount of child support. The guidelines take into account the income of each parent, other children the parents have a legal duty support, work-related day care costs for the children, health insurance costs, spousal support, etc. Under certain circumstances, the court may be asked to ignore the guidelines.
Who will be required to pay child support?
Both parents have a legal duty to support the children. The Court can require one or both parents to contribute to the support of the children.
Can I withhold visits if I don't get support from the other parent or stop paying support if the other parent won't let me visit my child?
No. Support and parenting time are separate issues in that regard. Only a court can suspend the obligation and this will only be granted upon proof that you have had very serious problems obtaining your parenting time and there is no other alternative. Contempt is the typical method to address non-payment of support or denial of parenting time.
How long does child support have to be paid?
In Kentucky , a parent usually must pay child support until the child is eighteen years old. If the child is going to high school the support will continue to age 19. If the child is physically or mentally handicapped, child support may be extended indefinitely. Child support can end prior to age 18 if the child gets married, joins the military, or becomes legally emancipated. There are specific rules and requirements regarding children between the ages of 18-21 and it is wise to consult an attorney about those rules.
Is there a specific amount of time the non-custodial time the non-custodial parent will receive?
Each case is unique and the amount of parenting time ordered depends on facts such as the age of the children, time and scheduling requirements (based on the school year, for example) and the distance between the parents' households. Some counties have default schedules for your review. The typical schedule for many families is alternate weekends, mid-week contact, half the summer, half of winter break and alternating holidays such as thanksgiving weekend, holiday weekends, birthdays, etc. In other cases where the parents have the ability to communicate and coparent, they may share equal time such as alternating weeks.
What is the main difference between joint custody and sole custody?
The difference between joint custody and sole custody is the degree of rights that the non-custodial parent has in the decision making process for the child. Basically, joint custody is an arrangement wherein the parents legally share rights and responsibilities for major decisions concerning the child. These decisions could include the child's residence, education, health care, religious training, and other major decisions involving the child. However, the Court can designate one parent to have the sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions. For example an order providing for joint custody may specify one home as the primary residence for the child and provide a set parenting time schedule for the other parent.
If I agree to joint custody does that mean my child will spend 50% of the time with the other parent?
No. "Joint Custody" does not mean that the child has to live with each parent fifty percent of the time. Custody and parenting time are two separate issues. You and the other parent child share joint custody, you could provide the primary residence, and the other parent could have visitation to a visitation schedule (which typically provides for every other weekend, alternating holidays, etc.), or some other schedule which may better fit your needs. The visitation schedule is something that will need to be worked out whether you choose joint custody or sole custody.
So what does having sole custody do for me?
Sole custody gives tot he custodial parent the sole right to make the major decisions for the child. If you have sole custody, you and you alone would have the right to decide if you want your child to go to a public or private school, whether or not you want a particular medical procedure performed, or if the child would be raised a particular faith. Sole custody does not mean that you have to make these decisions without input from the other parent, but it does give you the right to do so.
What rights does a non-custodial parent have?
1. To inspect and receive school records and to consult with school staff concerning the child's welfare and education, to the same extent as the custodial parent may inspect and receive such records and consult with such staff;
2. To inspect and receive governmental agency and law enforcement records concerning the child to the same extent as the custodial parent may inspect and receive such records;
3. To consult with any person who may provide care or treatment for the child and to inspect and receive the child's medical, dental, and psychological records, to the same extent as the custodial parent may consult with such person and inspect and receive such records;
4. To authorize emergency medical, dental, psychological, psychiatric or other health care for the child if the custodial parent is, for practical purposes, unavailable, and
5. To apply to be the child's conservator, guardian ad litem, or both. Note: a guardian ad litem is someone who can sue on behalf of the child. For example, if a minor child was hurt in an automobile accident and suit needed to be filed, someone would have to sue on behalf of the child because he is not an adult.
What will my case cost? Why can't I get an exact quote for my case?
We never quote exact fees for cases. The reason for this is that it is impossible to tell how much your case will cost. Attorneys charge on an hourly basis. Our attorneys cannot predict how many hours will be spent on any given case in order to quote a fixed fee. In addition, no attorney can tell how much "fighting" the other side will do or how much negotiating will be necessary in a settlement. When you come into our office, the attorney will give you an estimate concerning your case if you ask for it. He or she will also tell you the amount of money that initially needs to be deposited into our escrow account. We use the money from the escrow account to pay your bills on a regular basis while we are working on your case.