Post-Divorce Questions under Kentucky Family Law

My husband is not following the property settlement agreement.  What are my options?

Noncompliance with the terms of a property settlement agreement in a divorce or custody case is a common issue.  Unfortunately, people fail to meet their obligations after the divorce decree is granted.  In Kentucky, the settlement agreement is an enforceable order.  Failure to obey court orders can result in fines, court costs, attorneys’ fees and even jail.  In some cases, wages can be garnished or funds seized from bank accounts.  The proper relief depends on the violations and the particular Judge or Court.  In order to evaluation your options under Kentucky law, it is necessary to see the settlement agreement and meet with the client.  You may call the Family Law Group at Goldberg Simpson so we can explain your options.

My income (my ex-spouse’s income) has dramatically changed.  How does this affect my child support obligation.

That is a very good question.  Many child support recipients miss out on getting a possible increase in child support simply because they fail to ask this question or don’t want to go back to court.  Similarly, many child support payors often find themselves in substantial child support arrearages that could lead to criminal charges simply because they fail to ask this question or don’t want to go back to court when they experience a dramatic decrease in income.  The reality is that, if either party experiences a dramatic increase or decrease in income, there is a chance that child support could be modified.  As a general rule, under Kentucky law, child support may be modified if the modification would result in a 15 percent change in the amount under the Kentucky Child Support Guidelines.  However, every case it is unique so it is important to have the issue evaluated by an experienced family law attorney to ensure that you receive sound legal advice and to ensure that your interests are properly represented.  Contact a member of the Goldberg Simpson, LLC family law team at (502) 589-4440 to have your specific situation evaluated.

 My ex-spouse has remarried.  How does this affect my child support/maintenance obligations.

In Kentucky, remarriage can affect the financial obligations of the former spouses.  In most cases, remarriage does not affect child support payments. However, there are important exceptions to this general rule.  These exceptions are usually based on the specific facts of the case.    The rules are different for maintenance or alimony.  Generally, speaking remarriage of the party paying spousal support does not impact the amount of the support.  However, remarriage of the person receiving the money can impact the amount.  Additionally, cohabitation can impact the amount paid.   As in most instances of family law, the particular facts make a huge impact on the outcome.  It is important to have an experienced lawyer by your side to navigate these cases.

Can I date after a divorce action is filed?

In a word, “yes.”  After a divorce action is filed, you can date other people.  However, before you begin dating again, you should first ask yourself whether it would be detrimental to the children to begin dating while the divorce action is still pending.  Further, you should be careful not to spend marital funds on dates.

Mostly importantly, though, you should not get remarried until you obtain a Decree of Dissolution of Marriage, otherwise the new marriage would be invalid and annulled.

What does “separated” mean?

“Separated” can mean two (2) different things –

1)     One of the statutory requirements for obtaining a divorce in Kentucky is that the parties must have been living “separate and apart” for at least sixty (60) days.  This essentially means that the parties must not have engaged in sexual relations for that period of time.

2)     In lieu of a divorce, the parties may seek a “legal separation,” which is essentially the same as a divorce, except the parties cannot remarry.  Individuals who are legally separated could possibly remain on each other’s health insurance policies and retain the right to file a joint tax return together among other things.

What is non-marital property?

Recognizing non-marital property is an important step in the Kentucky divorce process.   Generally speaking, Kentucky law provides for non-marital property to be restored to the party that brought it into the marriage.  However, the identification of, and tracing of, non-marital property can create very complicated issues that require highly skilled legal representation.  This is particularly true in long-term marriages and those involving large marital estates, real estate or commingled accounts.  Goldberg Simpson family law attorneys have years of experience in cases involving such issues.  You should contact a member of our team to assist you.

 Who gets the income tax deduction for child?

In the event a party has sole custody of the child(ren), the sole custodian has the right to claim the dependency exemption on their tax return.  In the event the parties have joint custody and are operating under a “shared” parenting schedule (i.e. – the parents are equally, or close to equally, dividing time with the child(ren)), then the issue of who can claim the dependency exemption must either be litigated or settled upon at mediation.  Typically, Courts order the parties to alternate claiming the child(ren) as dependent(s).

 Do I have to refinance the house if I keep it?

If your former spouse’s name is on the loan, then yes.  The ultimate purpose of a divorce is to sever all ties by completely dividing all of the property and debt.  Therefore, one party may not retain the residence as their own, exclusive property, yet keep the other spouse liable on the debt.

 Can my husband make me take my maiden name back when we get divorced?

As a general rule, petitions for name changes fall within the jurisdiction of probate court in Kentucky.  However, there is an exception for persons going through a divorce.  When a name change request is heard in conjunction with the entry of a Decree of Dissolution of Marriage, the Circuit Family Court generally has the authority to effectuate a name change of the wife.  In Kentucky, that request generally must be made under oath by the wife.  Because every case is unique, you should contact a Goldberg Simpson family law attorney at (502) 589-4440 to discuss your specific situation.

 If I have been planning to retire, should I wait to file for divorce until after I retire?

Retirement and divorce can be complicated matters.   The answer on whether one should postpone the divorce is based on a wide variety of facts.   The facts are unique to each situation.  Under Kentucky law, retirement can affect maintenance or alimony paid and received.  It can also have implications on child support and property division.   In order to have a full evaluation, it is best to meet with an experienced domestic lawyer who can give answers to your questions.  It can be dangerous to rely on “word of mouth” answers from friends or family.

If I receive a bonus during the pendency of the divorce action, will I have to share it with my spouse?

Under Kentucky law, income and assets are considered to be marital in nature.  This rule, generally, would include bonuses and all other income from any source.  However, judges are not required to divide assets 50/50 or equally.  There are also exceptions to this general rule.    The rulings of one judge can differ from other judges with the same fact scenario.  It is best to consult a Kentucky divorce lawyer to navigate these water

 Can I change my child’s last name

Under Kentucky law, any person over eighteen (18) may apply to have his or her name changed.  As a general rule, both parents have to be in agreement to change a child’s name.  However, every case is unique and there could be circumstances in which a name change would be granted.  Members of the Goldberg Simpson family law team have accomplished names changes for minors in various situations.  To have your specific situation evaluated, you should contact a Goldberg Simpson family law attorney.

Will I have to pay for my children to go to private school?

Under Kentucky law, the obligation to support a child generally terminates when a child reaches the age of eighteen (18) or graduates from high school but generally not beyond the completion of the school year in which the child reaches the age of nineteen (19).  As a result, Kentucky Courts generally do not require parents to pay for college.  However, if you have a highly skilled attorney who is able to negotiate the inclusion of such an obligation into a divorce agreement, the Kentucky Courts will generally enforce the obligation to pay for college.  It is critical that this issue be addressed prior to the entry of the Decree of Dissolution of Marriage so it is very important that you have experienced legal counsel negotiating on your behalf.  Contact a member of the Goldberg Simpson family law team at (502) 589-4440 to discuss your specific situation. 

 What is a Qualified Domestic Relations Order?

A Qualified Domestic Relations Order (sometimes called a “quadro” or “Q-dro”) is a special order entered by a family court to divide retirement assets or pension plans.  As pensions and IRA’s are governed by federal law, it is important that they be divided in the right manner.    Following the settlement or judgment of the Court, the asset must be divided pursuant to the agreement or order.  The QDRO is simply the method to accomplish that.   It is important that the QDRO be done correctly.  It must comply with the regulations of the plan administrators.  Failure to do so may result in the asset being treated as taxable or simply a loss of the asset.     Some people fail to recognize an IRA or pension plan as having the value that it actually does because it is not accessible at present.  However, for many, it is their most valuable asset.   It is important to have experienced counsel to assist in having the proceeds divided correctly. 

When does a Private Investigator help when getting a divorce in Kentucky?

When undertaking a divorce or thinking about one, one question is whether experts, including Private Investigators, are necessary and beneficial.  There is a difference between a PI that can help salvage a marriage and one that can help in the divorce process.  We routinely use Private Investigators in cases where the facts can make a difference, such as cases involving child custody and child protective issues.  With regard to financial issues, there are often other experts that can provide greater value for the investment.  In many case, it is best to hire the right private investigator and lawyer months before filing for divorce.  By retaining the right team, evidence that can be used in court can be obtained before it is too late.

My son is a senior and we have been married 30 years and dad wants a divorce.  Two older boys in college.  Does my son still in high school have to spend time with his father when he doesn’t want to?

Visitation with older children can be a difficult issue.  Although technically the Family Court has jurisdiction over visitation with all minor children, it becomes increasingly difficult to enforce those orders when children are 17 years and can drive.   (There are a number of myths that children can choose not to visit or where they live when they turn 13 or 14 or some other certain age.  These are all false.)    As a practical matter, Kentucky courts want to create a situation where the parents and the Courts maintain some control over the visitation schedule so that teenagers are not ruling the household.  Additionally, visitation with a father may provide a much needed break for a custodial mother.    There may also be considerations relating to the maturity level of the teen and whether there are safety and other concerns (such as drugs and alcohol) in the father’s home.   In these cases, the facts often play a huge role in the correct answer.