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Bornstein & Oppenheimer, PLLC
Springs Office Center, Suite 40
950 Breckinridge Lane
Louisville, KY 40207 Telephone: (502) 895-8787
Weekends: (502) 551-7985
Fax: (502) 895-4336
(502) 895-9216 E-mail: billb@bornopp.com When Divorce is Near Many couples who are having marital problems think about getting a divorce. These couples naturally have many questions. Here are answers to some of the most often asked ones. Q. My spouse and I no longer get along. Do we need specific grounds to get divorce? A. No. Courts used to require that a marital wrong (like adultery or physical or mental cruelty) must have occurred before granting a divorce. Now, courts in all states permit no fault divorces. In a no fault divorce, a spouse only has to show the marriage has failed - he or she does not have to prove a marital wrong occurred. No fault laws make it hard to prevent divorce if either spouse wants one. Q. How do I file for divorce? A. To get a divorce, a complaint (or petition) along with several other papers must be filed in the proper court. There are "residency requirements" that must be met. These laws require at least one spouse to live in the state for a certain length of time (usually six months or a year) before filing for divorce. Q. What happens after the divorce action is filed? A. After the divorce action is filed, either spouse can ask a court for temporary orders on matters like spousal support and child custody, support and visitation. Also, if a spouse is harassing the other, a court can issue a "restraining order." After temporary issues are resolved, the parties work on resolving permanent support and custody issues. If the parties cannot agree on these issues, the court will decide. Q. How will our property be divided? A. Many couples decide for themselves how to divide their property. If you and your spouse cannot agree, a court will decide based on state law. In some states, courts consider various factors, including the couple's assets, the length of the marriage and each party's contribution to it, and then divide the property fairly. In other states, the couple's community property - the property either spouse obtained through his or her labor or skill during marriage - is divided evenly. Q. Can I get a legal separation? A. Yes. Some couples want to live apart, but for tax, religious or other reasons do not want a divorce. These couples can get a "legal separation." Like a divorce, the parties will resolve custody, support and property issues. However, a legal separation does not end the marriage. You cannot remarry unless you get a divorce. Q. If I want to get a divorce or separation, do I need to be represented by a lawyer? A. Emotions and complex issues are involved in any divorce or separation, so it's strongly advised to be represented by a lawyer. Each spouse should have his or her own lawyer, even if the parties are on friendly terms. A lawyer can advise you about property division, support, custody and other issues, and explain tax and other consequences regarding these matters.
Should You Have A Premarital Agreement? When a couple decides to marry, they have many decisions to make. A key legal decision they must make is whether to have a premarital agreement. A premarital agreement is a contract made by a couple before marriage. It is usually used to say how property will be divided in the event of divorce or death, but it can cover many other issues in the marriage as well. Premarital agreements are most commonly used in second marriages when there are children from a prior marriage, or when one party to the marriage is a lot wealthier. There are several benefits to having a premarital agreement. Working out difficult issues in advance can help avoid problems later. Also, a premarital agreement can help protect an inheritance to a child from an earlier marriage. Finally, if a divorce does occur, the premarital agreement may make it go easier since some key issues will already have been decided. There are also disadvantages to having a premarital agreement. One is the discomfort in addressing issues of divorce before the marriage. Another is that there's no guarantee a court will uphold the agreement. Also, even if an agreement is upheld, there's no assurance the entire agreement will be upheld. For example, provisions that address child custody or child support issues are not binding on a court, since the child's best interests are the deciding factors. There are several grounds for invalidating premarital agreements. They vary from state to state, but generally include: one side was pressured into signing; the agreement was not "fair and reasonable" when made, or when it's to be enforced, it is so one-sided that it would be unfair to uphold it; or one party hid important information.
Premarital agreements are becoming more common due to the high number of divorces in our society. Whether a premarital agreement should be used depends on the circumstances of each case. If couples are considering a premarital agreement, they should seek legal help. Laws regarding making premarital agreements are complex, and each party should be fully aware of what he or she is signing.
Tips for Making Child Custody Decisions Few situations are as stressful as a family breakup, and everyone involved needs sympathy and support. It's understandable there is seldom much thought given to the plight of the family court judge, but consider it for a moment. Unless the parents can agree, the judge must decide what custody arrangement is in the best interests of children he doesn't know. The decision will inevitably disappoint at least one parent and can create resentments in several people. And in many cases no thoughtful judge can be very confident that his decision is the best one. Because of this, courts encourage parents to work out their own arrangements. Most judges will ratify any custody arrangement that both parents agree on. In an increasing number of states, mediation is mandatory when the parents can't agree. Contrary to what many people believe, lawyers do not relish bitter custody disputes. Lawyers almost always encourage negotiated agreements and can be invaluable in reaching them. They know where other people's arrangements have broken down, are familiar with complex aspects such as taxes and out-of-state travel, and will assure that nothing critical is overlooked. If you're facing separation or divorce and have minor children, working out a good custody arrangement is likely your top concern. Here's some information that can help: Seek counseling first. Social service agencies, churches, and friends are good sources of referrals as well as help. If your spouse won't participate, go alone. Get legal advice early. Do not move out of the house, start a divorce action or reach a custody or property agreement without consulting a lawyer. If you're considering divorce, your and your spouse's interests are different enough for you to need expert advice about your rights and obligations. Think of your lawyer as an information source. You need to know the law and what a judge is likely to do in order for you to arrive at a fair agreement. The standard for awarding custody is always "the best interests of the child." Traditionally, custody by the mother and visitation and financial support from the father has been the rule. Today, joint custody is preferred in many states and commonly ordered in the others. Joint custody is flexible. Joint custody does not mean a child must spend equal time with each parent. There's joint legal custody and joint physical custody and you can have either or both. Joint legal custody means sharing responsibility for key decisions about the child's health, education and welfare. Joint physical custody means the child spends time living with each parent on a regular basis. Custody arrangements are easy to change if you agree. Changes need the judge's approval. That's normally routine if you both agree. If you don't agree, consult your lawyer about your options, but don't violate a custody order. You can be jailed, and you can lose what custody you have. Custody and support are different. Don't prevent visits or violate a custody order because the other parent is behind on child support. See your lawyer instead. The same goes if the other parent scuttles a visit. Keep up the support payments and see a lawyer if you can't work it out.
Child Custody, Support and Visitation: Answers To Often Asked Questions Separation and divorce are common today. Often, children are involved. Here are answers to common questions about child custody, support and visitation. Q. Are there different kinds of child custody? A. Yes, "physical" and "legal" custody. Physical custody is who the child lives with. Legal custody is who makes decisions about the child's health, education and other legal matters. Many states don't treat these separately, but just refer to "custody," which includes both types. Q. What is the most common custody arrangement? A. Joint custody. Here, the child spends time living with each parent on a regular basis. In joint custody, both parents share decision making. Q. Who makes custody decisions? A. These decisions are made by a judge. But if the parents agree who gets custody, the judge usually accepts their choice. If they can't agree, the court decides. It bases its decision on the child's best interest and considers several factors, including the child's age and health, the parents' lifestyle, prior living arrangements and the child's preferences. Q. If my spouse gets custody, do I get to spend time with my kids? A. A court can set a visiting schedule. The court may need to do this if the parents cannot cooperate with each other. Q. Who sets the amount of child support? A. The court, usually under guidelines developed by the state. Some states give judges wide leeway in setting the amount, while others do not. Most states' guidelines specify factors to consider in determining the amount of support. These include the amount of the parents' income and the expenses needed to raise the child. Q. I pay too much child support. Can I get it reduced? A. You can ask a court to lower the amount of support. You will need to show there are changed circumstances to justify the reduction, such as a significant cut in your earnings or a showing that the parent receiving support now earns more money. Q. If I don't pay child support on time, what happens? A. If it's truly an accident and happens only once, little may happen if you fix it fast. But if you fail to pay, your wages can be garnished and your bank account or other property can be seized. Q. My ex stopped paying court ordered support. What should I do? A. Consult your lawyer. Your lawyer may first try to work it out with your ex-spouse. If this fails, your lawyer can take the other steps permitted by law to collect unpaid support. Q. Can I refuse to let my ex see the kids for failing to pay support? A. Not recommended. Cutting off visits may cause you to lose custody, and may hurt the kids. Q. How long must I keep paying child support? A. Until the children become adults, or for the length of time specified in the court's child support order. It could state other events when the support ends earlier.
Update Important Documents After a Divorce Couples who get divorced face many important issues: how to divide property, how much spousal support to give, and if children are involved, who will get custody of the children and what visitation rights the other spouse will have. Attention paid to these issues can cause a person to forget to update important documents the divorce affects. Here are some of the main documents to review and consider updating if you are recently divorced: Will: You may have made a will during your marriage or before. Since your family circumstances have changed, you may want to change how your property will be distributed. Also, if your spouse was named as executor (the person who will administer your estate during probate), you may want to name a new one.
A will can easily be changed. You can prepare a new will. Or, you can prepare a "codicil" which amends your existing will. Living Trust: If you have a living trust, you should review it to see if changes are needed regarding who will receive property and who will manage the trust. Many living trusts are revocable and can be changed. Life Insurance: Review your life insurance policy. If you named your spouse as beneficiary, you may want to name a new one. In most cases, it is relatively easy to change the beneficiary of a life insurance policy. Power of Attorney: You may have created a "durable power of attorney" letting your spouse manage your business affairs if you become mentally or physically disabled. Or you may have created a "durable power of attorney for health care" letting your spouse make health care decisions for you. In both cases, due to your changed circumstances, you may want to give this power to someone else.
Powers of attorney can be changed or revoked at any time while you are competent. However, there are certain requirements for changing them. Bank Accounts: Make sure your ex-spouse is no longer an authorized signer on your bank accounts, mutual funds or money market funds. Government Records: If you move because of the divorce, remember to change government and other records (such as your drivers' license and voter registration card). Credit Cards: If you had credit cards issued to both you and your spouse, change them or get new cards issued. Corporate Minutes: If you ex-spouse is an officer of a corporation you own, you may want to designate a replacement.
These are just some of the main documents to review and consider updating after a divorce. Legal help can be obtained to review and update these and other documents affected by a divorce.
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