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What is a Domestic Relations Commissioner?

A Kentucky Domestic Relations Commissioner handles family law cases.  We no longer use them in Jefferson County, but other counties still have them.  They function much like a judge in that they hear evidence, listen to the attorneys and clients, have the power to set child support and perform other related duties.

One of the advantages to having this role in the court is to add some relief to already crowded dockets.  During a divorce proceeding, there are numerous motions, briefs, hearings and other activities that dominate the available time of each judge.  There are only so many calendar days available, regardless of the number of active divorce cases either on-going or which need to be added to the schedule.

The Domestic Relations Commissioner serves as a relief valve for both the judges and the litigants.  Once the divorce process has begun, people typically don’t want to drag it out for months and years.  This is especially true when it’s only due to judicial time constraints.

One of the ways Jefferson County Family Court has successfully addressed this situation is by requiring an initial attempt at mediation, before the case is actually presented to the judge.  Often, you can reach agreements on specific areas of the divorce, such as property division, child support, visitation, maintenance and other related areas.  It’s what I include as one of the advantages of mediation.

If the two parties can reach agreement on any or all of the necessary issues, the time required by the judge (and the control you turn over to the judge) is significantly reduced.  One of the benefits of reaching these agreements is that you’ll incur fewer attorney-related charges due to trial preparation, discovery and other activities.  Mediation can be a significant cost-savings.  In counties using a Domestic Relations Commissioner, there may also be an option of mediating prior to involving the Commissioner.

Should We Involve a Counselor?

When a client hires me to represent them in a divorce, they sometimes ask, “Should we involve a counselor?”  My answer is an immediate, “YES!”  In fact, if possible, that counselor should be involved prior to actually beginning the divorce proceedings.  The emotional, financial and other important issues require the proper perspective and clarity so that the individual can focus and emerge in a healthy state of mind.  While we can’t go back, our mindset can help us to move forward.

The divorce process, at its most basic level, is an unwinding of various segments of a relationship.  Think about it.  During your marriage, you’ve created a financial segment (e.g. your bank accounts, life-style, investments, debts, etc.).  You have a property segment which may involve a house, car (and car loans), and other substantial, physical assets.  You may have created children together, which involves educational and extracurricular expense segments.  There are healthcare considerations in terms of insurance coverage and other related issues.  If you’re going to navigate the process, as well as the decisions involved, a counselor can definitely add value.

Professional athletes, business executives, actors/actresses all spend time planning for success.  A big part of that is visualization focused on what the desired outcome will look and feel like, once it’s been achieved.  Many of these high-performers have coaches or therapists working with them to unlock and unleash their potential.

When you are preparing to go through a divorce, you need to focus on the outcome.  This has the potential to be a very intense and difficult experience.  The good news is that it doesn’t have to stay that way.  Should we involve a counselor?  Absolutely, because change is difficult for most people.  As the various segments are being unwound and reestablished, dealing with those transitions are going to require an adjustment phase.  How you approach the process and cope with those adjustments is going to be critical to your ability to survive and eventually thrive.

Infidelity and No-Fault Divorce

Jefferson County, and the rest of Kentucky, has a system of no-fault divorce.  This means that either party can file for a dissolution of marriage, regardless of the issues or factors. The current system allows for divorce to be for any reason, or no reason at all. While this makes the process relatively easy, the emotional impact is still very real and painful.

Hollywood movies such as Kramer vs. Kramer and War of the Roses portrayed characters involved in highly emotional and sometimes devastating divorce litigation.

When infidelity is involved, the “faithful” spouse may look at divorce as a way to get back at the offending spouse.  However, as they quickly learn, without a prenuptial agreement specifically addressing the terms, infidelity and no-fault divorce really are the same as a couple who simply decides to part ways.  Adultery has no specific bearing on the outcome of the child-support, child custody, maintenance, property division or other issues.  Regardless of why the divorce is being pursued, the actual reason doesn’t matter in a no-fault system.

As an experienced Louisville divorce attorney, I’ll often advise clients that the way to heal is to look forward, not backward.

Divorce is a process, not a tool.  It would be more productive (and effective) to consider a therapist, exploring a hobby, finding new surroundings or even a new job as a way to help you to focus on moving forward.  The emotional toll of a divorce is significant.  When the pain of adultery is present, seeking a divorce isn’t the cathartic cure many initially assume it will be for them.

If the marriage is irretrievable, divorce is only the process to dissolve it.  Those raw emotions may still be present.  Finding healthy ways to deal with urges to seek revenge for the betrayal can’t be pursued as part of the family law system.  Infidelity and no-fault divorce have only a cause and effect relationship.  It would be the same if one spouse wakes up and suddenly decides they don’t like the other spouse’s haircut.  Both reasons are valid and equal in the eyes of the law because Kentucky has a no-fault system.  Regardless of your personal or religious views, either spouse only has to file for a divorce for the process to begin.  The court doesn’t consider the reason(s) why.

Divorces Involving High Net Worth Individuals

Dealing with divorces involving high net worth individuals are complicated by the sophisticated financials.  Elaborate investment portfolios, business income and other factors require the attorneys to sometimes involve experts to truly determine the actual income a person generates, which is used in child support and other calculations.

Financial issues aren’t reserved for only the higher-income individuals.  If someone is self-employed and receives cash payments on a regular basis, it’s quite common for some of those earnings to go unreported.  The result is the tax returns may not reflect the actual income earned.

The attorneys and the court have to work carefully to establish the proper baseline for the various payments the individual may be required to make.  This issue is further complicated because the Kentucky Child Support Guidelines top out at incomes of $15,000 per month.  If the income exceeds this threshold, having a strong negotiator as an attorney will be absolutely in your best interest.

In this brief video, I discuss some of these issues and provide a few tips as to how those unreported sources of income may be discovered.

Divorces involving high net worth individuals may also involve the valuation of stock options, company ownership interests, ownership of various properties (both real and personal).

As an attorney and licensed mediator, I strongly recommend pursuing mediation in these types of cases.  One advantage is that you’re more likely to keep these highly sensitive financial issues out of the court record.  Another advantage is that both individuals can agree to establish any type of agreement for whatever reason.  There are advantages to moving efficiently through a divorce process.

I’ll leave you, once again, with this thought, regardless of your income levels, in a mediation, you maintain the maximum level of control over the final outcome.  If your case goes to trial, a judge will make decisions on your behalf.

Communicating with Your Ex-Spouse

Even after a divorce, especially one that is highly contentious, communicating with your ex-spouse can be extremely difficult.  There are deep emotional issues involved.  Poor communication may have been one of the core reasons for the divorce in the first place.  Unfortunately, how you communicate with your ex can have a lasting impact on your child.

There are apps and other methods parents can use to keep up to date on issues related to school, extracurriculars, doctors and many other issues.  Technology can be that bridge to help in effectively communicating with your ex-spouse, when it’s seemingly impossible to do so in person.

In this video, I describe a child’s memory of post-divorce holiday visitation.  It doesn’t paint the brightest of pictures.

The fact remains, even after a divorce, that both of you have to figure out a way to communicate, at least about the important subjects.  When tempers are still hot and emotional wounds still raw, it can be almost impossible.  This can get better with time, but it’ll take practice and a willingness to focus on what’s ultimately best for your child.  Even if your ex tries to make a snarky comment, or shows up with the new partner, don’t let it rattle you.  You have the power to rise above it.  If it’s a situation when your child is present, take a deep breath and realize you can decide whether your child sees the strong and confident you, or another version.

Let me take this opportunity to again stress that mediation is another way to handle the divorce, while minimizing the anger and pain of a protracted divorce trial.  In Kentucky, it is still possible for a couple to get divorced without having to step into the courtroom.  It’s one of the best ways for a person to maintain control of the decisions, because she/he is actively involved in the terms and the final agreements.

Remember, communicating with your ex-spouse can be a difficult task, but it doesn’t have to be that way.  More importantly, your child is still watching both of you.  Set the best possible example you can whether that involves face to face or technology-based communication.  Either way, you’ll be happier you did.

 

Where Does a Judge Interview a Child?

In those circumstances in which a child’s comments will be at least heard, parents often want to know, “Where does a judge interview a child?”  Followed by, “Can I be in the room?”

This doesn’t happen in every circumstance.  However, when it does, the child will be interviewed alone.  It’s usually done to avoid any undue influence the parent(s) in the room may have on the child’s actual comments.  They may be afraid to give an honest answer because it might be hurtful to the parent.

Typically, the interview will take place in the judge’s chambers (her/his actual office).  Both lawyers are generally present.  The judge will usually begin by asking relatively simple questions to allow the child to feel more comfortable in the unfamiliar surroundings.

As a family law attorney, I’m in favor of giving the child the opportunity to state opinions about the situation, preferences and/or concerns.  I’d like to have more conversations involving the question, “Where does a judge interview a child?”

We often forget that when a divorce happens, it’s not just the parents who are going through it.  The children are absolutely impacted.

Even though Kentucky doesn’t give the child the right to make the custody determination, if the child is mature enough and able to articulate sound reasons or opinions, I believe she/he should be heard.  Now, the question of maturity can be subjective, but it’s obvious to the judge when the child is articulate enough to state an opinion.  The important part of this is allowing the child to speak honestly.  As emotional as divorces are, a parent can exert influence on the child even without actually trying.

It’s also quite possible that the child may be able to emotionally recover from the shock of a divorce, if she/he knows the was an opportunity to speak openly with the judge.  Nevertheless, counselors and therapists should be considered as safe resources to help the child cope with the sudden changes.

Will the Court Interview My Child?

During a divorce proceeding, there are many things and experienced family law attorney will do to position her client favorably, argue for rulings and to work diligently to achieve an equitable outcome.  These are the things you’d expect of your attorney.

One approach that’s often asked is, “Will the court interview my child?”  This is a mixed bag, for a number of reasons.  It’s quite possible that your child is articulate and has a definite preference regarding the various issues.  However, the court is also aware that a child can potentially be manipulated (both emotionally and economically).  There are times when determinations need to be made regarding whether the child is expressing her/his actual feelings.

In a typical civil procedure, the attorneys would call witnesses and experts to testify.  In family court, it’s not uncommon for experts and third-party evaluators to testify regarding specific issues, reports and recommendations.  The risk to putting a child on the stand is that you might be surprised at what actually is said.  Sometimes this can work in your favor, but it may also work against you.

Family law judges, as well as both attorneys, understand that a child is caught in the middle during a divorce.  The world has she or he knew it is changing rapidly.  Emotionally, the child may experience natural instincts.  One of those, especially if you ever raised a teenager, is for the child to strictly consider what’s in her/his best interest.  One of the primary risks we need to consider is whether the testimony will be reliable, or whether the child is making statements to ensure she/he gets to live with the parent who might enforce less discipline or has more goodies to offer.  While these temptations may seem terrific to a child, they don’t always benefit the child in the long run.

If it’s early in the case and my client asks, “Will the court interview my child?” I have to admit that we don’t know yet.  The court isn’t required to do so.  As the facts are collected and we get a feel for what the primary issues will ultimately be, I’ll have a clearer picture as to whether or not that might happen.  Again, could it?  Yes.  Will it? Potentially.

The Emotional Toll of a Divorce

The emotional toll of a divorce can often be much more than people anticipated.  Yes, there are those times in which one party sees the dissolution as a ticket to her/his new beginning.  While that may be the case, when you consider the stress and the disruption divorce causes, many people struggle – at least for a while.

Unfortunately, the divorce process involves a level of conflict where money and children are involved.  You’ll find yourself asking how you ever fell in love with that person in the first place. 

How you exit the marriage, when children are involved can determine how manageable the next several years are going to be.  Remember, like it or not, you’re going to have to communicate with your ex-spouse on matters involving schooling, extra-curricular activities, medical issues, holidays and a whole host of other issues.  Even though you’re no longer spouses, you are still parents.

Another issue involved is the breaking of extended family bonds.  If the marriage has been ongoing for a number of years, it’s quite likely that you’ve developed relationships with the extended family of your spouse.  The breakdown of the marriage, more often than not, also brings with it the breakdown of those extended bonds.  The disruption, and potentially the loss of these relationships adds to the emotional toll of a divorce.  After all, these are often the people with whom you spent holidays, vacations and other important life events.

I was interviewed on CNN about this exact issue.

It’s important that you find a healthy outlet for your stress and anger.  Consider joining a gym.  Take up a new hobby to occupy your mind and give you time to simply exhale.  You may consider going back to school as a way to channel that energy.  Whatever it is, focus on something that will help you to meet new people and inspire a sense of self-confidence, self-worth and fulfillment.

The emotional toll of a divorce might feel overwhelming.  Even so, it’s important to realize that what you’re feeling right now is temporary.  Wounds heal.  Feelings change.  New people enter your world.  Take your time in deciding what’s right for you.  Then, most importantly, take those first few, but important, steps in discovering and defining the new you.

Does the Child Have Input into Custody Decisions?

When a couple files for divorce and children are involved, child custody issues arise.  It’s not uncommon for clients to ask, “Does the child have input into custody decisions?”  Basically, do their child’s wishes relating custody play into the judge’s determination?  There’s also a common misconception surrounding this question.

Judges normally make decisions based on the current laws and where discretion is allowed, they attempt to make decisions based on the best interest of the child or children.  In deciding which parent should have physical custody, there are a number of factors to be considered.

Initially, one of the parents may concede that it would be better to have the child live with the other parent.  Visitation and other co-parenting issues could then be determined and agreed upon.

However, there are times when both parents are open to physical custody.  It’s possible that one parent believes the child has a strong preference.  However, in Kentucky, the law doesn’t actually consider the child’s direct input.  So, does the child have input in custody decisions?  No.  If one side attempts to prove that the child wants to live with them, it can be dealt with as hearsay.

It’s fairly difficult to win a motion based on the child’s preference (either real or assumed).  There seems to be an urban legend (e.g. misconception) that once the child becomes a teenager, the court will listen to his/her opinion.  This simply isn’t true.

The more successful way to get a child’s preference entered into the record may be to have a therapist document why it would be more beneficial for the child to live with a specific parent.  The therapist may ask the child directly.  Based on the child’s response, the therapist would then have to substantiate how and why this would be beneficial to the child.  Some are hesitant to go to far in this area.  However, expert testimony is often relied upon by the judge, especially when confronted with complicated matters.

As I’ve written in previous posts, there is always the option of mediating this decision to avoid having it left up to the judge.  There’s also the possibility of filing a post-decree modification to change the primary custody, should circumstances merit a reconsideration.