Lexington Family Law

I wanted to post a brief follow-up to Paternity Pandemonium. Mr. Rhoades wrote a comment to that post that I encourage everyone to look at. I also wanted to link to TIME online article “Despite DNA, Dad’s Paternity Denied” that was provided to me by a reader. The article does not quite get the nuances of the law correct, but it gives more of the history and highlights the two broad views of this issue.

One camp is the Biology is Paternity camp which, in its extreme, denies any meaning of marriage in regards to children born during the marriage. Here, if one donates DNA, then some legal right is deemed to have arisen out of a single moment despite violating something every culture recognizes and values - a marriage. Usually in our jurisprudence, one does not get the benefit or gain from doing something wrong. However, we have decriminalized adultery and seduction while also turning to no-fault divorces. So, those in this camp would argue, there was no “wrong” done here in the eyes of the law and the courts should not be moral arbiters of such sexual behavior. Besides, the argument proceeds, it is not about punishment or equity, it is about a new life and what is best for that child.

The other camp would be the Sanctity of Marriage camp which, in its extreme, denies a biological father any standing to be in his child’s life. Here, the argument focuses on the preservation of the marriage and the assumption is made that the ongoing presence of the biological father will destroy what is already tenuous. Some would argue that the child should never know his genetic origin because it would be harmful to know he or she is the product of an illicit affair only creating an insecure sense of his or her place in the family.

As a father, I know I would not want to be denied contact with a child I fathered. As a husband, I understand protecting my family from those outside. This is why the SCOKY decision ultimately rests on the wording of a statute. Those of that opinion pulled into the safe harbor of avoiding the appearance of judicial activism by focusing on the exact language of the relevant laws. By doing so, they essentially said, this is a matter to be decided by the people through their representatives in the Kentucky General Assembly. That is where this debate really belongs.

Mr. Rhoades plans to appeal to the U.S. Supreme Court, but I will be surprised if he wins. This is because the Kentucky decision is about subject matter jurisdiction and not about whether Mr. Rhoades is the biological father or not and the U.S. Supreme Court will most likely defer to the power of the State to determine such things. So, only the General Assembly can change the outcome for future Mr. Rhoades.

As for me, the one thing I am confident of is that our judicial system should not be morally mute and that there is basic right and wrong outside of the confines of our laws (there are varying degrees of judicial activism and I believe it should be constrained to areas where statutory laws are silent). I also tend toward the Sanctity of Marriage camp and believe that the marital union, which remains a spiritual union and not merely a civil matter in my mind, trumps biology. My hope for Mr. Rhoades is that he recognizes and atones for the damage he did by participating in an extramarital affair. My hope for baby JAR’s parents is that they are convicted that JAR’s interests are paramount and wrestle with whether denying him his biological father serves those interests best. I doubt that would be the wisest course of action, but the burden is upon them to arrive at the decision. I have these hopes because even though I believe that courts have moral authority where statutory law is silent, the most just results are often found outside the courtroom and they often come out of humility rather than force.

A recent Kentucky Supreme Court (SCOKY) case has created quite a stir in the webdom. In J.N.R. & J.S.R. v O’Reilly, 2007-SC-000175-MR (April 24, 2008)(to be published), SCOKY rebuked a man’s attempt to establish that he was the biological father of a child born in the marriage of the appellants. Apparently everyone is this case has a first name starting with J and a last name beginning with R, so this might get a little confusing. Here is the scorecard: JGR is the man trying to establish that he is the biological father and obtain a custody status, JAR is the child in the center of the contest, JNR is the mother/wife, and JSR is the legal father/husband.

JNR and JSR are married when JAR is born giving rise to the presumption that JSR is the father of JAR. JGR apparently engaged JNR in an extra-marital affair and believed he was the biological father of JAR. JGR apparently had DNA evidence that proved him to be the bio-dad and he had even had some visits with JAR. Despite the injury to the marriage, there was apparently some mighty powerful affection remaining and so JNR and JSR wanted to make a go of it and did not want JGR interfering. JGR, displaying persistence that would be admirable in other circumstances, filed a petition in Jefferson Family Court to establish paternity, custody and support. The family court allowed the action to proceed and also ordered some time-sharing. JNR and JSR filed a Writ of Prohibition with the Kentucky Court of Appeals (COA) and then with SCOKY when the COA failed to issue the writ.

A Writ of Prohibition is an action that can be taken when a lower court is about to do something that they really have no business doing (lack the legal authority to do) OR will cause irreparable harm to one or more of the parties if they are allowed to do it anyway. In this case, if JGR was allowed to establish a psychological bond with baby JAR, who was 3 months old, then there would be no way to undo it without additional harm to JAR. If JGR was allowed to establish paternity, then arguably, irreparable damage would be done to the marriage. The COA refused to issue the writ to stop the paternity proceeding because JNR and JSR failed to show irreparable harm to the marriage, but they did stop the visits. JNR and JSR then took their Writ to SCOKY who granted it and stopped everything.

JNR and JSR had a pretty smart lawyer who argued that the Family Court was acting OUTSIDE its authority and thus no irreparable harm showing was necessary. The reason that SCOKY gave for issuing the Writ of Prohibition on the paternity action was that the Family Court lacked subject matter jurisdiction to hear the case. In other words, SCOKY agreed that the Family Court was acting outside its authority. This is significant because the decision, arguably, stands on statute alone and not on potentially shifting public policy. So, the Kentucky legislature would have to pass new legislation granting family courts jurisdiction in such a situation (unless a challenge to the existing statutes’ constitutionality is brought and won which is doubtful). The decision also suggests that even if the mother had initiated the action, the legal father/husband (or vice versa) could stop the matter from ever being heard unless they could establish that the marital relationship had ended (at least show no sex) ten months prior.

The case itself provides a more in-depth analysis of the statutes in play, but for our purposes, the whole thing turns on the use of the phrase “born out of wedlock” in the jurisdictional statute KRS 406.051. A child born to a married woman can be “born out of wedlock”, but only with a showing that the marital relationship ceased to exist ten (10) months prior to birth of the child. JGR failed to make a showing that JAR was born out of wedlock. Kentucky’s KRS 406.051 does differ from the 1960 Uniform Act on Paternity by narrowing the definition. This evidences the public policy espoused by the General Assembly for the protection of the marriage over those of the contributor of chromosomes. This public policy has shown signs of shifting in recent years coinciding with the more accurate DNA testing as compared to simple blood typing from decades ago.

SCOKY also rejected the argument that subject matter jurisdiction could arise fromt he KRS 403 chapter governing the dissolution of marriage and child custody. The bottom line is that producing a child with a married woman gives a poor prognosis for establishing paternity and is an inadvisable course of action in any circumstance.

A recent decision by the Kentucky Court of Appeals, Hoppe v. Tallent, 2007-CA-00104-MR (March 7, 2008)(to be published), highlights the deference given to trial judges in family law cases. A solid review of this case can be found here at the Divorce Law Journal. Very briefly, Hoppe was denied visitation with the daughter he had with Tallent due to allegations made that he sexually abused her.

Six mental health professionals had been involved with the case over the span of years, but only the final therapist recommended no visitation. All the other mental health professionals recommended some level of visitation. Despite the professionals being 5 to 1 in favor of visitation, the trial court denied any form of visitation for Hoppe with K.H. The Court of Appeals upheld the trial judges decision because great deference is given to the “trier of fact”. This is based on the notion that the trier of fact is in the best position to ascertain the credibility of witnesses (a notion that may be a bit antiquated with video taping of trials). So, the denial of Hoppe’s visitation remained in place.

The real lesson in this case, though, lies in what the Court of Appeals signaled in its commentary. They expressed concern that the child had been coached by her mother to make up the allegations (an element in what some experts call “parental alienation syndrome”) and noted that no criminal charges had been pursued against Hoppe. The also highlighted that the first 5 mental health practitioners said visits should occur and speculated that the trial court went with Sutton, the one therapist to advocate no visits, merely because she was the last one to see the child even though she “stumbled mightily when queried about her education and may have counseled only a handful of children during her six years in private practice . . . .” Id. at 16. Lastly they came as close as they could to encouraging Hoppe to obtain new psychological evaluations of the child (and presumably the parents) and file a new motion to re-start visits. So, the real lesson is to go into highly contentious custody and visitation battles as prepared as possible.

This kind of preparation, obtaining current expert witnesses and evaluations, can be very expensive on the front-end. Perhaps in Hoppe’s situation, the cost of such experts was prohibitive. However, because it is unlikely to get a trial judge’s decision overturned in these sorts of matters, it is better to incur those expenses, if one is able, at the trial level instead of on an appeal.

A story out today revealed that Heath Ledger’s minor daughter, Matilda Rose, was not included in his last will and testament. The will was drawn up before Heath had any children and left everything to his parents and three sisters (Herald-Leader story from March 11, 2008 on page A2). Heath’s immediate family issued assurances that Matilda Rose would be provided for. If I were advising Matilda Rose or her mother, I would express my appreciation, but I would point out that many states have statutes (and common law) covering “pretermitted heirs”. A pretermitted heir is a child who was accidentally or inadvertently omitted from a will. That describes Matilda Rose. I have not looked up the statute or common law in New York where Heath’s will would be probated, but it most likely has such a provision protecting pretermitted heirs. Therefore, I would insist that she receive the inheritance due to her. In many states with there being only one child, that may be the entire rest and residue of the estate (roughtly everything except for specific gifts to particular persons). Hopefully, Matilda Rose’s mom, Michelle Williams, will obtain legal counsel that will point this out to her.

If I had been advising Heath Ledger, I would have talked to him about having a will that covered many contingencies. One of those contingencies would have been the likelihood of having children and how he wished they were to be treated. Generally, even if a person has no children, it is wise to draft the will as though he or she would have them before they die. This would even be true for elderly persons because of the possibility of adopting a child. One can disinherit their children or a specific child, but to do so requires a provision drafted to address this particular wish rather than silence. It is important to carefully approach such an action and never disinherit a child lighlty because of both the moral consequences of such an action and because of the possibility of a court reforming the will under a few different doctrines.

People typically think of income in terms of how the IRS defines income, even when it comes to divorce. This makes sense because we deal with income and IRS on an annual basis (except certain notable celebrities) while we deal with divorce, if at all, only once (again with certain celebrities excepted). However, they are not defined exactly the same.

In the recently released Kentucky Supreme Court case, Gripshover v. Gripshover, (2005-SC-000729-DG & 2006-SC-000258-DG)(Feb. 21, 2008)(to be published), , one particular difference is illuminated. The IRS provides for certain business expenses to be fully depreciated (expensed) in the year of the expense rather than depreciated over time. 26 USC Sec. 179. The Gripshover Court held that KRS 403.212 provides only for straight line depreciation. This means that the IRS reported income will often be lower than the income used for determining child support in divorce cases where a business owner is one of the spouses.

It also means that the days of relying on a business owner’s 1040 with the various self-employment schedules to show income is gone. CPA’s will be needed who understand the difference definition of income in divorce in order to determine child support.

The Kentucky Supreme Court just issued its decision in Gripshover v. Gripshover, (2005-SC-000729-DG & 2006-SC-000258-DG)(Feb. 21, 2008)(to be published). There is a pretty extensive factual background in the published opinion, but unless you either enjoyed reading cases in law school or aspire to enjoy reading cases in law school, I will focus on some key rulings in the case.

Unfortunately, there are spouses who, when they begin contemplating a divorce, engage in fraudulent maneuvering to hide away assets. This can take the form of transferring property belonging to the marital estate so as to exclude it as marital property in the impending divorce. When this dissipation of marital assets occurs, the trial court can recharacterize assets or pull them back into the marital estate in determing a “just” distribution of property.

In Gripshover, the wife alleged that real property transferred into a limited partnership and other property transferred into a trust defrauded her of her marital interest. The Supreme Court disagreed. For a finding of fraud or dissipation, there has to be evidence that the transfers were made in contemplation of divorce and with the intent to impair the other spouses interest. In this case, no such evidence was produced.

While I do not advocate suspicion within a marriage, it is important for both spouses to be understand the ramifications of significant transfers of property. So, I do advocate both spouses being engaged in the finances of the family.

The process of dividing property in a divorces consists of three broad steps as outlined in Jones v. Jones, 2006-CA-001870 (Feb. 1, 2008)(to be published): “(1) classify the property as marital or nonmarital, (2) assign to each party nonmarital property owned by that party, and (3) divide in just proportions marital property.” In the Jones case, the ex-husband, Ricky, appealed the trial court’s classification of Tobacco Transition Payment Program payments (”TTPP”) as marital property.

TTPP is an important source of income for many Kentucky farmer’s and is divided into payments for growers of tobacco and payments for owners of the land where the tobacco would otherwise have been planted. This is where the particulars of the Jones case becomes important. Ricky inherited a life estate in the family farm. Without becoming too bogged down in the technicalities of a life estate, this means the farm was his to use during a lifetime, most likely his own. Since he inherited the farm, it was non-marital property by operation of KRS 403.190(2)(a). Ricky argued that the owner’s share TTPP came to him as the owner of the farm by devise so that it was not a marital asset.

Here, the trial court basically said that Ricky might be right about the owner’s share of the TTPP being non-marital, but the overall division was equitable, so let’s leave it alone. The Court of Appeals disagreed with the trial court and asserted that the owner’s payments under TTPP were compensation for the taking of the property interest of growing tobacco on the property, so it was non-marital.

However, the grower’s TTPP payments took the place of income earned from the sale of tobacco that would have been grown. Therefore, the compensation for loss of income and would be marital. Ricky still won this argument, though, because he and his ex-wife, Lynn, had a prenuptial agreement that specified “life estate in the farm “together with the income produced thereby, shall continue and remain the separate property’ of Ricky.” Id. at 5-6.

Next, Ricky challenged the trial court’s allocation of $44,648.00 out of $67,000.00 in improvements to the farm (main house, garage, lake) as marital. The Court of Appeals analyzed this under KRS 403.190(2)(e) which states:

The increase in value of property acquired before the marriage to the extent that such increase did not result from the efforts of the parties during marriage.

The life estate was given to Ricky before the marriage (obviously or else the pre-nuptial agreement would have involved prescience) and there were improvements made during the marrigage. The problem with the trial court’s analysis came from how it valued those improvements.

The trial court equated the actual cost of improvements to the increase in value of the life estate. This makes no sense because a life estate has much less value than outright ownership (fee simple). Basically, one can sell a life estate, but who would want to buy it? It would come to an end as soon as that life ended, which could be the day after the closing. Thus, the $44,648.00 that the trial court assigned as marital probably exceeded the fair market value of the life estate. Usually, expert testimony is required to determine fair market values. The Court of Appeals remanded the case to the trial court to recalculate the values involved and strongly suggested getting expert testimony.

Finally, Ricky appealed the award of payment of Lynn’s attorney fees. This is often appealed because it really hacks people off to go through a divorce and then have to pay their ex’s attorney fees too. However, these appeals rarely win because such an award is “soundly” in the discretion of the trial court. The court must consider the financial resources of the parties and, if an imbalance in resources exists, can award attorney’s fees. Well Ricky, two out of three ain’t bad.

There are a number of lessons to be learned from the recently released Kentucky Court of Appeals case Mickler v. Mickler, 2006-CA-001313-MR (Jan. 25, 2008)(to be published). A few of the lessons come from the procedure and facts of the underlying case rather than the appeal itself.

In Mickler, some affluent folks, Andrew and Terry got divorced. Andrew was an otolaryngologist who made in excess of $200,000.00 per year. The first lesson is that the harder it is to pronounce what you do, the more you will likely be paid. At the time of the divorce, Terry was 53 years old and had not worked outside the home for the duration of the twenty-two year marriage. The trial court awarded Terry $111,809.03 for her share in Andrew’s medical practice, half the proceeds from the sale of the marital residence and another piece of property, her car, and over $400,000.00 in retirement funds. In addition, Terry was awarded $7,000.00 in monthly maintenance for 12 years (that’s $1,008,000.00 for my fellow coupon clippers).

The second lesson is that if you are married to a highly paid professional, it pays to not pursue your own career. Actually, this is not a hard and fast rule because the majority of Kentucky appellate cases where long-term maintenance is awarded involves some form of disability on the part of the receiving spouse. I would consider this situation a gray area regarding maintenance for two reasons. First, being 53 is not really a disability although it can be more difficult to obtain gainful employment at that age without relevant experience. Second, Terry received considerable assets in the divorce. To receive maintenance, you must show that you cannot meet your reasonable living expenses and your standard of living only comes into play after crossing that initial hurdle.

Arguably, Terry could meet those reasonable living expenses (and even some unreasonable ones) with the assets distributed to her. Here though, the trial court seemed to define Terry’s reasonable living expenses by her prior lifestyle which is a bit of circular logic. If the legislature had meant for all divorced folks to maintain their prior standard of living, then they would have made the initial hurdle “lacks sufficient property . . . to provide for his standard of living established during the marriage” instead of “reasonable needs“. KRS 403.200.

I suspect these apparent errors by the trial court encouraged the filing of the appeal. Here is where the third lesson came into play. Because Andrew (actually his attorney) failed to file a supersedeas bond to stay the execution of the trial court’s orders pending the appeal. The lesson is that if you think the court messed up, be sure to do all you can to put those orders on hold while you appeal. Because Andrew did not do this, but also did not pay up, Terry filed a motion to hold him in contempt. Andrew responded with filing bankruptcy to get the stay on collection proceedings offered there.

Here is where Andrew made yet another mistake. He withdrew $64,000.00 from his checking account (I would never have another overdraft!) without disclosing this fact. That tends to be a no-no regardless of whether you are in Family or Bankruptcy court. Fortunately, Andrew was able to make a deal with Terry for temporarily reduced maintenance during that first appeal.

The Court of Appeals upheld the trial courts original order (well, I said it was a gray area - not clearly erroneous) and Terry came back with a second contempt motion. Andrew responded with yet another bankruptcy petition. This was the next mistake (sorry, I’ve lost track of how many) because this petition was quickly dismissed because (can you guess it?) the petition was filed for the purpose of avoiding compliance with the Family Court’s orders. The Supreme Court of Kentucky also turned down discretionary review of the divorce decree. Things just were not going well for Andy at this point.

Sensing that Andrew was on the ropes, Terry filed garnishments on various insurance carriers thought to owe funds to Andrew’s medical practice. That is where this particular appeal finally comes into play: click here for the rest of the story!

I have had the honor of representing parents in dependency, neglect and abuse (”DNA”) actions in a few different counties. Along with working for the Cabinet for Health & Family Services in child protection, I have learned that there is little uniformity in how various issues in these actions are handled across counties. One of these issues is the handling of child support assessed against the parents who have lost custody of their child(ren). Many practitioners and few parents realize that child support in DNA actions is governed by a different statute than child support in divorce cases. The statutes that determine child support in divorce actions are in KRS Chapter 403. A hallmark of child support in divorce is the use of standardized guidelines shown in KRS 403.212. Deviation from the guidelines has to be justified by the court.

In contrast to the highly regulated child support of divorce, child support in DNA actions is governed by only one statute, KRS 610.170. The only standard this law provides is that the court shall order a “reasonable sum” and this only IF the parent is able to contribute. The statute makes no reference to the guidelines of KRS 403.212. This omission was purposeful by the legislature and the entire thrust of KRS 610.170 shows a legislative intent to give greater discretion to the judge presiding over a DNA matter and for greater leniency in the amounts levied. There are practical reasons for this policy of leniency that are beneficial both to the parents and to the State. Unfortunately, many courts do not recognize the nuances built into this law and automatically apply the standard guidelines as if a divorce were occurring. Not only do many counties stick to the guidelines, they also divide the proceedings so that the child support is handled through an entirely separate docket. This leads to other difficulties for both the county and the parents.

Becuase the child support often is handled on a separate docket, the parents end up without representation. They were likely appointed counsel in the DNA proceeding due to a low income, but the scope of representation for the court appointed counsel (”CAC”) is not expected to include other hearings, such as for child support. Becuase of the limited scope of representation and because the parents cannot afford their own counsel, they end up without legal assistance in understanding the differences in the child support laws.

Separating the proceedings also impacts the courts and the County Attorney’s office by creating double dockets. Instead of one County Attorney familiar with the details of the situation, handling one case and showing up to one set of hearings, there are two County Attorneys and two sets of hearings. This lead to judicial inefficiency. Already impoverished parents must take more time away from work or job searches in order to attend hearings that will demand money from them leading to inefficiency from an economic standpoint. In other words, it creates waste for everyone.

Of course parents who have chosen to be or have inadvertently been neglectful or abusive should still support their children financially. However, there are some differences inherent in the DNA situation that call for different treatment than a divorce. In DNA actions, a third-party, the Cabinet, is stepping in and asserting authority to take the child from the parents. Occasionally this was due to an overreaction by the Cabinet. In rare circumstances, the removal was an out and out mistake. Regardless, the parents are often devastated and have few emotional, social and financial resources to successfully navigate the turmoil this brings about. The neglect and abuse likely flowed from a mental health issue or at least a deficit of parenting skills. The Cabinet always requests, and the courts order, various assessments, education programs and treatment regimens. Almost none of these requirments are free to the parents and only the rare few parents have insurance. Thus, the parents are stressed financially beyond what one typically sees in a divorce situations.

In order to reunite the child with the parents successfully, these various assessments and treatments must occur. That means fees paid to programs and time taken off of work to attend the classes or treatments. In other words, more expenses out and less income in. It is within this context that we see why the legislature simply used “reasonable sum” as the standard for child support in DNA matters. There is no way to factor all of those variables into a set guideline like one finds in the divorce statutes. So, the legislature comtemplated giving the judge, who could see what expenses were being required of the parent, to use their discretion to set child support at a level low enough to allow for success. This sets the stage for the parents to have every advantage towards being successful.

When more parents are given greater opportunity to succeed in reunification by maximizing the resources at their disposal (i.e. by keeping child support low) the State can actually save money. Some judges and County Attorneys worry that they are holding back money from the Cabinet that will help finance sufficient workers to do the job right. In truth, the amounts contemplated would only amount to a small fraction of the budget. Rather, if children go home faster then the State will encounter greater financial savings. Consider it this way, if it typically costs around $15.00 a day for a child to be in foster care (not to mention all the indirect costs) and the parents child support per guidelines would be $10.00 a day, then the state is falling behind $5.00 a day. Mathematicians can help me here, but there comes a point where the cost of low child support with fewer days in care becomes more financially efficient than high child support with more days in care. True, there will still be parents who do not do what they need even with low child support, but that can be addressed at a three or six month review where the court reassesses matters. It is better to start out setting that stage with every benefit to the parent to encourage success.

To pull all these ideas together, the best practice would be for either zero child support or a nominal amount to be assessed at the Temporary Removal Hearing in the DNA proceeding. Then, at the Disposition hearing, for the judge to look at all the requirments of the Cabinet and the parent’s income and determine a “reasonable sum”. This cuts out any extraneous proceedings, involves only one County Attorney, and insures that the parent’s court appointed counsel can advocate for them on the child support issue. Most importantly, it allows the judge to make their best determination as to what balance of child support will best allow the parents to obtain the assessments and treatment needed to get the child home. Finally, if the parent does nothing for the first three to six months, the judge can send one more wake-up call to them by upping the child support since it would then be “reasonable” to take treatment costs out of the equation. I cannot take credit for the process I recommend, but must give that credit a very wise County Attorney (he knows who he is) who has refined it over years in one county’s Family Court (I will take credit for illuminating the rationales for the policies though).

Thanks to the Divorce Law Journal blog for pointing out this family law case from the Kentucky Court of Appeals. Croft v. Croft, 2006-CA-001403-MR (Nov. 2, 2007)(to be published) addresses marital and non-marital property as well as maintenance (what Kentucky calls Alimony).

The marital versus non-marital issue revolved around a piece of property purchased by Dimitri Croft prior to the marriage. The trial court considered the entire value of the property to be non-marital at the time of the divorce. The Court of Appeals reversed this for being clearly erroneous. This was because the increase in value of property purchased prior to marriage is presumed to be marital unless it is shown by clear and convincing evidence that the increase was merely due to economic growth. Here, evidence was submitted that the couple both worked on the property and that the loan was finally paid off with marital money. Dimitri simply saying the work they did on the property was merely for upkeep was insufficient to overcome the presumption.

In division of the marital property, the Court pointed out that Kentucky law, KRS § 403.190, requires property to be divided in “just proportions” but this is not to say it must be EQUAL proportions. The trial court has great discretion in determining the exact division.

Adrianna Croft argued that she should have recieved maintenance because she became disabled and relied on social security disability for income. Here, the Court of Appeals upheld the trial courts denial of maintenance. The Court reiterated that “KRS 403.200(1) requires the trial court to find that the spouse seeking maintenance: (1) lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; and (2) is unable to support herself through appropriate employment.” In this circumstance, Adrianna was only able to testify that she could not eat out as often now that she and Dimitri were no longer together.

In each of these issues, the trial court is afforded a great deal of discretion and will only be overturned if the trial court’s decision was clearly out of line with the evidence. In the maintenance issue, courts usually uses very rough sense of equity that cannot really be considered a formula. If there is a substantial disparity in income (we’re talking tens of thousands rather than just thousands) leaving one party with a big drop in their standard of living, then maintenace may be awarded. Adrianna’s inability to eat out as often simply did not trigger the judges rough sense of equity.

Be sure to check back in with the Divorce Law Journal for a more thorough digest of this case.