Lexington Family Law

In the recent Kentucky Court of Appeals case, Lawson v. Lawson, 2004-1077-MR (2007, to be published) , the husband, John Lawson, was left responsible for the deficiency balance of $100,000 after the foreclosure of the marital residence. John had been ordered to pay the mortgage payments during the pendency of the divorce because of the disparity in income between he and his then wife, Barbara. Dear John lost his job, however, after failing a mandatory drug test. John subsequently stopped making the payments. The Court of Appeals stated:

In dividing marital property, including debts, appurtenant to a divorce, the trial court is guided by Kentucky Revised Statute (KRS) 403.190(1), which requires that division be accomplished in “just proportions.” This does not mean, however, that property must be divided equally. Russell v. Russell, 878 S.W.2d 24 (Ky. App. 1994); Wood v. Wood, 720 S.W.2d 934 (Ky. App. 1986). It means only that the division should be accomplished without regard to marital misconduct and in “just proportions” considering all relevant factors. Brosick v. Brosick, 974 S.W.2d 498 (Ky. App. 1998). “Misconduct” relative to the dissipation of assets, however, is not marital in nature and may be considered. Id

The Court cited John’s failed drug test as his misconduct. It also notes that John failed to show up, offer any testimony, or otherwise attempt to inform the court of his job loss. Because he stopped paying the mortgage and because this failure was tied to job loss for drug use, he was left responsible for the $100,000 deficiency when the house was foreclosed on and auctioned. The mistake of the drug use might have been mitigated in some way had John not also made the mistake of ignoring the court proceedings.

Ah, but not all was lost for our Dear John. The trial court ordered that Barbara was due one-half of any award John might get as a result of his wrongful termination suit against his employer. The Court of Appeals reversed this stating:

because John has not yet received any damage award pursuant to his wrongful termination claim, and further because of the speculative nature of any such award and its characterization, the trial court lacked a sufficient basis for deeming as marital property any and all future proceeds John may realize. Thus, we are compelled to reverse that portion of the March 11, 2004 awarding Barbara one half of any judgment awarded to John. Of course, if, at some point in the future John is successful and receives a monetary judgment against his former employer, the trial court is certainly free to revisit this matter for an appropriate determination at that time.

If he ever is successful, any damages that could be attributed to compensatr for lost income that would have been earned during the time the divorce was pending would arguably be marital and subject to division.
This case has one last significant bit of wisdom to offer. John had been making three times as much earned income as Barbara before losing his job and the trial court awarded him maintenance. The maintenance was $2,500 per month for five years. This was reversed and remanded to the trial court for reconsideration because:

According to KRS 403.200(2)(f), one of the factors that a trial court must consider when deciding whether to award maintenance is “[t]he ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” Because we cannot determine whether the trial court addressed this, we must reverse the March 11, 2004 decree to the extent that it orders John to pay maintenance of $2,500.00 to Barbara and remand for a new determination in accordance with all of the elevant factors as required by KRS 403.200(2).

If Dear John remained unemployed, Barbara will probably no longer receive any maintenance. This reaffirms the one consistency in the practice of divorce law. No one ever walks away with everything they wanted or believe they deserved. While Barbara escaped responsibility for a share of the $100k debt, she likely will lose out on the $30,000 in maintenance she had been awarded.

For business law information, be sure to check out Bluegrass Business Law blog. There is a synopsis of recent case law on the Kentucky tort of intentional interference with contractual relations.

Divorce is both the result of unresolved disappointments and resentments and the source of terrible desires for revenge. Thus, it is common for people to try and exact revenge through the courts. Common, but not particularly beneficial to any party. The Court of Appeals reminds us on this in their unpublished decision, Hollis v. Hollis, 2005-CA-000770-MR (June 1, 2007). The Court states:

“While we do not now find that John should be directed to show cause why he should not be sanctioned, we give fair warning that this Court is not to be used as a tool to frustrate the peaceful resolution of a broken marriage.”

Mr. Hollis apparently had a penchant for filing pro se motions attacking everything from the refusal of the trial court to give him a videotape of the proceedings to an attempt at trying to force Ms Hollis to return unspent child support.

So, a word of free legal advise. Let Mr. Hollis teach you if you are contemplating or undergoing divorce and talk to a counselor or scream at a pillow and leave such acts of retribution out of the courtroom. Do not expect satisfaction from the judicial process in a divorce; the court just forces a resolution in the most efficient manner it knows.

It may be tempting, in dealing with a relatively small estate of a loved one who has passed away where there is no will, to avoid probate. This is especially tempting when the only asset of value is a piece of real estate that is passing to the children of the deceased. It is tempting because real estate, unlike some types of property, passes directly to intestate heirs. All that is necessary is for an affidavit of descent to be filed in the county clerk’s office. However, there is one caution. If there are any creditors of the deceased remaining that could file a claim against the estate, avoiding probate prevents the time limitation on such claims from running. So, if the heirs then try to sell the property a few years down the road, that creditor could make a claim on the property and complicate or ruin the sale. Probate provides a six month time limit for creditors to file their claim leaving, no doubt as to clear title on the property.

In a Kentucky Court of Appeals decision slated to be published, Wallace v. Wallace, 2006-CA-001430-ME, the precedence of continuing jurisdiction over home state jurisdiction was reaffirmed. This Court cited the Kansas case of Ruth v. Ruth, 32 Kan.App. 2d 416, 421, 83 P.3d 1248, 1254 (2004) for the point that the original state retains jurisdiction until the:

“relationship between the child and the person remaining in the state with exclusive, continuing jurisdiction becomes so attenuated that a court could no longer find significant connections and substantial evidence.”

In Wallace, one parent and two children had resided in Tennessee for two years while the other parent and one child remained in Kentucky where the divorce occurred. The trial court dismissed a motion by the Kentucky parent to modify visitation in its entirety because the two children in Tennessee had established a new home state. The Court of Appeals reversed this decision and highlighted the importance in the modern jurisdictional laws of avoiding conflicts among states. Since one parent and child remained in Kentucky, this state maintained continuing jurisdiction.

The significance is that simply moving with your child to a different state and residing there for over six months does not mean jurisdiction over custody and time sharing will move with you to your new home state. As long as there is a significant connection to the original state, such as a parent remaining there and having regular visitation, that state retains jurisdiction unless it chooses to relinguish it.