Emergency Protective Orders (EPO/DVO)
In the event that a person has been the victim of domestic violence, he/she can file a Petition for an Emergency Protective Order (EPO), which results in a hearing to determine whether a long term Domestic Violence Order (DVO) will be issued by a judge. In these hearings, the judge must determine whether an act of domestic violence has occurred in the past and whether it is likely to occur in the future.
If the court determines that it is necessary to issue a DVO, the judge can decide whether to issue the order of protection to last from any length of time up to a maximum of three (3) years. At the end of that period, the protected party may move to extend the DVO by filing a Motion before the court that issued the order.
If a DVO is issued, the party against whom it is issued will be charged with a crime, a misdemeanor, if alleged to have violated the terms of the DVO.
Getting a divorce is never an easy decision. More often than not, divorces are complicated, stressful and timely. Let our experienced attorneys get you divorced as efficiently and amicably as possible. Whether you want to initiate the divorce, have been served with divorce papers, or it is a mutual decision, let us help you get what you deserve. Whether it be custody, child support, property, assets, or other matters, we will work to get the divorce final in an efficient and economical manner.
Cabinet for Health & Family Services (CPS –Child Protective Services)
Cases initiated by the Cabinet for Health and Family Services, often referred to as "CPS" or "The Cabinet" are called Dependency, Neglect, and Abuse Actions.
The Cabinet is called to investigate cases involving the circumstances of a child's upbringing like lack of basic needs--plumbing, food, electricity, exposure to domestic violence, etc.... The Cabinet is also charged with investigating cases in which a parent or guardian intentionally or recklessly harms, or poses a risk of harm to, a child. Examples include physical abuse, failure to provide medical care, drug use during pregnancy, etc....
The primary focus of The Cabinet is to provide a safe environment for the children of the Commonwealth. While the goal of the system is reunification through education and providing services to the family, it may be necessary that a child be removed from a parent. In most cases, removal is only temporary since the goal is always to reunite the family. However, the removal could become permanent if the parent is uncooperative with the Cabinet and the court orders.
If you would like more information on divorce and child custody, wills, powers of attorney, trusts or probate law, contact our family law attorneys today. We are here to help.
Divorce & Child Custody
What are the requirements for a divorce in Kentucky?
A divorce can be granted in Kentucky for any reason. This means that if either party wants the divorce, it can be granted regardless of fault. Kentucky requires that at least one party reside in the Commonwealth of Kentucky for at least 180 days before you can file for a divorce. Before a divorce can be granted, the parties must be separated for at least sixty (60) days.
In most counties in Kentucky, if there are children under eighteen years old, the courts require those families to attend a class in order to ease the divorce process for the children. A divorce can be either uncontested or contested.
What is the difference between an uncontested and a contested divorce?
An uncontested divorce is one in which the parties agree as to all the issues. There are a variety of reasons that an uncontested divorce is a better means of proceeding. An uncontested divorce is much less expensive than a contested divorce. An uncontested divorce can serve to reduce stress and emotional trauma because the issues are resolved more easily and more favorably to each party since the parties agree on each issue themselves.
All issues can be handled in an uncontested divorce. Together, the parties reach an agreement, which the attorney reduces to writing, and files with the court. In most counties, the parties to an uncontested divorce are not required to appear in court. Your lawyer prepares all necessary documents and you and your spouse sign the documents. Once the required documents are signed and filed, the court may grant the divorce immediately as long as you have been separated at least 60 days. In uncontested divorces involving children, the court must wait 60 days after the divorce was filed to grant the final decree.
In a contested divorce, the parties disagree on how to proceed and your lawyer must file motions to present the issues in court and the parties depend on the mercy of the judge to decide issues, including: property/debt division, child custody, child support, child visitation, and maintenance (spousal support/ alimony).
Once your divorce petition is filed, you may request temporary orders from the court including but not limited to the following: temporary child custody, temporary child support orders, temporary maintenance, and temporary orders to determine who pays marital debts.
Most counties in Kentucky require those involved in a contested divorce to attend mediation with a qualified family court mediator in order to attempt to mutually settle the issues in a divorce. In the event that mediation fails, then the judge will schedule a trial date and the trial will be heard by a judge, rather than a jury.
What types of property is divisible in a divorce?
Marital property is divided equitably meaning "fairly", not necessarily equally. While you may keep the property you had before the marriage or received as a gift or inheritance solely to you, all other property is marital and will be divided based on:
- Contribution of each spouse, including contribution as a homemaker;
- Value of separate property;
- Duration of marriage;
- Economic circumstances of each spouse;
- Desirability of awarding the family home to the custodial parent;
What is Maintenance and who qualifies for it?
In Kentucky, spousal support is called maintenance. Maintenance is awarded based upon one spouse’s need to “maintain” a certain lifestyle, which he/she led throughout the marriage to some degree. The idea is that this monetary award would assist a spouse in the transition from a marriage to being single once more. A judge does not have to order maintenance, but may order it to either spouse and only if deemed necessary. The judge may order temporary maintenance while the divorce is pending.
In considering who is eligible for a maintenance award, he/she considers the length of marriage, the financial disparity of the parties, as well as whether the party paying could support himself/herself in addition to paying maintenance.
Can I get a legal separation rather than a divorce?
There are a variety of reasons one may opt for a legal separation instead of a divorce, but the most prevalent reason is to maintain insurance for one spouse. Once a divorce is granted, the insuring spouse must cancel medical insurance coverage for the other. By legally separating, a spouse can maintain medical insurance coverage on the other.
As in a divorce, you must a petition for legal separation and your spouse must be served with the summons. Just like divorce law in Kentucky, a separation requires that spouses live apart for 60 days. However, you may live under the same roof providing there is no intimate cohabitation. If during the separation, you decide you want to divorce, you must wait one year for the dissolution of marriage to be granted.
How does a court determine which parent gets custody of the child(ren)?
Custody is a legal term meaning which parent, if not both, is responsible for the “major” decision-making in the child’s life. Examples of those “major” decisions include: whether to send the child to private or public school, whether to permit the child to have elective surgery, what religion in which to raise the child, etc....
*Custody does not refer to the amount of parenting, or visitation, time a parent is permitted.
The judge may award sole or joint custody of children to his/her parents. The judge determines who is awarded custody based of the by the child’s best interest and, in most cases, the courts will award joint custody which means that both parents are expected to share in the child-rearing decisions.
How does a court determine how much parenting time a parent is awarded?
In considering parenting time, or visitation, of a child, a judge considers what is in the child’s best interest. Although there are many factors considered in determining the best interest of a child, some of those factors can include the following:
- Child's preference
- Wishes of parents
- Child's adjustment to home, school and community
- Mental/physical health of parents
- Child’s relationship with parents, siblings and others
- Whether there are domestic abuse issues in a home
Many parents want an equal shared parenting schedule. The courts consider this an option, but ultimately make this decision based on whether it is in the child’s best interest. Parenting schedules are always modifiable based on the best interest of the child.
What is a de facto custodian?
If a child has resided in the home of a person, other than his/her parents, that person may qualify to be the de facto custodian. This means that the custodian would “step into the shoes of a parent” when a court considers custody, parenting time and support. There are many requirements for one to qualify as a de facto custodian.
The custodian must have been the primary caregiver and financial supporter for the child and the child must have resided with the custodian for at least six (6) months or more if the child is under three (3) years old and for one (1) year or more if the child is three (3) years or older.
What if the parents were never married?
Parents who were never married still endure the same concerns regarding their children as though they were married. The courts must determine child custody, parenting time and support for these families.
The best interest of the child is still the standard the courts use to determine custody and parenting time and the court considers both parents’ incomes in determining child support.
How is child support determined?
Child support is determined by a formula set forth by the Kentucky legislature based upon the joint income of both parents. Other factors that are considered is whether a parent provides medical insurance for the child and whether childcare is being paid. Those factors can serve to offset the total child support amount owed.
Does Kentucky recognize grandparents’ rights?
Yes. However, because public policy recognizes a parents’ near exclusive right to raise his/her child, the courts in Kentucky require a showing that it is in the best interest of the child to award grandparent visitation.
Wills, Powers of Attorney, Trusts
Why do I need a will in Kentucky?
A will is a document, which lets your family and friends, as well as the courts know your intentions as to your wishes concerning who gets your property following your death. In Kentucky, without a will, your spouse is only entitled to 50% of your estate following your death, which means that the other half of your estate will go to your children, then to your parents, then to your siblings, THEN to your spouse. A will can make certain your spouse, or other loved one gets the entirety of your estate should you desire.
Another reason you should have a will is to designate in a formal instrument who will take responsibility for raising your children if necessary, following your death and how they will be able to care for them financially.
Why would I need a Power of Attorney?
A Power of Attorney (POA) is a tool by which you assign your rights, either generally, or for some specific purpose, to a trusted person so that your affairs are responsibly taken care of in the event of some emergency that prevents you from handling your own matters. Even a short unexpected hospital stay could cause bills to be late and checks to bounce if no one can access your bank accounts. A POA is only effective while you are living. It becomes void upon your death and the will serves to appoint people to handle your affairs.
How do I know if I need a trust?
Most people think that a trust is only for the wealthy. Not true. A trust works in conjunction with a will to further protect your assets and your loved ones. The most important reason for a trust is if you have minor children and you need to provide financially for them should you pass away while they are minors. All your assets can be titled in the name of the trust and all policies providing for beneficiaries can designate the trust as the beneficiary. You choose a person to be the trustee and, if you desire, a different person to be the guardian for your children.
If you do not have a trust to assist with minor children’s financial affairs, all financial assets will be required to be deposited into a blocked account through the probate court and can only be accessed upon motion each time there is a financial need for the children. This can be a cumbersome process for the guardian. A trust removes this step and permits free access for the guardian to support the children when necessary.
Probate is a process whereby an estate is handled following a person’s death. Typically, an attorney files paperwork in court and attends court appearances on behalf of the family. It includes but is not limited to the following:
- Having an Executor/Administrator appointed;
- Proving the validity of a will, if one exists;
- Taking an inventory of the deceased person’s property and appraising same;
- Paying the remaining taxes and debts;
- Distributing the remaining property as directed.
In Kentucky, an estate must remain open for at least six (6) months in order to give any potential creditors the opportunity to file a claim against the estate for what they believe is owed.
Robert W. DeWees III is a member of the McClain DeWees, PLLC and practices in real property litigation, business litigation, collections, bankruptcy, civil litigation, and family law .