Mediation provides more flexibility than court in most instances and has many benefits, but you may want to be aware of the following information to help you prepare for your mediation session:

• The mediator, usually a former judge or an experienced attorney, cannot force, make or require you to sign a settlement agreement. The mediator is a neutral person who assists parties in negotiations. The mediator cannot disclose any information to the Court other than whether a full or partial agreement was reached, and this is usually done by the filing of a simple report after the mediation.
• If you and the other party reach an agreement on some or all issues, a written agreement will generally be prepared for your signature at the conclusion of the mediation session. If you sign an agreement at mediation, you will be bound to the terms. The Court will accept the agreement and will not allow either party to withdraw his/her consent or modify the terms of the agreement.  Typically, the mediated agreement will be entered by the Judge in your case as a Court Order. Failure to comply with the terms of such a Court Order, can warrant contempt sanctions against the party who fails to comply.
• Depending on the issues in your case, a Court may be allowed to modify the mediated agreement in the future under certain circumstances, particularly in dealing with family law (divorce/custody) issues, e.g., child support, custody, visitation. Be sure to discuss with us prior to mediation, the types of issues which could be modified in the future and the legal requirements for modification. In addition, laws change over time and such changes may effectively modify your agreement. It is not possible however, to foresee the future and the changes which may occur. Thus, there is some prospective uncertainty to any agreement reached in the present.
• During mediation, you may need advice from another professional, such as, a certified public accountant, tax preparer, mortgage broker or realtor. As an attorney, we cannot give you advice in other specialized fields. It may be prudent for you to contact one or more of these professionals, in advance, and arrange for a telephone conference, if necessary, during mediation.  Please contact us if you have any questions regarding this. If professional advice is necessary, but unavailable to you during mediation, you have the right to delay signing any agreement in order to obtain the required advice or information.
• In order to be prepared for mediation, you should be well-rested and free from the influence of any mood or mind-altering medications.
• Come prepared to compensate the mediator for his/her time in helping you negotiate your case. Usually the Court will order the parties to divide the expense of mediation equally or proportionally prior to mediation being scheduled.
• Since mediation can be very stressful, do not plan to skip nourishment before or during mediation. Your decision-making ability depends on your physical and emotional well-being. Take appropriate steps to be as comfortable and at ease throughout the process as possible.
• If you are responsible for the care of others, i.e., children or pets, make arrangements for their care in advance as mediation sessions may last longer than anticipated.
• You are under no obligation to settle your case during mediation.  It is natural for each side to feel pressure during mediation as the mediator does his/her job.  If a mediated agreement is signed, it will be your decision. Neither the mediator, us or any third party can compel you to settle your case. Do not sign a settlement for any reason other than you want to do so.
• If a mediated settlement is reached in whole or in part, you will generally be precluded from obtaining discovery or other information regarding the settled issues. Thus, if further information/documentation is desired by you on an issue, you are responsible raising this issue and discussing it fully with us prior to signing any agreement.

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The mediator’s role is collaborative, not adversarial. He or she is present to help the parties by promoting constructive dialogue. The lawyers are present to help the parties achieve realistic goals. The clients are present to negotiate in good faith. This includes a duty to take reasonable positions that may be justified with exhibits and/or other information. The clients may feel free to bring someone to mediation for moral support. The clients, their attorneys and the mediator shall conduct themselves courteously. This includes a duty to listen to other points of view for the purpose of understanding that point of view and to repeat what has been said for clarification.

Mediators generally have the parties and their attorneys sign a mediation agreement prior to the negotiation process. The mediator is usually paid a set fee that is divided between the parties at the conclusion of the session. The mediation process can be a less expensive and more efficient way to resolve disputes than allowing the litigation process play out in family court.

The mediator usually begins a session by speaking with all the participants together. Thereafter, he may conduct mediation face to face or suggest that opposing parties and their attorneys retire to separate rooms. The mediator can then move from room to room to meet privately with each party and his or her attorney. Clients should speak freely and honestly to the mediator and may take comfort in knowing that the mediator will keep confidential that which he instructed not to disclose.

Mediation is generally dictated by the local rules of Court, such as in Jefferson Family Court in Louisville, Kentucky. What transpires in mediation is not admissible as evidence in the courtroom. The only exceptions to the rule of confidentiality are the obligations imposed on the mediator to report abuse as required by KRS 209.030 and KRS 620.030. Except for private sessions with the parties and their attorneys during the mediation process the mediator shall not communicate ex parte with the Court, the parties or their attorneys.Mediation may not be appropriate or ordered in certain cases, such as where there has been domestic violence (EPO or DVO) between the parties. Parties should not confuse this process with therapy or counseling.

The mediator, either party, or their respective counsel may request at any time, without prejudice, that mediation stop. Likewise, future mediation sessions may be scheduled by mutual agreement of the parties, their attorneys and the mediator. The mediator shall report the results of mediation without comment to the Court and the Family Court Administrator.

Our family law attorneys at Goldberg Simpson are experienced in guiding you through the issues of divorce, legal separation, child custody, or support and maintenance issues.

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How To Dress For Family Court

If you have a hearing or motion in family court, you will be generally be appearing in a courtroom with the judge, the judge’s staff, a bailiff, other attorneys and other parties. It goes without saying that it is important for you to make the right impression as this is generally the most formal place that you will be appearing throughout your divorce or custody case.

Business professional, and possibly business casual, are the recommended choices of attire in family court. Many men choose to wear a suit, while women may wear. We advise our clients to dress naturally given their profession, so a pair of khakis and polo shirt may be appropriate. We have also had military clients appear in their uniform. However, you need to discuss with your attorney what your divorce judge prefers, as some courts have stricter dress codes than others.

Don’t overdo it. You may give off the impression that you are trying to overcompensate for some shortcoming in your case if you come dressed in a tuxedo or three piece suit. Furthermore, it may be harder to explain to the judge while you shouldn’t pay top dollar maintenance/alimony or child support if your wardrobe (or at least what you show on the day of court) is of the highest caliber.

How To Dress For Mediation

Mediation is a more relaxed venue than court, as this session devoted to settling your case generally occurs at one of the attorneys’ offices. Usually each party is in a separate conference with his or her attorney, and the mediator goes back and forth while working on a deal.

Business casual is generally appropriate for a mediation, although given the season and the circumstances, such as the accommodations of the building where the mediation is being held, more casual attire may be acceptable. Mediations are generally scheduled for half a day or a full day, with a possible break for lunch, so taking layers and settling in for the long haul may be an appropriate strategy. Again, discuss the specifics with your divorce attorney so you can get specific advice about the peculiars of the mediator and the office where you are mediating.

How To Dress For Your Deposition

A deposition also generally occurs at one of the lawyers’ offices. Present are the attorneys, along with a court reporter and usually the parties involved in the case. One of the lawyers asks questions to a party or a witness, which can take several hours.

This proceeding is more formal than mediation, but usually feels less formal than court given that the deposition is not conducted in the courtroom. We recommend that our clients follow the guidelines we provide for court attire when preparing for a deposition.

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Boyd Circuit Court

As part of a dissolution of marriage action, Family Court ordered that the parties’ marital residence be sold and after reduction for the costs associated with the sale of the house, the net proceeds be applied to the parties’ credit card debt or other marital debt and then that the remainder be divided equally between the parties. The parties were subsequently unable to agree on listing and selling the marital residence. Husband moved Family Court to set the conditions for the listing and sale of the marital residence. Family Court ordered Wife to cooperate in the preparation and listing of the marital residence. Subsequently, Family Court ordered the parties to agree on an appraiser to value the marital residence and then for Wife to pay Husband half the appraised value. Husband disputed the appraised value. Family Court eventually set the value of the property, allowed Wife to purchase the property, ordered Wife to place funds in escrow for her to present evidence on payments on marital debt, and ordered Husband to sign a quitclaim deed. Husband appealed, and the Court of Appeals vacated Family Court’s order, concluding that Family Court had no jurisdiction to modify the decree in absence of a CR 60.02 motion, remanding the matter to Family Court with instructions to enforce the decree as entered.

While the appeal was pending, Wife recorded the quitclaim deed and obtained a mortgage from Kentucky Farmers Bank (“KFB”). She used some of the proceeds to pay off the marital credit cards and deposited the remainder into escrow. Following the remand, Husband moved Family Court for the marital residence to be sold by master commissioner, and Wife moved Family Court for a credit for monies paid toward the marital debt and credit representing the remaining proceeds from the mortgage.

KFB was subsequently permitted to intervene in the action to protect its interest in the mortgage. It requested that Family Court conclude that it had a valid mortgage and that its mortgage had priority over all over liens or debts. Family Court concluded that KFB properly relied on the quitclaim deed, concluded that the mortgage was free and clear of any interest by Husband, and directed that any order of sale be subject to the mortgage. Family Court designated this order as final and appealable. Husband objected to the finality language but conceded that KFB’s interest was valid and should have priority. Family Court overruled the finality language objection and ordered that the property be sold by master commissioner.

The property was sold. Husband objected to payment of KFB’s attorney fees from his portion of the sale proceeds and took the position that the mortgage debt and associated attorney fees claimed by KFB were Wife’s nonmarital debt. Family Court directed the pay out of the proceeds, which Husband moved Family Court to reconsider, noting that the prior Court of Appeals opinion directed that only the debts of the parties set out in the decree could be deducted from the sale proceeds. He also argued that the property should be sold subject to KFB’s mortgage indebtedness, objected to payment of KFB’s attorney fees from the sale proceeds, and argued that Family Court improperly credited Wife for payment of a credit card debt which was still outstanding. Family Court denied Husband’s motion and stated that the issues raised were addressed on appeal and upon subsequent order of the court following the Court of Appeal’s direction was not appealed and is now the law of the case. Husband appealed.

Husband argued that KFB should be responsible for the mortgage and charges associated with the litigation. The Kentucky Court of Appeals held that KFB’s intervening complaint invoked Family Court’s jurisdiction for the matters relating to the master commissioner sale, and it acted within its jurisdiction when it addressed KFB’s claims relating to the mortgage. Furthermore, Husband did not appeal from the order concluding that KFB’s mortgage and litigation costs have priority from the sale proceeds. And KFB was entitled to rely on the recorded quitclaim deed, because it had no notice of the pending appeal. The Court of Appeals affirmed Family Court’s orders with respect to the KFB’s claims to the sale proceeds.

Husband argued that Family Court failed to properly allocate the sale proceeds between him and Wife. The Court of Appeals held that Family Court did err in its allocation of the sale proceeds after satisfaction of KFB’s claims. The mortgage was a nonmarital debt since the mortgage was granted after the entry of the decree of dissolution. Wife acted in reasonable reliance upon Family Court’s orders, but Husband had no part in incurring the new debt and he promptly appealed the order permitting Wife to purchase and encumber the property. Family Court was required to strictly construe the adjudications in the decree absent a CR 60.02 motion. Any claims arising between Husband and Wife after the entry of the decree were outside the scope of the remand. Family Court properly credited Wife for payment of marital debts from the mortgage proceeds, as ordered in the decree, but it erred in treating KFB’s mortgage debt as marital debt. Those amounts should be deducted from Wife’s share of the remaining sales proceeds.

Digested by Nathan R. Hardymon

The post Post-Dissolution Mortgage on Marital Residence Was Wife’s Nonmarital Debt – Published Opinion from Ky. Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

First, KRS 403.170 prevents a Court from issuing a decree of dissolution “until  the  parties  have lived  apart  for  60  days.” Even if you are still living under the same roof, you may be considered separated for the purposes of this statute.  

Second, if you have minor children KRS 403.044 prevents the Court from hearing matters other than testimony on temporary motions until “sixty (60) days have  elapsed  from  the  date  of  service  of  summons,  the  appointment  of  a  warning  order attorney or the filing of an entry of appearance or a responsive pleading by the defendant, whichever occurs first.” If you have come to an agreement resolving all issues in your divorce, including custody and parenting time, very quickly this “waiting period” might come into play. Thus, the KRS 403.044 prevents a Court from issuing a decree of dissolution until 60 days have elapsed from the date the response to the petition was filed or date of service of a summons.

There are certain time restrictions on the divorce process in the Commonwealth of Kentucky. If you are interested in learning more about how these might impact your specific case, consider consulting with an attorney.

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The general rule in Kentucky is that student loan debt incurred during the marriage is the nonmarital debt of the party receiving the educational benefit associated with the loan, and the debt should be assigned to that party. Combs v. Ousley, 2007-CA-001552-MR, 2009 WL 276506, *3 (Ky. App. Feb. 6, 2009). To the extent that the proceeds of the loan were used to provide for family expenses, however, some portion of the debt may be marital debt. This is a fact-intensive inquiry, and it is important to discuss your unique circumstances with an experienced family law attorney.

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Once an EPO is issued, it will be served upon the other party and a hearing will be held, usually within fourteen (14) days. The purpose of the hearing is to determine whether a more permanent Domestic Violence Order (DVO) should be entered, after both sides have had an opportunity to present evidence. If, after the hearing, a judge finds that “domestic violence has occurred and may occur again,” it may grant a DVO.

Once granted, a DVO may remain in place for up to three (3) years and may be extended upon the request of the petitioner. An EPO or DVO may include children and may award temporary custody, temporary child support, and set a visitation schedule.

Unlike an EPO, which opens a legal action when filed, to obtain a civil restraining order, a person must be a party to a separate civil legal action, such as a divorce or child custody case. If such an action has not been filed, a civil restraining order cannot be obtained. While a civil restraining order may include some of the same conditions as a protective order, such as no contact, they do not provide the same protections.

Violations of an EPO or DVO may result in contempt of court or criminal charges. If a violation occurs, law enforcement may immediately arrest the offender without a warrant. Federal law also prevents Respondents subject to a DVO from legally purchasing, possessing, selling or disposing of firearms.

Violations of a civil restraining order do not have criminal penalties. This means that law enforcement cannot make an arrest upon violation. Violations must be brought to the attention of the court by filing a motion asking the court to hold the violating party in contempt. While contempt may be punished by jail time, this rarely occurs.

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To determine if a debt is marital or non-marital, courts look to the following factors:

(1) who received the benefits for which the debt was incurred;

(2) the extent of participation of each party in incurring the debt;

(3) whether the debt was incurred to acquire assets that are designated as marital

     property;

(4) whether the debt was necessary to provide for the maintenance and support of      

     the family; and

(5) the economic status of each party. Where one party has a much higher earning

     potential than the other, the court may assign the debt to the party who has the

     ability to pay.

The court will consider all the circumstances surrounding the debt, and no one factor is determinative. Thus, the division of debts is often complex, and it is important to consult with an experienced family law attorney.

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However, when many are contemplating a divorce, they want it to be as easy and peaceful as possible.  They buy into the concept that they do not want to make a bad situation worse, pay unnecessary attorney fees or damage their children’s emotional welfare. They may also need to preserve some form of cordial relationship if they have children and need to cooperate to effectively parent the kids for months or years to come.  If they believe that they can agree on terms of separation and divorce, an uncontested divorce may be an option.  

An uncontested divorce is when all issues between the parties are agreed upon and can be written into a divorce settlement Agreement.  This is a less expensive option that allows the parties to negotiate between themselves property and debt division and parenting issues. This generally works best if there remains a level of trust between the parties and both are seeking fairness.

If the parties are in full agreement, one of them can retain an attorney to draft the necessary documents to obtain a divorce.  In Kentucky, that would require the following documents: 1) a Petition for Dissolution of Marriage; 2) an Answer or Consent and Waiver for the other party to sign; 3) a Verified Financial Disclosure Form; 4) a Verified Financial Disclosure Acknowledgement; 5) the Settlement Agreement; 6) the Written Proof Interrogatories; and 7) the Final Decree of Dissolution of Marriage. 

The attorney should have the knowledge and experience to ensure the documents are drafted appropriately and the legal rules are followed to obtain the Final Decree.  If only one attorney is retained, that attorney can only represent one of the parties.  Thus, it is recommended, but not required, for the other party to hire an attorney to review the documents to make sure the Settlement Agreement is fair to them.

Once the necessary documents are filed with the Court, the judge will review the financial disclosures and Settlement Agreement to ensure the agreement is fair.  If there is no concern by the judge, then after the required time of separation is met, the judge will enter the Final Decree of Dissolution of Marriage.  Again, the attorney involved in the case can make sure that all of the necessary requirements are met and the matter goes as smoothly as possible.

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Jefferson Circuit Court

Questions Presented: Family Law. Foreign Judgments. Writ of Mandamus. Opinion of the Court affirming the Court of Appeals’ denial of a writ of mandamus against family court judge for failure to dismiss a petition for dissolution of marriage on grounds that the parties were already divorced under the laws of the Kingdom of Jordan. Court held that appellant/real party in interest was not entitled to writ relief of any kind, and specifically held that the family court was not acting outside its jurisdiction by not automatically giving full faith and credit to a divorce decree from a foreign country under the Full Faith and Credit Clause of the United States Constitution. Family court had jurisdiction and discretion to grant comity to the foreign decree, if appropriate in the judgment of the family court.

The parties were married in the Kingdom of Jordan and subsequently moved to Jefferson County, Kentucky. Wife later filed for dissolution of their marriage. Throughout the proceedings, Husband asserted in court documents that the parties were married. However, in his response to the petition for dissolution of marriage, Husband asserted that the parties were divorced by a Jordanian court prior to the filing of the petition when the parties traveled to the Kingdom of Jordan for vacation, where the wife’s participation is not required, and the husband must only state three times that he is divorcing his wife. Husband subsequently filed a “Certificate of Divorce” from the Kingdom of Jordan. Wife asserted that she had no knowledge of the divorce, and that it would have been nullified anyway, because Husband continued to allow Wife to perform “wifely duties” during Idda, the three-month period following a Muslim husband’s proclamation of divorce during which a husband may cancel the divorce by either announcing that he and his wife are married again or by having his wife perform “wifely duties” for him. Furthermore, Husband stated numerous times in court documents that the parties were married. Husband moved to dismiss the petition for dissolution of marriage, which Family Court overruled. Husband later renewed his motion to dismiss, which was also overruled. Husband subsequently petitioned for a writ of mandamus in the Kentucky Court of Appeals, seeking to compel Family Court to dismiss the petition. The Court of Appeals denied the writ. Husband appealed to the Supreme Court of Kentucky.

There are two classes of writs, and Husband was not entitled to a writ under either class. Under the first class, the petitioner must show that the lower court is proceeding or is about to proceed outside its jurisdiction and there is no remedy through appeal. Husband argued that that there was no adequate remedy by appeal because he would have to wait until the conclusion of the case after spending a large sum of money before having a right of appeal. Kentucky jurisprudence is clear that inconvenience, expense, annoyance, and other undesirable aspects of litigation do not satisfy the requirement to demonstrate great and irreparable injury. This does not demonstrate a lack of adequate remedy on appeal.

Husband argued that Family Court did not have authority to allow the petition to proceed because the parties were already divorced in the Kingdom of Jordan. Assuming that the parties were divorced in the Kingdom of Jordan, Family Court was not required to acknowledge or enforce that decree. The Full Faith and Credit Clause requires that full faith and credit be given “in each State to the public Acts, Records, and judicial Proceedings of every other State.” Thus, it requires a state to honor only the laws and judicial proceedings of a sister state, and Family Court was not required to honor the decree. The decree was entitled only to a consideration of international comity, the recognition which one nation allows within its territory to the legislative, executive, and judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or other persons who are under the protection of its laws. Trial courts have discretion whether to afford international comity to a foreign decree. The Court of Appeals addressed the issue, and it was not an abuse of discretion.

Under the second class of writs, the petition must show that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no remedy by appeal or otherwise, and it usually requires a showing that great injustice and irreparable injury will result if the petition is not granted. Husband argued that Family Court acted erroneously because it refused to give full faith and credit to the Jordanian divorce decree, but decrees of a foreign nation are not entitled to full faith and credit. Husband argued that he lacked an adequate remedy by appeal due to the expense of litigation, but the delay incident to litigation and appeal by litigants who may be financially distressed cannot be considered as unjust, does not constitute irreparable injury, and is not a miscarriage of justice. The Court of Appeals correctly addressed the arguments.

Digested by Nathan R. Hardymon

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