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CORONAVIRUS: HOW DOES A PANDEMIC AFFECT DIVORCE, CUSTODY AND CHILD SUPPORT?

Posted by Jason Rapp | Mar 24, 2020 | 0 Comments

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We are still in the period of initial shock.  For most of us, this still feels surreal.  How can something like this be happening in 2020?  How long will this last and what will the world look like after?  When will things be "normal" again?"  These are all necessary and logical questions.  They are part of the process that we are all going through.  

What I can reassure you is that life is going to continue through this, both the positive and negative aspects.  Children are still being brought into the world, anniversaries can still be celebrated (albeit in a different manner) and birthdays are going to be commemorated.  Sadly, too, marriages will end and relationships will break apart.  For anyone going through that on top of what is going on right now, first and foremost let me say that I am sorry.  I am sorry that you are having to deal with the uncertainty and fear of this coronavirus on top of the uncertainty and fear of what is going to happen to your time with your children and your finances as you face divorce or the ending of a non-marital relationship.  However, let me reassure you that I am here to help you out. 

You have probably heard that the court systems have been suspending much of their regular motion hours and hearings.  This is absolutely true and you can see the latest updates on www.kycourts.gov.  However, did you know that your divorce, custody case and/or child support matter can still proceed and reach a possible resolution, even if it is a new case to be filed?  If not, let me help you with how.  You will also find helpful information and videos, including videos unrelated to the law but still designed to help, at our Franklin & Rapp Facebook page, just search for us under Franklin & Rapp. To be clear, many, if not all of these procedures can be handled remotely via e-mail, phone calls, Facetime and any other means of communication designed to protect social distancing.  Likewise, we in Kentucky now have the ability to electronically file the documents needed to proceed through and finalize these matters.

Divorce

Procedurally in Kentucky, a divorce action begins with the filing of a Petition for Dissolution.  This Petition includes necessary biographical and identifying information about the parties and any children they have together.  It will also include other general and more boilerplate items.  From there, the other side can be served in three main ways.  The first is through the sheriff/constable.  The second is through certified mail.  The third is to send along a document called an Entry of Appearance.  This is a document that the receiving party signs and has notarized acknowledging they have received a copy of the Petition.  It is not an agreement nor a waiver of any rights.  These are commonly used today to avoid the sheriff arriving at an ex's home or any hassle associated with retrieving certified mail.  There is a fourth way, in which the other side retains an attorney and that attorney accepts service on behalf of their client.

In divorce actions, there will typically be some temporary matters to work out.  "Temporary" means how things will be while the divorce is pending, not how they will be for time immemorial.  As with all matters, either the parties will reach an agreement or the judge will have to decide.  However, with what we have going on today and access to courts temporarily limited, absent an emergency, these matters will be left up to the skillful negotiations of a qualified attorney and/or a mediator.  Here in Lexington, our mediation center is still working with people to help resolve matters, including remote methods such as Zoom.

Temporary matters can include who will remain in the marital home (one person or even both parties), temporary child support, temporary custody and timesharing, who will pay what marital bills and even temporary maintenance (commonly referred to as alimony).  To see which, if any, of these apply to your situation, you will need to speak in detail with an attorney.

Along with these temporary matters, the parties will be required to fill out and provide to each other a document that is called "Preliminary Verified Disclosures."  There may also be discovery that is undertaken and valuations for such things as homes, businesses, investment accounts, etc.  This is so that there is developed a full asset and debt picture.  This will also include any proof as to any non-marital claims to property, such as money obtained through an inheritance.

After these exchanges are done, the parties can begin negotiation attempts to reach a final resolution to the matter.  Just like in temporary matters, these can involve the use of attorneys, third-party mediators and even the parties themselves discussing it directly.  The only real substantive difference is that court involvement for a final hearing is temporarily suspended.  However, to bring you peace of mind, a vast majority of cases are resolved without the need for a final divorce hearing.  Why?  Because most parties wisely would rather maintain the control themselves than leave it up to a judge, who does not know them, to decide.

When an agreement is ultimately reached, there will be some finalizing documents to prepare an electronically file.  From there, the judge reviews them, signs off on them and has them entered.  They are then electronically filed and sent to the attorneys who then forward them to their clients.  This is the way it has been done for some time and can continue, even in the face of the coronavirus pandemic.  This procedure is nothing new or novel.  I cannot state enough that these actions can continue in the wake of what we are all facing.  You have options.

Uncontested Divorce

First, let me explain what an uncontested divorce is and is not.  An uncontested divorce is not a divorce where both parties agree they want to get divorced.  In Kentucky, in order to divorce, it takes one side to admit under oath that the marriage is irretrievably broken and there is no chance of reconciliation.  Therefore, absent a court deciding that the marriage is not irretrievably broken (something that has never happened in the twenty-one years that I have been practicing law), a divorce, contested or uncontested, can still happen even if one party desires to stay married.

What an uncontested divorce really is is a divorce where the parties have already resolved all issues between them and they need an attorney to handle the drafting of all of the appropriate paperwork.  To clarify, one attorney can handle all of the paperwork but he or she cannot represent both parties as that would be a conflict of interests.  Whoever contacts the attorney, discusses it with him/her and pays him/her is the client.  The other party is free to retain their own counsel to help them review the paperwork.  However, in many cases of an uncontested divorce, this does not happen.

The benefit of an uncontested divorce is two-fold.  First, it is a heck of a sight cheaper than a contested divorce.  Second, it saves time on the process and allows the parties the ability to retain complete control.  Again, these can be done 100% electronically and remotely.  I have handled countless uncontested divorces where the first time I meet the client face-to-face is when he/she comes in to sign the final documents.

Child Custody

Much like a divorce action (contested or uncontested), a child custody action begins with the filing of a Petition to Establish Custody and Timesharing.  There can also be a request for paternity to be established as well.  Likewise, I am sure there will be an element of child support.  At the outset, and this is true in divorce cases as well, let me be clear about child support and equal timesharing: Even in an equal timesharing scenario, child support may be appropriate by statute.  The amount may be drastically different, but there are procedures and calculations in place to deal with child support now that Kentucky has adopted a statute that creates a presumption for equal timesharing.

Again, much like a divorce action, there will likely be temporary matters to resolve and that can be resolved, even without court intervention.  There may be some discovery after that and then an attempt to reach an ultimate resolution.  Most of these cases also resolve through an agreement as opposed to a final hearing.  I hope that encourages you as well.

I cannot be clear enough about this:  All of this can proceed even with the court slowdown.  All of this can proceed through electronic filing and remote access.  I have handled custody and divorce actions where the action was filed here and the client lived in another state.  I have handled plenty of actions where I never met the client in person and a positive outcome was obtained.

Child Support

A question that many will be asking is, "Do I still have to pay child support if I have been laid off or lost my job?"  The answer is that yes, you do.  A judge that I respect has a saying, "The order is the order until it is no longer the order."  What he means is that, until an order is modified or set aside, it remains in effect.  This means that, if you have lost your job due to the coronavirus pandemic, you are still under a court order to pay the child support.  However, there are things that can be done to assist you during these times.

First, let me say that I know that you do not want to avoid your obligation.  Therefore, take an honest assessment of your life and see what can be cut out to help your child(ren) as he/she/they will need you now more than ever.  Always remember, you are not "paying" your ex, you are supporting your kids.

However, if the time comes that there is no solution but to seek a modification of child support until you get back on your feet, the appropriate motion can be filed.  While the usual motion hour for this in court is temporarily suspended, filing the motion does help in protecting you and your rights.  Also, there can be negotiations between us and your ex (or their attorney) to reach an agreement while these economic uncertainties continue.  If one is reached, we simply enter an Agreed Order.  If not, we will deal with it when courts get back to full time schedules.  However, negotiations can continue during this time and a settlement can be reached.

Conclusion

Feeling trapped or lost by the uncertain can happen in the best of times.  Right now, we are obviously not in the best of times.  However, at any time, best, worst or indifferent, there is help out there.  Contact me right now so I can begin to help you get to where you want to be.  As always, consultations are free.  Stay safe and healthy.

Jason Rapp

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