Part of Real World Divorce: web edition | Kindle edition
Doug Haynes, a partner in Louisville's Fernandez & Haynes, educated us regarding Kentucky family law. He is a member of the American Academy of Matrimonial Lawyers and has been a "super lawyer" since 2007. Unlike most of our interviewees, Haynes has formal education in the area of mental health, having attended the Columbia University School of Social Work. Haynes handles 2-3 mediations per week and 3-4 full trials in divorce lawsuits each year. See http://www.fhklawyers.com/ for a full biography of this Louisville-based litigator and mediator.
Divorces in Kentucky are started by a "petitioner" against a "respondent" and typically go from filing to trial in 6-18 months. Haynes cautions that "then you have to wait for the opinion, which could be anywhere from 1 to 10 months after the trial, depending on the judge." Depending on the county, there may be mandatory mediation, e.g., for two hours, in divorce lawsuits.
What if a petitioner doesn't want to wait that long? "It is possible to get a temporary order for maintenance, child support, parenting schedule, and pre-trial division of some assets," said Haynes. Is it like Massachusetts where these potentially momentous decisions are decided based only on attorney representations ("the other lawyer's client is a horrible person")? "No," said Haynes, "they are evidentiary with witnesses and the potential for cross-examination."
Is it easy to for a petitioner to get the respondent out of the house at this temporary hearing? "No," said Haynes. "not unless there is violence. We call them 'icebox divorces'. If you can prove that the child is feeling the tension maybe the court would make someone move out. Sometimes people agree to nesting arrangement [in which the child stays in the house and the parents come and go], which a judge could also order." Are divorce litigants tempted to make false violence claims? "Here a lot of cases do start with a domestic violence allegation because that is the quickest way to get the other party kicked out of the house," Haynes responded.
Child support flows until a child turns 18 or graduates from high school, whichever is later, but in no event beyond than the 20th birthday. Judges in Kentucky cannot order a parent to pay for college. "I'm looking out across the river to Indiana right now," said Haynes, "and they can make a parent pay. It is beyond irony that four years of college and three years of law school are required to be a lawyer and yet judges don't see the sense in requiring college expenses at least minimally to be paid."
Haynes says that consumers can reliably calculate child support from court-published guidelines, which cover combined parental incomes up to $180,000 (pre-tax). "Above that [$14,700 per year for a single child] the court will do a deviation if you can prove that the costs associated with raising that child have been higher than that guideline. If that child during the marriage was in a country club and taking horse lessons a judge can go above that. Where it gets difficult to predict is in a paternity case where there is no history of a lifestyle for the child." What about day care or medical expenses? "Those can be ordered on top of the basic child support guideline." Can a Kentucky petitioner get to the $100,000 per year in child support, plus all expenses paid, that a California, Massachusetts, or Wisconsin plaintiff might obtain? "Kentucky case law and courts are very supportive of the three-pony rule. The largest amount that I've ever seen for a single child is about $6000 per month for one child." Was that $6000 per month paid to the mother plus additional money for actual expenses such as private school tuition? "No," responded Haynes. "That was the total amount and it included the private school plus travel that I was envious of."
Although the top of the Kentucky guidelines, $14,700 per year for a single child, is higher than the caps in place in Denmark, Germany, or Nevada, a child with the same $180,000 defendant would yield roughly $24,000 per year in California, $32,136 in Massachusetts, and $30,600 per year in Wisconsin. The difference is easier to appreciate when looking at multi-year totals: $264,600 over 18 years in Kentucky versus $739,128 over 23 years in Massachusetts, for example.
Note that if Kentucky is a tough place in which to fund a stable of ponies from a child support order, the state is relatively generous with foster parents. Kentucky reimburses foster parents for expenses at a higher rate than does California, Massachusetts, or Wisconsin (nearly double the Wisconsin rate).
Kentucky does not have a standardized method of calculating child support in shared parenting situations. "Most judges calculate him to her and then her to him and subtract," says Haynes. "Other judges use the Colorado method."
A stream of child support revenue is less secure in Kentucky than in other states. Haynes says that he would tell a divorce litigant with a toddler "Before the child turns 18 there will be at least three major changes in parenting schedule." Each change has the potential for an altered child support amount and, unlike in some other states, a parent need not show a "substantial and material change" but only that there is a good reason why a change would be in a child's best interest.
Haynes believed that a "walk-away" prenuptial agreement to keep property separate and waive alimony would likely be upheld. "Our state supreme court has given a couple of opinions that are unusually detailed and exacting regarding what is a valid prenup," he noted.
The average hourly wage in Kentucky is $18.72 per hour. Census 2014 data show that median income for a 22-36-year-old college-educated woman working full time is $40,000 per year ($30,352 after tax). A corresponding man has a median income of $45,000 per year ($33,804 after tax). The state collects 9.5 percent of residents' income to run state and local government. This compares to 7.3 percent in neighboring Tennessee and to a national average of 9.9 percent according to the Tax Foundation. Abraham Lincoln, at the outset of the Civil War, said "I hope to have God on my side, but I must have Kentucky."
The average annual cost of child care is $6,594 for an infant and $5,766 for a four-year-old. The total cost of child care from age 0 through 12 is about $41,303 in commercial settings or $37,184 in a family care setting.
The male college graduate will have an after-tax spending power of $390,584 after 14 years of working (14 years of income minus taxes and the cost of college). After adjusting for USDA-estimated child-related expenses, he would be financially better off collecting child support when that support is $2,558 per month or more. This is an above-guidelines amount that is not be obtainable in Kentucky without a defendant earning more than $180,000 and a favorable application of judicial discretion. With two children from two different mothers, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,654 per month, an amount that is still over the top of the guidelines.
The female college graduate will have an after-tax spending power of $342,256 over the same time period. She would be better off collecting child support when that exceeds $2,335 per month. If she is suing two fathers she is financially better off compared to the college/work case when she can get $1,542 per month from each one. These monthly numbers are above the top of the Kentucky guidelines and would require judicial discretion to obtain.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
The parents here would have joint legal custody according to Haynes. What does that mean? "There is no definition in the statute," he responded. "Joint custody is simply decision-making in four areas: religion, medical, education, big social things. This is a change from 15 years ago when it is easy to get sole custody." Like lawyers in other states, Haynes said that this was a distinction without a difference in most cases: "It is a feel good thing. There is no practical on-the-ground difference. It has saved a lot of people money [in attorney's fees], however, because they would otherwise be fighting for sole custody." What does it take now to get sole custody? "To be awarded sole custody," Haynes responded. "You have to show that the other parent is neglectful or detrimental to the health and safety of the child."
Can the mother become the primary parent as in most other states? "The word 'primary' has no meaning anymore in Kentucky," responded Haynes. "Assuming this dad wants to wake up [and start being more involved with the child], the court's preference is always for a parent to take care of a child rather than a nanny or day care. If the father proves himself he will get time while the mother works as long as it is convenient." Does that mean a 50/50 schedule? "No," responded Haynes. "He cannot get 50/50 immediately. The schedule will change as the child gets older. Judge will give him some time and then say 'come back in six months'."
What does the child's schedule actually look like? "This is what I call a 'fireman case'. The attorneys and judge would look carefully at the surgeon's schedule and try to work something out. In mediation we would come up with a compromise where the child is with a parent with almost all the time. It might be that the parents would alternate weekends and, during the week, he would get the majority of day time and one or two overnights." Would a judge let a one-year-old be with the father from Friday afternoon until Monday morning? "No," said Haynes, "not until age 3 or 4. Until then it would just be a Friday night and Saturday night weekend. It might settle into a schedule where the child was with the father 6 out of every 14 nights."
Do psychologists get involved in Kentucky custody disputes? "Yes," said Haynes. "The easiest thing for a judge to do in a disputed custody case is appoint a Guardian ad litem, who could be a mental health professional or a lawyer."
Note that, compared to many other states, Kentucky gives relatively more weight to optimizing a child's schedule and less weight to minimizing the number of times that a schedule must be modified, either by agreement or by the court.
What happens with child support? "With her income and his imputed at $35,000 per year he won't be paying much if anything in child support. She might be paying him starting at 6/14 nights. It depends on the judge."
How much will this case cost to litigate? "That's a question clients wisely ask all the time. I charge $295 per hour," said Haynes. "Three months ago I finished a trial and my bill was $3,000. Last year I finished a case that had gone on for years and featured a lot of discovery. The bill was $250,000. $25k might be a good median per side." Given that the defendant doesn't have a real job, can he get the plaintiff ordered to pay his costs? "The statute says the judges may order attorney's fees in a divergent income situation," says Haynes, "but it is very unpredictable."
Can he get alimony after this short marriage and in light of his dalliance with the fashion model? "We're a no-fault state," said Haynes. "The affair might have made a difference 10-15 years ago and today may be in the back of the judge's mind. In this case it won't be significant since alimony is typically about one third of the length of the marriage and one quarter of the difference in incomes."
What about property division? Can he get a larger share on the basis that while she has been honing her surgical skills he has been concentrating on Xbox and therefore will have a lower earning capacity? "Kentucky is a separate property state, though the laws operate very similarly to those in a community property state. The division has to be fair and equitable." What does that mean? "It does not have to be exactly 50/50, but there is case law saying 90/10 is not fair and equitable. With older couples if one party has no earning power and the other has a continuing career you might see a 65/35 split."
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
What if these people both come to court demanding to be made the primary parent, can the judge order 50/50 custody despite neither party asking for it? "The court will always want to do what is in the interests of the children," said Haynes, "and this is as prime a 50/50 situation as you've got in these scenarios." But what about the conflict? In Massachusetts, for example, one or both parties asserting that they didn't get along with the other litigant would be sufficient to block shared custody. "That might be a reason for a court to revert back to sole legal custody. You can have sole decision-making for one parent and a 50/50 parenting schedule for the children." Do courts go back to sole legal custody pretty easily then? "No," said Haynes. "The court will start by threatening to impose a parenting coordinator [PC] so that day-to-day disputes are resolved by that person. The PC can tell the father to return the tennis shoes or the mother that the child can be in the Boy Scouts."
What about the 3-year-old? "A week-on, week-off schedule could be hard on the youngest child here but he or she will have the support and companionship of the older siblings," said Haynes.
What about the fact that opponents of 50/50 presumptions and guidelines who say that a 50/50 schedule prolongs and exacerbates conflict between the parents? "That hasn't been my experience," said Haynes. "Generally a 50/50 parenting time award helps people get over the divorce." Who are the exceptions to this general rule? "A mother will sometimes say that it is unfair because 'I was the one who raised the kids.'"
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
"The judge will give him every other weekend, Friday afternoon to Sunday evening, and maybe Wednesday overnight with a look-see later," said Haynes. What happens at the modification hearing or, perhaps, the trial following 18 months of litigation? "If the dad is doing everything right the court will probably give him more time. It might be too much to get up to 50/50 given his career choice."
Child support at the top of the guidelines is a tax-free $22,128 per year for two children. What about alimony to supplement this? "By custom a software program from Craig Ross is used," said Haynes. "Judges swear that it is just a guideline for them and not determinative, but the orders are usually pretty close. The wife here could expect to receive alimony for about four years at $7,000 per month or more." Is child support calculated before or after the alimony? "After," said Haynes. Will additional income be imputed to her? "No," responded Haynes. "We have a very specific statute that does not allow imputing income to a parent who is with an under-age-4 child most of the time. In addition to the alimony she would get pretty close to the top of the chart for child support."
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
"He will get no more than 1 or 2 overnights per week, not consecutive," said Haynes. "She will get top-of-the-guidelines child support." What about her claim on the $2 million in pre-marital savings? "Kentucky is a 'source of funds' state where the money came from defines ownership." What about appreciation on the assets during the marriage, as would be dividable in many states? "Passive appreciation on non-marital assets remains non-marital." What if she wants to collecting alimony and child support based on the income from the assets but they aren't yielding very much due to a low-inflation environment. Can she ask a judge to impute a higher interest rate to the asset? "I have seen arguments to impute income to assets," said Haynes, "but they were not successful and only the actual income was considered. The judges ask 'Why would he be hurting himself?'"
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
"I very frequently work on cases where the acquaintance was brief," said Haynes. Is there a socioeconomic pattern to these cases? "No," responded Haynes. "It is from the highest CEO level down to the unemployed."
Absent judicial discretion the financial rewards to the mother are limited to the top of the guidelines, $14,700 per year, plus reimbursement for medical expenses and attorney's fees. That doesn't seem like enough to warrant hiring a serious litigator such as Haynes. "I tell mothers that they don't need to hire me," he said. "They can get a state agency to do everything for them, including establishing paternity and obtaining a child support order."
Can a mother wait indefinitely and get child support back to the child's birth, as in many states? "No," said Haynes, "that only works prior to age 4. We have a statute in Kentucky that if the child is 4 years old the child support is retroactive only to the point of filing. We have adopted the concept of laches, which means that a person cannot sit on legal rights and come back to court years later."
What if she marries the owner of a coal mine and moves to a horse farm outside of Lexington? "Marriage will not cause her child support to be reduced," said Haynes, "unless she has quit work as a result of a marriage in which case income at her former level can be imputed to her. In this case, which is already at the top of the guidelines, it wouldn't make any difference."
The first response to our question about relocation was "these are tough cases." That is consistent with what attorneys in other jurisdictions told us. Is Kentucky like Massachusetts and Mississippi in wanting to give a custodial parent a right to move for the parent's benefit? "No," said Haynes. "It is a strict best interest of the child standard. We have relatively recent case law on this question and one of the reasons that the term 'primary' has been gutted is that being designated 'primary' used to give you an almost automatic right to move." As a practical matter, who can move? "A woman's chance of prevailing against an every-other-weekend father is good but she would have to make an accommodation, e.g., on summer and school vacation schedules. It becomes much harder to move as the child's schedule gets closer to 50/50."
What does Haynes think of the fact that courts in a lot of states don't have too much trouble concluding that a move away from the every-other-weekend parent is in the child's best interest? "Parental relocation is generally a terrible thing for children," he responded. "Just the fact of being separated from one of your loving parents is an unfairness to the child."
Kentucky assigns different cash values to different children from the same parent. In figuring "combined monthly adjusted parental gross income", there is a subtraction for "The amount of pre-existing orders of current child support for prior-born children." Thus the first person to sue gets the most cash and each subsequent plaintiff gets less.
Unlike in many other states, children of an intact marriage have an explicit entitlement to support. A defendant who is married with a spouse and six prior-born children to support would pay less in child support than a defendant at the same income level who was single. Kentucky allows a deduction from gross income of an "imputed child support obligation" for those marital children.
As in most other states, Kentucky provides financial incentives to have children with multiple co-parents. At the top of the guidelines, three children with one co-parent produce $497,880 in child support revenue over 18 years. Three children with three different co-parents, on the other hand, yield $793,800 in child support.
Kentucky's citizenry can be colorful and the state allows "one party" recording in which only one person in a conversation is aware that a recording is being made. Haynes told us that "A post-divorce father with minimal time came into my office wanting to spend more time with his child. He managed to record his ex- and her boyfriend cussing him out with the child in the vicinity. I put the boyfriend up on the stand and asked if he ever said certain kinds of things to my client. The boyfriend denied it all very credibly. Then we played the recording, of which the boyfriend and the ex- had been unaware. We got a 50/50 schedule."
Asked what he would like to see from the Legislature, Haynes responded "More detailed statutes with regard to the finances in 50/50 parenting. Right now there are fights over soccer equipment, painting lessons, ballet lessons, and who is going to pay. It would be good to have that cleared up."
Haynes also wanted to bring back, via statute, the freedom to go to arbitration, which Kentucky citizens formerly had. "We were all stunned by a state supreme court case that shot down arbitration in divorce cases." [Note that arbitration is binding, unlike mediation.]
What about trends and what is going to happen? "I think that there will be a codification of alimony by the Legislature," said Haynes, "and it will scale back long-term maintenance awards for healthy people in their 30s and 40s." What about a corresponding reduction in judicial discretion regarding custody? "There has been and will be a greater trend toward 50/50 parenting," said Haynes, "but I think it will be by custom rather than statute. Having done exclusively family law for more than twenty years I have seen a visible change in attitude by fathers. They want to be more involved now and their desire is bolstered by prevailing social mores." Why aren't all of the divorced dads already more involved? "The most dramatic examples are the alienation cases where the mother poisons the children to the point that the dads get frustrated and walk away. They become a minimal presence in their children's lives." What is the point at which the father actually snaps? "I remember one mediation that went on for hours. The case involved three teenage girls and a very possessive mother. When we were alone in the room the father finally turned to me and said 'Why would I fight to spend time with these kids who hate me, don't want to be around me, and are surly and unbearable when they are with me?'"
"One tsunami moving across the country is the gay marriage situation," said Haynes. "We have a statute from 1998 that defines marriage as being between one man and one woman, but a federal court judge has ruled that it is unconstitutional." Where do Kentuckians stand on the issue? "There has been a shift in public approval and it is now about 50/50," said Haynes, "while lawyers ask 'What's so special about gay people that they get to avoid the horror of divorce?'" How does it work to be a state where gay marriage is illegal in a country where at least some states allow same-sex marriage? "I've got a case right now [August 2014] that a local judge is hanging onto. It is a lesbian couple with no children. They were legally married in Massachusetts. One spouse is a disabled Iraqi war veteran. The court system refuses to divorce them, which means they would have to go back to Massachusetts and live there for a year to get Massachusetts jurisdiction for the divorce." What does Haynes think of the conundrum? "If you're against gay marriage, why aren't you in favor of gay divorce?"
[Family Law in America (Katz 2014; Oxford University Press) talks about one solution to the conundrum: "the District of Columbia passed a statute in 2012 that may represent a new way forward for same-sex couples seeking divorce: under D.C. Code § 16-902, a same-sex couple who married in the District of Columbia may seek a divorce in the District even if they no longer reside there, so long as neither spouse is a resident of a jurisdiction that recognizes same-sex marriage."]
With its trend toward 50/50 parenting, Kentucky shows how much a state's outcomes can change even if statutes don't change that much, especially if the financial stakes are not very high.
Via its high foster care reimbursements and child support guidelines that are only slightly above USDA-estimated actual costs of child-rearing, Kentucky joins Nevada as one of the states where foster children and the children of child support plaintiffs have the closest entitlements to financial support.