Spousal Loss of Consortium in Kentucky Wrongful Death Cases

Today the Kentucky Supreme Court released a unanimous opinion that brings Kentucky in line with the majority of the rest of the country. The ruling allows a loss of consortium claim in wrongful death cases. Prior to this ruling Kentucky was one of only four other states that refused to allow a loss of consortium claim in wrongful death cases. The change comes about in the wake of the tireless efforts of numerous individuals especially the families of the victims of the Comair 5191 crash. The full text of the opinion can be read here.

I Need to Take 1/2 of a Permanent Vacation

In a case that has potential ramifications for future divorce litigation, the Illinois Supreme Court heard oral arguments on Wednesday about the divisibility of accumulated vacation days. The Quad City Times reports that at issue is whether a non-employee spouse is entitled to a share of the value of accumulated vacation days. The trial court had awarded the wife $15,000 as her share of her husbands days finding that the days were akin to money in a savings account. The ruling was reversed on appeal and then granted discretionary review.

It should be interesting to see how this pans out. I would imagine that the Court's ruling would have to take into consideration how the accumulated days are treated by the employee spouse's employer. For instance, if the days are treated as a benefit that can be liquidated or compensated upon separation from employment, I believe there would be much more support for a ruling favoring their divisibility. However, if the employer's benefit package is more of a "use it or lose it" form, I do not see how the Court can divide an asset in which the employee spouse is not truly vested.

The next step could very well be an argument that one spouse is dissipating marital assets by using vacation days to take off from work to attend divorce proceedings in which the vacation days are being divided by the court. Stay tuned.

Visitation? Time-sharing? Why Not Memory Time?

In the course of handling numerous family law cases and mediating such cases for other attorneys, I talk with people who get hung up on the semantics of referring to time with the children as "visitation." Others hate to refer to it as "timesharing" or "parenting time." Arguments usually go something like, "I'm not a babysitter or some visitor, it should not be "visitation." Likewise, I hear, "My kids are not condos, why should it be called timesharing?" or "I don't stop being a parent just because I am not with my kids, why call it parenting time?" The fact of the matter is that in the event of a divorce or two-household (or more) family, the court has got to delineate how the child's time will be divided between (or among) the litigants. Moreover, other than whatever slight ego-bruise someone gets from whichever term the court uses, the main thing is that you get to spend time with your kids.

I was fortunate enough that my parents never got divorced (as a matter of fact come November they will celebrate forty-six years together). However, when I was about thirteen, my mom took a job that required her to work on Saturdays. Since I could not drive yet, this left me and my dad home by ourselves. It became a tradition that we would fix Polish sausage with grilled peppers & onions, watch old war movies or Westerns and discuss politics & history. My dad and I were pretty different when I was growing up. He was more of an outdoorsman, while I was more of bookworm and a geek (surprise!). Nevertheless, we found a way to connect in a way that really seemed kind of inconsequential at the time. Looking back on those times twenty-plus years later, those are some of my favorite memories. Just me & dad visiting together over lunch and old movies, sharing time, parent & child. I really don't care what you call the time we spent. To me, it was pretty awesome.

Mediation: Here's Your Chance

A growing number of courts are requiring parties going through family law cases to attempt to mediate their disputes before they are given a hearing date. I admit, I used to be a mediation naysayer before cases I sent to mediation kept getting settled. Now, I actually mediate cases for other lawyers and have a pretty good success rate.

What I have found is the great advantage of mediation is the fact that it actually puts the power back in the hands of the parties. By going to a final hearing, you are entrusting your family and your future to a judge whose only knowledge of your family is what he/she learns from reading the pleadings and what she can learn in just a few hours of a hearing. In mediation, the parties are free to craft an agreement that may not work for any other family, but it actually works for that family. The odds of having a successful mediation are increased exponentially by actually preparing for your mediation.

I am consistently amazed with the number of people who show up for mediations completely unprepared. While you do not necessarily need to bring every exhibit you would introduce at a final hearing. If you are going to discuss child support, you should at least bring your income information.

Another opportunity that many people never take advantage is to send information to the mediator before the mediation. Whenever, I schedule a mediation, I send a letter to the parties or their attorneys and to explain the process to them and inform them that I will review any information they wish to send me ahead of time. Some don't send anything and some send a few of the pleadings. However, the ones that improve their chances of success the most are the ones that actually write up a brief summary of their case and provide the mediator with a frank evaluation of the merits of their case, its relative weaknesses and what points on which they are willing to give ground. Such letters are kept in the strictest of confidence by the mediator, but still give the mediator an idea of what issues are most important to that party. Often being able to identify the issues that can be resolved the easiest, helps build momentum and increases the chances of resolving the bigger issues.

People find that, in the long run, they are much happier and satisfied with a mediated result which they had a hand in crafting than with one that is forced on them by the judge. Your chance of getting such a result are greatly improved with a little planning. This is your chance.

Refuse to Wean, Then Get a Machine

I'm sorry, but I could not resist using that quote from an article from Canada's Globe & Mail. The article details the ruling of an Ontario Superior Court judge who told a mother that insisted on breastfeeding her child that she would either have to wean the child or use a breast pump in order to allow the father to have reasonable visitation with the parties' child. The mother had historically used a rigorous breastfeeding schedule to frustrate the father's time with the child. By the time the judge made the ruling, the child was 29 months old and still being breastfed. This case was actually reported by the American Bar Association as well. It actually not that rare of an occurrence.

Here in in Western Kentucky and Southern Illinois, I have had cases involving mothers of infants who insist that they absolutely, positively must breastfeed their child. Speaking as a father of two healthy children, I completely agree that mother's milk is the way to go. I have read material from the La Leche League and talked to doctors, nurses, etc. over the course of presenting, defending and attacking such cases (one in which a mom actually wanted to breastfeed a child until they were five years old/starting kindergarten). The simple fact is this, the mother's desire to breastfeed must be carefully weighed against the father's right to bond with the child.

In the eyes of every judge I have had the issue before, whether male or female, they have all ruled the same, a child has a right to have a relationship with both parents. Like it or not, it is as it should be.

Fighting the Urge to Fight for the Kids

It surprises me how often parents are willing to entrust a complete stranger, someone who has never met them or their children, with deciding their family's future based on what that stranger can learn about them in a relatively brief hearing.

As many of you who know me or have spent any time perusing my firm's website know, I mediate a number of cases for other attorneys. I begin by discussing the process and explain to the participants that mediation is their chance to take control of their own destiny and their family's future.

Several weeks ago I handled a mediation in which, I thought the parties were close to an agreement in which they would essentially each see their child for about half the time. At the last minute, one of the parties pulled out of the mediation because this party wanted to go to court so the child would not think that this person had not fought for the child. I saw one of the attorneys involved in the case recently and asked how it turned out. The person that wanted to "fight for the child" lost and now will only see the child about every other weekend instead of fifty percent of the time.

Occasionally, there are certainly instances in which someone should not appease the other side simply for the sake of settlement, for example, if the child would be somehow endangered by liberal time with the other parent (e.g. instability, physical abuse, etc.). In those instances, it most certainly is warranted to have your day in court. What I see on a regular basis are people who refuse to reach a compromise simply out of a misguided sense of ego and pride. These are the people who simply cannot bring themselves to reach an agreement with the other parent because they have built up such animosity towards the other party that any agreement would equate to some sort of capitulation that their pride will not allow. These people usually rationalize their decision by saying they are fighting for their children.

Custody litigation is some of the most brutal and personal litigation that there is. It is akin to bare knuckles boxing in which the most minute human frailty is exposed, laid bare and then blown out of proportion. Every skeleton is forcefully ripped from its closet and every family secret is told. In warzones such as these, everyone is affected, especially the children; no matter what you think. Moreover, there is rarely an easily discernible "winner" but it is usually pretty easy to tell who walks out feeling like they lost. Usually, it's everyone and the family is never the same. So, if you ever find yourself in the situation where you feel like you need to "fight for your kids," stop and think about whether it's that urge that your really need to fight.

Guy's Night Out at Maiden Alley a Big Success

A big thanks to everyone who turned out for the first "Guys' Night Out" at Maiden Alley Cinema sponsored by the Alford Law Office. The White Russians were flowing in honor of the feature, "The Big Lebowski."

Everyone had a great time and I look forward to seeing more people in June for the next feature. Stay tuned to the MAC's website for more info.