Why it is so vital to make sure you get and keep your records in a Divorce
I was asked recently how changes in Kentucky’s marriage license forms could affect issues arising from subsequent marriages. I believe ultimately the Legislature will need to revise the language authorizing the various County Clerk’s offices to issue the licenses, but for now using the phrase “The Office of the Boyle County Clerk”, or whatever County it may be, would suffice. In point of fact, the elected Circuit Clerk or County Clerk rarely signs documents or licenses anyway, as that is almost always handled by the Deputy Clerks who greet you at the window.
However, in looking at the question I was reminded of another issue that can arise. The form asks if the applicant has been married before, but there is little other verification that the prior marriage has been dissolved by death or divorce. A person who knowingly misrepresented that fact on a marriage license request would be signing a false affidavit, and when the marriage occurs, be knowingly engaged in Bigamy, a crime in all 50 states.
In Kentucky, while some marriages are “voidable”, others are “void ab initio” meaning there were never given the full effect of law. There is a famous case out of Western Kentucky where the parties had tendered all documents and agreements to finalize their Divorce, including waiving any claim they might have against the Will or other Estate of the other party. Kentucky continues to recognize the rights of “Dower and Curtsey”, which means that even if a man purports to leave the wife out of his will, she can still “elect against the will” as to a great portion of the Estate (and the same would be true of the wife’s will). Unfortunately, in the case in question, one of the parties died before the Judge entered the Decree divorcing them, meaning they were still married in the eyes of the law at the time of Death. The story of unintended consequences ensued, and ultimately the surviving spouse received out of the probate estate far more than she ever could have in the Divorce, to the loss of the other heirs, including the children of the party who died.
But theirs was not the only Decree that had gone unsigned, for one reason or another. It is very possible that other people, reasonably believing they were Divorced, could have remarried. They couldn’t really be guilty of a crime, as they obviously had no intent, or even knowledge, of what they were doing. However, since that subsequent marriage would be void on its face, any purchase of land, application for a loan, filing of a joint tax return, or a myriad of other actions would now also be jeopardized. They were bigamists, accidental bigamists, but bigamists nonetheless.
So how can a Decree be delayed, and how do you protect yourself from problems when a Decree has not been entered?
Obviously the easiest and best answer here is to not do anything until you receive a copy, entered by the Circuit Clerk, of a “Final Decree of Dissolution of Marriage” showing the signature of the Judge hearing the case.
But to ensure you actually get that document there are a few things you can do to help yourself:
PARENTS EDUCATION CLINIC, FAMILIES IN TRANSITION
If you have children, most Family Courts will Order you to attend a Parent’s Education Clinic of some kind. This is usually a short, even one-time, course designed to help divorcing couples understand the effects the breakup can have on the kids, and how to minimize those issues. (I’ll discuss those on another day.) Once that Order is entered, in most Counties the Judge will not sign a Decree until at least one of the parties has attended the class. You, your spouse and the attorneys may have agreed on every possible issue and tendered all documents to get Divorced, but with no certificate of one or both parties completing the “PEC”, the Decree may linger in the Judge’s office, unsigned and un-entered in the Court record, until the certificate is filed. The parties would still be married until that Decree is entered.
PATERNITY TESTING or PREGNANCY
Kentucky law does not allow a Divorce Decree to be entered while the wife is pregnant. When the parties are married at the time of birth of a child, the Husband has legal rights, and is the legal father until proven otherwise and an Order is entered. If the wife is or becomes pregnant during a divorce, regardless of the length of separation (except in extremely rare instances) the Court must determine by some proof, likely DNA testing, that the Husband is not the father. Again, this can cause a Decree to be “tendered” and awaiting signature for significant lengths of time, running the risk that you forget to follow up on the status, and believe you are Divorced, when in the eyes of the law you are not.
NOT STAYING UP-TO-DATE BY SOMEONE
You may have heard the story about four people named Everybody, Somebody, Anybody and Nobody. There was an important job to be done and Everybody was sure that Somebody would do it. Anybody could have done it, but Nobody did it. Somebody got angry about that, because it was Everybody’s job. Everybody thought Anybody could do it, but Nobody realized that Everybody wouldn’t do it. It ended up that Everybody blamed Somebody when Nobody did what Anybody could have done.
In all cases where you are dealing with legal issues, you want to be sure that you stay in touch with your lawyer, the Court, and other parties. The Circuit Court Clerk (as opposed to the County Clerk) will always need your up-to-date address. The Child Support Office, and any Court Order regarding Child Support will advise you that you must keep them up to date with your address, occupation, employer, and income.
Things can fall through the cracks. It is one of the reasons you hire a lawyer to assist you in legal proceedings, even when you think you understand all the issues logically. The legal process has certain rules that may not be known or make sense to the average person. Yes, that is also one reason people tell such great lawyer jokes, but it is also why you want someone who is going to be vigilant in making sure the rules are followed. We, nor any other office, can guarantee you a result in a case. Judges and Juries make those decisions. We can help you make sure your case is given the attention, and the follow up, it deserves.
If you have questions about any legal matter you may be facing, or simply want to confirm that what you think has happened is actually on the record, feel free to give us a call at 859-236-8888. We are here to serve you.