McBrayer Newsletter July 2012 - This is an advertisement

July 2012

Volume 2, Issue 7

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Family Law

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About the Author

Brittany Blackburn Koch, Esq., is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch's practice focuses primarily on family law, employment law, criminal law and civil litigation. Ms. Koch has served in numerous public service roles, including representation for Fayette County Bar Association Domestic Violence Pro Bono Advocacy Program. She is actively involved in various organizations and committees, including the Board of Directors for Court Appointed Special Advocates (CASA), Young Professional Committee of Lexington Public Library Foundation, Fayette County and Kentucky Bar Associations, and Centre College Alumni Association.

Ms. Koch may be reach at

(859) 231-8780, ext. 300, or at [email protected]

____________________________

McBrayer video

Employment Law

- Vacation Pay at Termination: What's your Policy?

Read more here.

-Shortening Statutes of Limitations for Kentucky Civil Rights Act Claims by Agreement.

Read more here.

- Consequences of Misclassifying Workers as Independent Contractors.

Read more here.

Health Care Law

- House Bill 1

Read more here.

-Supreme Court Ruling on the ACA

Read more here.

-Fraud, Waste and Abuse

Read more here.

"It's Not My Debt - Do I Have to Pay?"

Division of Debt in Kentucky Divorce Actions

Brittany Koch, Attorney

Among the most complex issues associated with divorce is the division of debt. Many couples are aware that few exceptions exist to the general rule that property acquired during the marriage is presumed to be "marital property" and is subject to an equitable division. But how does the Court treat debt accumulated during the marriage? What happens, for example, when one spouse has accumulated substantial debt for expenses such as clothing, vacations, and luxury items? The answer may surprise you.

In Kentucky, debt accumulated during the marriage is treated differently than property acquired during the marriage. The Kentucky Supreme Court has specifically held that unlike property, there is no statutory presumption that debts incurred during the marriage are marital or non-marital in nature.[i] Instead, the Court utilizes five primary factors to determine whether a debt is marital (i.e., the debt will be equitably divided between the parties), or non-marital (i.e., the debt belongs to one party alone).

First, the Court will determine who received the benefits for which the debt was incurred. If a debt was incurred for the benefit of both husband and wife, then the Court will typically classify it as a marital debt.[ii] This often occurs with an outstanding debt on a marital residence. Importantly, however, a debt that a party incurs for his or her sole benefit is assignable to that individual alone.

[iii]

Second, the Court will consider the extent of participation of each party in accruing the debt. If, for example, the Court determines that a party took out a loan without the knowledge of the other spouse, and the loan did not benefit that spouse, then the Court may assign that debt solely to the party who acquired it.

[iv]

Third, the Court will consider whether the debt was incurred to purchase assets that are designated as marital property. Debts used for purposes other than those designated as marital property are less likely to be deemed marital debt. If, for example, the parties use a portion of debt for improvements and maintenance to the marital residence, then the Court will likely find that debt to be marital. If, however, one party uses loan proceeds for personal expenses, then the Court may likely assign the debt for such expenses solely to that party.

[v]

Fourth, the court will consider whether the debt was necessary to provide for the maintenance and support of the family. Where the debt is incurred primarily based upon the decision of only one party, however, the court will not assign it as a marital debt. If, for example, one party incurs debt to enroll a child in an expensive private school despite the other party's objection, the Court may assign that debt solely to the party who incurred the debt.

[vi]

Fifth, the economic status of each party is considered in assigning any debt. 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 such debt.

[vii]

Finally, it is important to remember that the Court will consider all of the circumstances surrounding the debt, and no particular factor is necessarily determinative. As a result, and given the complex and intricate nature of debt division, it is imperative to have an attorney experienced in family law to ensure that your interests are protected.

Even though the content in the McBrayer, McGinnis, Leslie & Kirkland, PLLC newsletter is primarily informative, state and federal law obligates us to inform you that THIS IS AN ADVERTISEMENT. You have received this advisory because you are a client or friend of the firm.

McBrayer Planning & Zoning video

Jason Morgan

Jason S. Morgan

Jason S. Morgan joined the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC in January of 2012. He has worked in the legal, real estate development and insurance industries for well over a decade. Jason also has extensive experience with residential and commercial construction.

Jason actively represents large, small, established, new real estate developers and homeowners beginning with the planning phase of a proposed development through zoning changes, development plan approval, financing and the land acquisition processes. Jason has been involved with zoning matters at planning commissions and other local planning and zoning bodies. He has worked on controversial zoning matters and understands first-hand the hard work and skill involved in building support and presenting a case to achieve a favorable outcome.

Jason's planning work begins with analyzing the community impact of proposed developments and proactively balancing clients' interests with community needs and governmental review. Experience has taught Jason the value of fostering good working-relationships with government representatives and design professionals who are instrumental in successful planning, zoning, urban and non-urban development.

Jason also garnered insurance claims and litigation experience working with a Gulf Coast catastrophe insurance service provider handling property damage claims associated with Hurricanes Katrina, Rita, Wilma, Frances, Charlie and Jean. Jason likewise handled Department of Insurance compliance issues in Florida, Mississippi, Louisiana, Alabama, and Texas involving complex claim handling and complaint resolution.

Jason graduated from Salmon P. Chase College of Law, Northern Kentucky in 2004. He received his B.S. from the University of Kentucky in business administration and MBA in 2000. He is admitted to practice in The Supreme Court of the United States, Ohio and Kentucky state courts; U.S. District Court, Southern District of Ohio; U.S. District Court, Eastern District of Kentucky; and U.S. Court of Appeals, Sixth Circuit. Jason is a member of the Ohio, Kentucky, Northern Kentucky and Cincinnati Bar Associations and Ohio Association of Civil Trial Attorneys.

Jason volunteers for several Kentucky/ Ohio organizations including Legal Aid of the Bluegrass, the Northern Kentucky Bar Association, and the Muscular Dystrophy Association. When not working, Jason enjoys playing golf and traveling.

Christine Westover

Ms. Westover has extensive experience practicing law in both the public and the private sector since her graduation from the University of Kentucky College of Law in 1984. She was hired immediately after law school by the Lexington Fayette Urban County Government, a merged urban county government, where she handled a wide variety of legal matters ranging from real estate, bankruptcy, personnel matters, litigation and providing legal advice to myriad governmental divisions, boards and agencies such as the Greenspace Commission and the Police and Fire Pension Board.

The focus of Ms. Westover's experience and area of practice is land use law since her assignment in 1991 as legal advisor to the to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. As a consequence of her responsibilities Ms. Westover developed an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also developed significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters.

Ms. Westover left the Urban County Government in 2004. She has been at MMLK since that time, handling a wide variety of land use matters for clients in the private sector. For example:

Represented a regional developer of student housing to rezone and obtain final development plan approval for a 650 bed apartment community. The project required drafting and approval of a text amendment to allow greater density on the same lot in the high density residential zone in which it was located.
Drafted a zoning ordinance text amendment to allow adaptive re-use of older warehouse and industrial properties in the urban areas. The text, which was approved, has allowed numerous developers to apply for approval to adaptively reuse their properties without having to obtain a zone change. Ms. Westover represented clients on Manchester Street in the Distillery District, Angliana Avenue and on Jefferson Street to apply for and obtain approval of their adaptive reuse developments.
Represented The Lex, a residential and commercial mixed use development at the site of a former warehouse in inner Lexington in successfully rezoning the property and obtaining final development plan approval. Represented a client in rezoning an unused inner city building for a new use as a restaurant with a large student following near the University of Kentucky.
Worked on several tax increment financing applications in Lexington and elsewhere in the state to obtain TIF funding from local and state government. Projects include one in Oak Grove Kentucky for development of a mixed use project near Fort Campbell and several in Lexington off of South Broadway in an older industrial area.
In addition to representing clients in front of planning commissions and local legislative bodies, she has appeared before boards of adjustment to obtain conditional use permits, variances and similar relieve form the zoning ordinance; Represented wireless communications facility clients to obtain planning commission approval of site plans and cell facilities.

Jon A. Woodall

Jon A. Woodall, a member of the firm, joined the McBrayer team in 1994. Mr. Woodall has a broad range of legal experience gained through 16 years of practice throughout the Commonwealth of Kentucky and the various states where his clients conduct business. Mr. Woodall's practice is concentrated in the areas of construction law and commercial litigation. He counsels his clients on issues relating to contract formation and performance as well as the litigation of complex construction and commercial disputes (including water intrusion/mold claims) at the state, federal, and administrative levels. Mr. Woodall routinely represents contractors, developers, builders, owners and their insurers in construction related disputes before administrative bodies such as OSHA, various environmental protection agencies and labor oversight divisions.

Mr. Woodall also operates in the land use planning area and has extensive experience in the defense of eminent domain actions instituted by state and local authorities. He has tried numerous cases to favorable verdicts in most of the circuit courts comprising central, eastern and southeastern Kentucky. He has successfully handled the presentation of many zone map amendment, variance, and conditional use permit requests before governmental bodies located throughout central Kentucky.

In addition to his construction, land use, and commercial litigation practice, Mr. Woodall counsels tobacco wholesalers and distributors on issues specific to Master Settlement Agreement compliance. He has handled litigation relating to MSA compliance in the states of Missouri, Nebraska, North Carolina, Michigan, West Virginia, Tennessee, and Kentucky. Mr. Woodall also has the privilege of representing a number of entertainers and Division One basketball coaches in the course of contract and endorsement negotiations.

Mr. Woodall is extremely active in civic affairs at the state and local level, especially those involving the conservation of our natural resources and the protection and personal development of Kentucky's children. He currently serves as President of the Kentucky Fish and Wildlife Foundation and has been selected as the Chairman of the Board of the High Street YMCA beginning in January, 2012. Jon is also active in youth baseball as a coach in the Eastern Little League.