Jul 6, 2020
Episode 9: Louisville criminal defense attorney Tim Denison welcomes his colleague, Louisville divorce attorney Christine Miller, to discuss how criminal records and divorce can intersect and what steps you may need to take.
Divorce is a sensitive topic to a lot of people. They’re very emotionally charged. An important issue to remember is that criminal records can come into play.
Preparing for Battle
If there’s going to be a custody battle, especially when there is a criminal record, Tim always does background checks on both parties. This allows Tim to have complete control of what may happen in cross-examinations. It also allows Tim to be two steps ahead in the process. The most important thing he looks at is to determine whether these charges can be expunged. An expungement is a permanent erasing of a criminal charge from your record. Legally you will be allowed to say, “That never happened.”
Today, everything is online, which gives lawyers, or really anyone, the opportunity to look up a name and see their charges. All the information they find, they can use in court. If it is expunged, they will not be able to find it. Always look into getting charges expunged because it may not be as easy to get one in the future.
Not every criminal charge can be expunged, but now 61 Class D felonies and a lot of misdemeanors can be expunged. Violations and misdemeanors typically can be expunged, unless they relate to or have some elements of sexual abuse or abuse of any person who may not be able to defend themselves. The charges remain on your criminal record unless you expunge it. Most judges will see today that you took initiative and responsibilities for your actions and did everything you could to get it removed. Judges look very highly on that. Click on this link to listen to Tim’s podcast episode about expungements.
It is important to note that a DUI is different. It will remain on you record for 10 years because it has an extended lookback period. If for some reason in the middle of a divorce one of the parties is charged with a DUI, the facts will be extremely relevant to the ongoing divorce, especially if children are involved. The charging document will have a lot on it that can be very helpful, like what you may have blown and the circumstances. As with a misdemeanor, if a case is dismissed you can expunge it in 60 days.
Felony & Misdemeanor Charges
If you plead guilty or if you are convicted at trial, it is 5 years from either the conviction date or the expiration of probation. If a felony is dismissed without prejudice, you don’t always want to run back in and seek to expunge that immediately. That being the case, because if it is without prejudice, the commonwealth attorney can bring it back. If it is less than a year, you will have to get the commonwealth attorney involved, but if it goes beyond a year, they won’t even ask.
One of the important questions Christine will often ask her clients is, “What is the worst thing they are going to say about you?” Divorce is emotional and everyone can be out for blood. If something legally comes up, she will have them call Tim to get it expunged then go to court afterwards.
Domestic Violence Orders
A domestic violence order (DVO), are civil matters. They show up when you get a job and do a background check. An emergency protective order (EPO) and an inter-personal protective order (IPO) will show up as well. Employers are scared to see those and now you can get these expunged.
If possession comes into play, an important thing to remember is that family cases are not in front of a jury, it is only a judge. When judges see there may be a drug charge from years ago, it will still have an impact on their decision.
Do You Need to Modify the Divorce Decree?
When everything is said and done and you come back to court for post-decree modification, most of the old criminal charges will not come into play. If there are new charges, then they do have the possibility of being brought up.
Another thing is if one of the parties decide to date and their new partner has a background, criminal records could also come into play. If you think their new partner does have an issue, you should contact your attorney immediately.
Contact with Christine Miller:
Office Phone: 502-333-9223
Tim’s office phone number is (502) 589-6916. You can learn more via TimDenisonLaw.com. Tim’s principal office is located at: 235 South 5th St., Third Floor, Louisville, KY 40202. The information from this podcast is for informational purposes only and does not establish an attorney-client relationship. Co-host Jim Ray is a non-attorney spokesperson. This is an attorney advertisement.