Understanding Kentucky’s Basic Laws for Divorce, Dissolution, or Legal Separation
Sunday, July 3, 2016 by Joseph Ireland
Divorce in Kentucky – Generally
Divorce, sometimes referred to as dissolution or legal separation, is the process of ending a marriage through official court action. It both ends and creates new legal obligations. Kentucky has “no fault” divorce, meaning no one is determined at fault for the breakdown of the marriage. Kentucky simply requires that at least one party believes there is an “irretrievable breakdown” of the marriage with no hope of reconciliation. See KRS 403.025 and KRS 403.170 (Kentucky Revised Statutes).
There are other statutory requirements that must be met to file for divorce in Kentucky. At least one party must be a resident of Kentucky, having lived in Kentucky for at least 6 months (180 days) prior to filing the petition. KRS 403.140. Generally, the wife cannot be pregnant. If the wife is pregnant, you may have to wait until the child is born or the pregnancy ends. In rare circumstances this requirement can be circumvented through specific affidavits, typically referred to as a “three-party affidavit.” If the parties share minor children, the court typically must wait at least sixty days after separation before granting the divorce.
Division of Property and Debts
After a petition for divorce or dissolution is filed, the court must divide property and debts between the parties. If the parties have children together, there must also be an arrangement for custody, parenting time/visitation, and child support. KRS 403.180. If the parties cannot agree upon terms in a separation agreement, the court will make those determinations at trial. KRS 403.190. Pro se litigants (parties who choose to proceed without attorneys) are held to the same standard as an attorney when trying their case and can often find it difficult to navigate their way through the proceedings.
Property is anything you own or in which you have a vested interest. It includes real property such as buildings and land, and personal property such as cash, bank accounts, financial instruments, stocks, furniture, jewelry, automobiles, etc. Your retirement accounts and interests in other properties, companies, or ventures may also subject to division. KRS 403.190(2).
“Marital” vs. “Non-Martial” Property
Marital property generally includes property acquired during marriage, was given to both parties as a gift, or inherited by both parties together. The court will generally try to divide the value of the marital property between the parties in an equitable manner.
If the property was acquired before marriage, or is one of the specific exceptions to ” marital” property then the property will be considered “non-marital.” “Non-Marital” property will belong to original legal owner, but often must be traced back to before the marriage began. KRS 403.190. Examples of “non-marital” property include property that was already owned before marriage, or property inherited or received as a gift individually. KRS 403.190.
Dividing Marital Property
Generally, courts will divide marital property equally. However, a court may give one spouse a disproportionate share of the marital property after it considers the facts of the particular case. The court will consider factors such as each spouse’s income, spousal maintenance, and non-marital property, who contributed to the marital property, which spouse will stay in the marital home, if there are children, and if a spouse improperly destroyed or wasted marital property. KRS 403.190.
In most cases, property or debts acquired after the date of separation belong to the person who incurred or acquired it. However, if debts were incurred to cover basic necessities, it is possible a court will allocate that debt in a different manner between the parties.
Many of my clients incorrectly assume that as long as a debt is not in their name, it is not theirs and cannot come back to haunt them. If a debt is only in one party’s name, it can still be a marital debt that both are responsible to repay. If the debt is in both parties’ names, it belongs to both of you. When dividing the debt the court will consider whether the debt started during your marriage, and whether the debt was incurred for a marital purpose, i.e. it benefited both parties in some way. It is even possible that, without adequate protections in place, one party may be pursued and ordered to pay debts that a divorce court allocated to the other party. This is a common pitfall most people, including lawyers, do not fully understand.
Pensions and Retirement Accounts
In most divorces where one or both of the spouses has pension or retirement benefits, there is no money to divide yet because the spouses have not reached retirement age or the penalties and fees for accessing the money are prohibitive. Nevertheless, pensions and retirement accounts can be marital property and subject to division. The law is complicated and has some exceptions.
We typically use a Qualified Domestic Relations Order “QDRO” to facilitate the transfer of on party’s share of the funds at either a later date or into a new account managed separately from the original account. There are many different kinds of retirement accounts and each account or fund has its own rules that become relevant when drafting a QDRO. It is often necessary to contact the a fund manager directly to ensure your attorney has the information necessary to develop a QDRO that best suits your situation and protects your rights.
As with property and debts, a divorce decree or separation agreement must address custody and parenting time of any minor children. KRS 403.270. If you and your spouse cannot agree on custody or parenting time, the court will make those determinations at trial. The court will make a determination of custody and parenting time based on what it determines to be in the child’s best interest. When determining the “best interest” of the child, the court will consider various factors including, the wishes of the parents, the wishes of the child, the relationship and interaction of the child with the parents, siblings, and any other person who might significantly affect the child’s best interests. The court will also consider factors such as the child’s adjustment to his or her home, school, and community, the mental and physical health of all individuals involved, and information, records, and evidence of domestic violence and drug abuse. KRS 403.270.
Child safety issues are of particular importance and can be a decisive factor in any custody. See generally KRS 600.020. Make sure you discuss any child safety concerns that may exist as earlier as possible with your attorney.
Under KRS 403.211, a parent, custodian, or agency substantially contributing to the support of the child may ask for child support. The action may be brought in the county in which the child resides or where the defendant resides.
Kentucky has child support guidelines courts use to decide how much to set for each parent’s obligation. The guidelines combine the parents’ income, childcare expenses, and other factors to determine the child support obligation. Even if a parent is not working, or is unemployed, courts can (and often do) impute income to that parent consistent with what can be earned at a full-time minimum wage job or consistent with their education and work life. The child support order may also require the payments for health insurance coverage and daycare expenses. You can learn more about child support, how to apply for it, and view the current child support guidelines at http://chfs.ky.gov/dis/cse.htm.
KRS 403.213 also sets the criteria for modification of Child Support orders. In the first year following a child support order, parties can ask the court to change the amount awarded if there is a 25% change in the amount that would be due based on the parties’ change of circumstances. After the first year, the criteria for modification change and allow you to seek a modification if the amount due would change by 15% or more.
Courts may deviate from the guidelines where their application would be unjust or inappropriate. Any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation. KRS 403.211(2).
Spousal Support or Maintenance
In a divorce or separation, the court has the ability to order one party to pay spousal support or maintenance to the other. KRS 403.200. This obligation could be in addition to child support and many other bills. The statute lays out a number of factors a court is to consider when asked to order spousal support. The court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(b) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.
With so many factors at play, it is easy to see how parties can disagree on whether spousal support should be paid. Either party can ask for spousal support and the court has considerable discretion in making an award. If you have questions about spousal support, I recommend speaking with an attorney.
In Kentucky, divorces are tried to a judge, not a jury. KRS 403.010. This is why it is so important to hire an attorney that is familiar with local judges’ rulings and common practices. The best approach in one court may not be the best approach in another.