Divorce
In Kentucky, you must have lived in the state for 6 months (180 days) before you can file for a divorce. Many people have heard the term “uncontested” divorce. An uncontested divorce is one where both parties agree on all issues. It has nothing to do with whether one party wants the divorce or not. It only goes to division of property, custody, parenting time, child support, debts, and maintenance. All of those issues must be agreed upon. Otherwise, the divorce is not uncontested.
Another well-known term is “no fault” divorce. This simply means that the court does not care why you are getting divorced. All that matters is that the marriage is irretrievably broken and there is no chance that you will reconcile.
Property Division
Under Kentucky law, there is a legal presumption that, from date of marriage to date of divorce, all property is subject to being divided in just proportions. As a rule of thumb, we usually work with a 50/50 division of property. This includes your house, vehicles, furniture and household goods, retirement accounts, bank accounts, and other assets. The only exceptions to this presumption occur if a party can prove that they owned certain property before the marriage. In that case, the party must be able to trace that property back to the date it was acquired, and be sure it was not intermixed with property acquired during the marriage. Another exception is an inheritance; in that case, the party who is an heir who inherited property is usually able to keep it, even if it was inherited during the marriage. A gift of property solely to one party may also be considered non-marital. In any of these cases, however, the party must be able to properly trace the non-marital property. In other words, you must have proof.
As you can see, property division can be complex and involve several different legal issues. This is why you require the assistance of an attorney to help you navigate property claims.
Debts
Debts are not treated the same as personal property. Debts are not presumed to be marital in nature, even if they are incurred during the marriage. The court will look at who incurred the debt, and for what reason. For example, if you used a credit card to buy a new couch for the marital home, that debt would likely be marital and subject to division. On the other hand, if one spouse charged a trip to Cancun and went without the other spouse, then the vacationer would likely be liable for the entire debt. So, don’t run out and charge up the credit cards, thinking you may put something over on your spouse!
Maintenance-Alimony
You may be more familiar with the term “alimony,” as that is what they usually say in the popular media but, in Kentucky, the term is called “maintenance.” The purpose of maintenance is for financial rehabilitation of the spouse who will have insufficient income to support themselves after the divorce. The goal is to supplement that party’s income to give them an opportunity to assimilate back into the workforce if they don’t already have a job, or perhaps to acquire more education or skills to obtain a better job. Maintenance is not automatic, and it is usually for a limited duration of time. The longer the marriage and the greater the disparity in income, the better chance one will be awarded maintenance. In most cases, it is awarded in long-term marriages when one party has stayed at home to raise the children, or where one spouse earns a very large income and the other earns significantly less.
Maintenance can be a very complicated process. It is not automatic or guaranteed, and it is rarely forever. Whether you are thinking you will receive it, or whether you are the spouse who may have to think about paying it, there are many factors to be considered. This is why you need an experienced attorney to help guide you through the process.
Custody / Visitation
Many people going through a divorce or custody case do not understand or are confused by the term “custody.” Custody refers to decision-making, such as where the child will go to school, what doctors the child will see, where the child goes to church, etc. Basically, custody involves the decisions which affect the child’s general health and welfare. Parenting time/visitation is separate from custody. Under Kentucky law, there is a legal presumption that parents should have joint custody, so both parents have equal input on decisions affecting the children, just as it would be if the parents were still married/living together. The law also presumes equal parenting time. The burden of proof is on the parent who opposes joint custody or equal parenting time to demonstrate to the court why it is not in the child’s best interest.
This is one of the most complex areas of the law, so this requires discussion with your attorney to ensure that you are pursuing the best course of action.
Child Support
Child support is based on the gross incomes of both parties. Child support is determined by the Kentucky Child Support Guidelines. We have a computer program which takes all of the factors into account and can give us an approximate child support figure in minutes. When both parties have regular income, the calculation is fairly simple. However, things can get complicated when one party does not have a steady income, or when a party is working at a job for which they are overqualified. Further, if the parties have equal parenting time, or the child spends a significant amount of time with each parent, there may be a deviation from the Guidelines. Other factors to be taken into account include the amount the parties pay for work-related childcare, how much a party pays for the child’s health insurance, and whether a party is paying court-ordered child support on prior-born children.
As you can see, even with the Kentucky Child Support Guidelines, there are many factors which go into the calculation of child support. It’s really not a one-size-fits-all, even though it was designed as such. This is why you need an expert to guide you through the process.
Paternity
Many couples today are not married, but have children together. When you separate, if paternity has not been established, then custody, parenting time, and child support all become issues which may need to be decided by the court. If the parties cannot agree, or if one party contests paternity, then DNA testing may be necessary. Once paternity has been established, both parents are presumed to have joint custody and equal parenting time, and child support becomes a factor. At that point, you have all the same issues as are involved in a custody/visitation case as described on the Custody page.
Kentucky Law
The laws relating to domestic relations, which encompass all of the issues discussed on the “areas of practice” page may be found in the Kentucky Revised Statutes (KRS) Chapter 403. You can even look these up on the internet. Remember, though, that even a highly educated person cannot simply understand all of our laws just by reading them. There are nuances, there is “case law,” and different people (and judges) interpret the laws differently. Even the county in which your case is heard may affect the outcome. As an attorney with over 40 years of experience, I am well-versed in all aspects of family law. Let me guide you and help you through this time. No matter what type of case you have, in family court, you are likely overwhelmed, stressed, and in need of good, solid legal advice and assistance.