Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in Kentucky have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
RESIDENCY REQUIREMENTS
The Court shall enter a decree of dissolution of marriage if the Court finds that one (1) of the parties, at the time the action was commenced, resided in this state, or was stationed in this state while a member of the armed services and that the residence or military presence has been maintained for 180 days next preceding the filing of the petition.
LEGAL GROUNDS FOR DIVORCE
If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated, and the other has not denied it, the Court, after hearing, shall make a finding whether the marriage is irretrievably broken. No decree shall be entered until the parties have lived apart for 60 days. Living apart shall include living under the same roof without sexual cohabitation. The Court may order a conciliation conference as a part of the hearing.
LEGAL SEPARATION
Suppose a party requests a decree of legal separation rather than a decree of dissolution of marriage. In that case, the Court shall grant the decree in that form unless the other party objects, in which latter event the other provisions of this chapter shall apply. No earlier than one year after entry of a decree of legal separation, the Court on motion of either party shall convert the decree to an order of dissolution of marriage.
MEDIATION-COUNSELING
The Court may order a conciliation conference as a part of the hearing to determine if the marriage is irretrievably broken. Suppose there is a finding of domestic violence. In that case, the Court shall not order mediation unless requested by the victim of the alleged domestic violence and abuse, and the Court finds that:
(1) The victim’s request is voluntary and not the result of coercion; and (2) Mediation is a realistic and viable alternative to or adjunct to the issuance of an order sought by the victim of the alleged domestic violence and abuse.
PROPERTY DISTRIBUTION
Kentucky is an equitable distribution state. The Court shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(a) Contribution of each spouse to the acquisition of the marital property, including a contribution of a spouse as homemaker;
(b) Value of the property set apart to each spouse;
(c) Duration of the marriage; and
(d) Economic circumstances of each spouse when the division of property becomes effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children.
MEANING OF MARITAL PROPERTY
All property acquired by either spouse after the marriage and before a decree of legal separation is presumed to be marital property, regardless of whether the title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. A showing overcomes the presumption of marital property that the property was acquired by a method listed below.
“Marital property” means all property acquired by either spouse after the marriage except:
(a) Property acquired by gift, bequest, devise, or descent during the marriage and the income derived from it unless there are significant activities of either spouse which contributed to the increase in value of said property and the income earned from it;
(b) Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(c) Property acquired by a spouse after a decree of legal separation;
(d) Property excluded by valid agreement of the parties; and
(e) The increase in value of property acquired before the marriage to the extent that such increase did not result from the parties’ efforts during the marriage.
MAINTENANCE-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.
MAINTENANCE ORDER
The maintenance order shall be in such amounts and for such periods as the Court deems just 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 the 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 spouse’s ability from whom maintenance is sought to meet his needs while meeting those seeking care.
SPOUSE’S LEGAL NAME
Upon request by a wife whose marriage is dissolved or declared invalid, the Court may order her maiden name or a former name restored if there are no children of the parties. [ Kentucky Statutes – Title 35 – Chapter: 403.230]
CHILD CUSTODY
The Court may grant joint custody to the child’s parents or the child’s parents and a de facto custodian if it is in the child’s best interest. “De facto custodian” means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for six (6) months or more if the child is under three (3) years of age and for one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services.
FACTORS CONSIDERED
The Court shall determine custody in the child’s best interests and equal consideration shall be given to each parent and any de facto custodian.
The Court shall consider all relevant factors, including:
(a) The wishes of the child’s parent or parents, and any de facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;
(d) The child’s adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence
(g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
(h) The intent of the parent or parents in placing the child with a de facto custodian; and (i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.
The abandonment of the family residence by a custodial party shall not be considered where said the party was physically harmed or was seriously threatened with physical harm by their spouse when such damage or threat of harm was causally related to the abandonment.
CHILD SUPPORT
Kentucky uses the Incomes Shares Model to determine child support. The child support obligation outlined in the child support guidelines table shall be divided between the parents in proportion to their combined monthly adjusted parental gross income. Any new or modified order or decree which contains provisions for the support of a minor child or minor children shall provide for a wage assignment that shall begin immediately except for a good cause shown
SAME-SEX DIVORCE
On June 26, 2015, the U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: U.S. Supreme Court Opinion: Obergefell v. Hodges. (For more information, visit ProCon.org).
