Kentucky Divorce Law

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The Rules

The court rules that apply to divorce actions are known as the Kentucky Family Court Rules of Procedure and Practice. These rules set forth what is required for the court to grant a divorce. A copy of the rules can be found here, starting on page seventeen (17).

Divorce Documents Required By The Court

In order for the court to grant a divorce, the following are examples of some documents or pleadings that may need to be filed:

1. Petition for Dissolution of Marriage
2. Proof of Service
3. Entry of Appearance
4. Marital Settlement Agreement
5. Mandatory Case Disclosure
6. Waiver of Final Hearing and Further Proceedings (Usually included in Settlement Agreement)
7. Deposition or Interrogatories
8. Divorce Education Certificate
9. Child Support Worksheet
10. Findings of Fact and Conclusions of Law and Decree of Dissolution of Marriage

Jurisdictional Requirements

A court must have jurisdiction to dissolve your marriage, divide your property, and resolve custody and child support issues. In Kentucky, for a court to have jurisdiction to grant your divorce, you must have resided in Kentucky for 180 days at the time the divorce petition is filed. However, even if a court has jurisdiction to grant your divorce, it may not have jurisdiction over your spouse personally.

Jurisdictional issues can be quite confusing. For example, there are unique circumstances under which a court could have jurisdiction to make a custody determination while lacking jurisdiction to grant your divorce. There are also circumstances in which a court could grant your divorce but lack jurisdiction to make determinations regarding your property and your children. Such circumstances can arise when you haven’t lived in Kentucky very long or your spouse has never been to Kentucky. Generally, if you and your spouse have both lived in Kentucky for longer than 180 days, you will not face any unique jurisdictional issues.

Jurisdictional requirements are important for your attorney to understand and explain to you. When you and your spouse have lived in multiple states, it is especially important to understand jurisdictional requirements.

Child Custody

Child custody issues are often the most difficult and important issues in a divorce. Contested custody cases are given statutory priority, and your attorney should give the issue appropriate attention.

Custody issues are usually not contested, and litigation on this issue is best avoided. When parties to a divorce get along, the court may award joint custody. Typically, child custody arrangements are set out in your marital settlement agreement. The agreement usually details holiday schedules, special arrangements, and visitation schedules.

Courtroom custody fights are disfavored. Depending on his or her age, the child may be called upon to testify in court, and they may be asked to state their preference as to placement. The court makes its custody decision based on the best interests of the child. Many factors are considered. If you think you will be facing a custody battle, your attorney should help you explore and understand Kentucky’s child custody laws as they apply to you.

Visitation

Child visitation is separate from child custody. Even a parent that is not granted custody of their child has a right to visitation. The custodial parent does not have discretion as to when or if the non-custodial parent may see the child. However, visitation rights are subject to reasonable regulation to protect the health, safety, education, and welfare of the minor child.

Where the parties in a divorce get along, it is customary not to establish specific times for visitation, but to grant the non-custodial parent visitation at reasonable times. To establish specific periods of visitation, the parties can do so their marital settlement agreement, or the court can establish the visitation schedule after a hearing.

Visitation rights are enforceable by the court through contempt proceedings. The non-custodial parent may not suspend child support payments when the custodial parent does not comply with visitation arrangement. Likewise, visitation rights of the non-custodial parent cannot be denied when child support payments are not made.

Maintenance

Maintenance or alimony is money paid by one spouse to the other for their financial support. Either spouse may seek maintenance, and it is based upon need.

Under Kentucky law, the court may grant maintenance if it finds that the spouse seeking maintenance 1) lacks sufficient property to provide for his or her needs and 2) is unable to support him or herself through appropriate employment or is the custodian of a child whose condition makes it appropriate that the spouse not be required to find appropriate work.

Property division bears upon whether maintenance should be awarded. The spouse paying the maintenance may choose to give the spouse seeking maintenance more of the couple’s property making the award of maintenance inappropriate. Maintenance is usually not permanent. The spouse receiving maintenance is expected to provide for themselves in time.

It is also important to note that while child support payments are not deductible from income taxes, maintenance payments are deductible from the income taxes of the paying spouse. Maintenance payments are taxable income of the spouse receiving them. Speak with your attorney to better understand the amount, enforcement, and termination of maintenance.

Child Support

It is a parent’s legal duty to support, educate, and maintain one’s child. This duty arises at the birth of the child, and in divorce, the extent of the obligation is merely established.

In Kentucky, the child support obligation continues until the child reaches 18 years of age, unless the child is a high school student and unmarried. In that case, the obligation continues until the child completes the school year during which the child reaches 19 years. Child support will also continue if the child is wholly dependent because of a physical or mental disability.

The amount of a child support obligation is determined by using statutory guidelines. Here is a helpful table that can be used to determine a child support obligation based on Kentucky’s guidelines. This method creates a rebuttable presumption for setting the amount.

Any deviation from the guidelines, either in excess or below, requires findings of fact on record by the court. Even when the parents combined income exceeds the highest level set out in the guidelines, child support should be set to the realistic needs of the children.

An action for child support can be brought as part of a divorce or on its own. A temporary child support order can be obtained so that children do not have to wait until the end of the court proceedings to receive support.

There are many ways to enforce a child support order, including: contempt, judgment for arrearage, wage assignment, criminal prosecution, and more. It is critical to speak with your attorney about child support to understand your rights and obligations.

Property Division

The division of property in divorce is an extremely important issue because it bears upon child support, maintenance, and attorney’s fees if those issues are present. Property division, maintenance, and child support must be determined separately, but property division is still relevant to maintenance and child support.

Kentucky recognizes two types of property: marital and non-marital. There are statutory factors that the court follows in characterizing property, and the court must divide property in the following order: 1) characterize property as marital or non-marital, 2) assign each party their non-marital property, and 3) divide marital property.

The court must divide property before determining maintenance because the separate estate of the party claiming maintenance is relevant to the entitlement. It is also a factor bearing upon child support. Because property division has such far reaching implications, it is usually a starting point for the court.

Many issues arise at the property division stage of a divorce including debt, gifts, pensions, injury awards, and more. These issues and the other implications of property division make it critical for your attorney to fully understand your property interests so that your rights and interests are fully protected.

Child or Spousal Abuse

Kentucky law has always protected spouses and children from domestic abuse through criminal charges of assault, wanton endangerment, or terroristic threatening, but such charges carried the threat of incarceration which made many battered spouses slow to report abuse. Currently, a battered spouse can seek a protective order in family court restraining abuse, awarding temporary custody of children, and granting appropriate child support.

Don’t delay in informing the proper authorities and your attorney about spouse or child abuse. Kentucky law requires any person who knows of or has reasonable cause to believe that a child is dependant, neglected, or abused to inform authorities. Abuse should not be tolerated, and ignoring the problem could substantially harm your rights.

Contested Divorce Procedures

The following is a general timeline in a contested divorce:

1. Initial client conference
2. Prepare pleadings
3. Meet to review and sign pleadings
4. File pleadings
5. Serve respondent
6. Discovery (gather evidence)
7. Pre-trial conference
8. Prepare for trial
9. Trial (before judge not jury)
10. Review ruling
11. Make appropriate motions to amend ruling
12. Appeal if appropriate

This list is meant to be an overview of the process. There may be other steps along the way as circumstances may require.

Settlement offers may be made or received by either party at any point in the process. Also, pendente lite or temporary orders may be sought early in the process to grant temporary custody, start child support, and more.

You should expect your attorney to keep you abreast of the developments in your case, and help you understand what comes next.

Uncontested Divorce Procedures

The following is a general timeline in an uncontested divorce:

1. Initial client conference
2. Prepare pleadings
3. Meet to review and sign pleadings
4. File pleadings
5. If the respondent has not appeared, have him or her served
6. If respondent hires counsel and files an answer, proceed as a contested divorce
7. If an agreement has been reached, prepare the settlement agreement
8. Both parties execute the agreement
9. Offer proof to the court by appropriate means (Deposition of Interrogatories)
10. Divorce decree entered

Just as in the case of a contested divorce, more steps may be included where circumstances require. It is also important to note that at any point along the way, an uncontested divorce can turn into a contested divorce. It is important to recognize when this has happened and seek the help of an attorney if you are not already represented.

Be confident that your rights and interests are protected. Don’t acquiesce to outside pressure and make agreements that you are not happy with. It is much easier to change an agreement before it is fully executed than afterwards.

Other Considerations

Getting a divorce is emotional, complicated, and can be very expensive. There are many important decisions to be made from the beginning to the end. The outcome can almost never be characterized as a win, and sometimes the process seems like it will never end.

It is very important to understand your rights and identify where you would like to stand when you reach the other end of the process. Many people give up too much in their divorce, and others refuse to compromise about anything. Neither stance is advisable.

The ultimate goal of any divorce is to untangle the lives of the husband and wife in a just manner while ensuring children are protected, and to ensure that no party is treated unfairly. It is critical to bear in mind that the divorce process should not be used to punish or seek revenge.

To avoid a multi-year disaster divorce that some people experience, it is best to set differences aside as much as possible to finish the divorce and move on with life positively. The divorce process is not meant to be used to get revenge, and it will almost never leave the party seeking revenge or punishment satisfied. It’s better to handle those emotions by speaking with family, friends, and a counselor.

When considering divorce make your decisions carefully and seek help often. Take care of yourself, and welcome the support of your friends and family. Don’t sell yourself short, don’t be bullied, and expect diligence and responsiveness from everyone that helps you with your divorce, especially your attorney.