Overview of Divorce Laws in Kentucky
Look, I won’t sugarcoat it – divorce is complicated.
This guide covers the important divorce laws in Kentucky so that you can equip yourself with the information you need.
Let’s jump in:
- Equitable Distribution and Asset Division
- Alimony and Child Support
- Child Custody and Visitation
- Divorce Process
- Other Divorce Issues
Equitable Distribution and Property Division
Marital Property and Division of Assets
Kentucky is an equitable distribution state. In a divorce, courts will divide marital property fairly and equitably. But this does not mean that the assets will be divided exactly in half.
Courts will look at a number of factors to determine what is fair and equitable. This can include the length of the marriage, the contributions of each spouse to the marriage, prospects for future earnings and employment, tax consequences, sources of retirement income, child care, custody and alimony issues and other related issues.
Both spouses are required to disclose all assets as part of the process so that an accurate picture can emerge and give the court the information it needs to decide the matter in a fair way.
Marital debts in Kentucky are treated just like assets in a divorce. This means that they will be divided fairly and equitably, although not necessarily on a 50/50 basis.
If the debt is in both of your names, it belongs to both of you. If a debt is only in one of your names, it is still a marital debt that both of you are responsible for if the debt started during the marriage and it was used for a marital purpose (i.e. mortgage, home improvement loan, etc.)
Debts in one spouse’s name alone that were taken on before the marriage belong only to the debt holder. The same holds true for any debts established after the date of separation.
The exception is that if the debts are for necessary expenses, such as health care or food for the children, and the spouse who took on the debt cannot pay it, the other spouse might be responsible, if he or she can pay.
Also, even if one spouse racked up the debt, if both spouses are on the agreement with the creditor, then contract law takes precedence state law, and both spouses will be responsible for the debt.
Gifts and Inheritances
Gifts or inheritances are considered separate property in Kentucky and not subject to equitable distribution.
A spouse should be prepared to prove that the asset in question is separate property and has not been commingled with marital assets. This can be done by keeping accurate records or by having a spouse sign a pre- or post-nuptial agreement stating that the assets is to remains separate under all conditions, no matter how it is used in the marriage.
Pensions, IRAs, 401Ks and Retirement Plans
Pensions and retirement accounts are considered marital property and subject to equitable distribution laws. But this applies only to funds accumulated during marriage. Any funds accumulated before a marriage or after separation are considered separate property.
To split these types of accounts without adverse tax consequences requires the execution of a qualified domestic relations order, more commonly referred to as a QDRO.
The QDRO is prepared by an attorney or a private firm and must be approved by the courts before it is submitted to the plan administrator who must also approve it. A QDRO establishes that a spouse can be considered an alternate payee, and the account is divided according to the specifics of the QDRO, which may or may not be a 50/50 split.
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Determining the exact value of pensions and retirement accounts can be complicated. It is not uncommon to retain a financial expert such as an actuary, Certified Divorce Financial Analyst, or forensic accountant to make an accurate assessment.
Property accumulated during a marriage in Kentucky belongs to both spouses and is considered marital property. It is subject to fair and equitable distribution,
There are exceptions when it comes to gifts or inheritance to one spouse—in these cases it can be considered separate property. But that may be invalidated if the property is commingled with marital property during a marriage.
There are exceptions and determining what is separate property can become a complex situation at times, so it is best to consult an attorney if you are not sure of the asset’s status.
Alimony and Child Support
Alimony in Kentucky
Alimony can be granted on a temporary basis during a divorce transition, or after a divorce is final to help one spouse move forward with their lives.
Requests are closely scrutinized and the court must not grant alimony unless two things are proven as true.
- the spouse seeking maintenance doesn’t have sufficient resources to be self-supporting, even after the property division that is part of the divorce, and
- the spouse seeking maintenance is unable to be self-supporting or is responsible for caring for a child whose needs make it inappropriate for the parent to be employed outside the home.
Before granting alimony, the court will look at the financial resources of each spouse, their age, physical condition, ability to earn a living, the standard of living during the marriage, child custody arrangements, tax consequences and other related factors.
The length of time that alimony can be granted is flexible and will depend on the specific circumstances of the marriage. Generally, it is not supposed to last an indefinite amount of time, allowing only until the spouse can become self-supporting as soon as possible.
Read: Everything You Need to Know About Alimony
Child Support in Kentucky
Both parents have a legal responsibility to provide care and pay for costs of raising a child in Kentucky. The state recognizes that both parents must provide for the well-being of any children, whether they are married or not.
The amount of child support depends on the income of both parents and how many other children may also require child support as well.
The Cabinet for Health and Family Services has the discretion to revise the amount of child support payments and deviate from accepted child support guidelines if it is determined that the amount places an undue burden on one parent. The amount due can be revised if either parent has experienced a material change in circumstances that results in a 15% increase or decrease in the amount of support due per month, such as with a job loss or health issue.
The state provides worksheets and an online child support estimator to use as a starting point for figuring out how much payments will be.
Child Custody and Visitation
Child Custody in Kentucky
In 2018, the Governor of Kentucky signed a bill into law that declared separating parents will get joint custody of their children as a default. Kentucky is the first state in the country to create a “legal presumption” for joint custody in divorce proceedings.
Judges use joint custody as a legal starting point, but it the amount of time can be adjusted based on other factors such as the emotional, social, moral, material, and educational needs of the child. They must also consider what the current home living situation is and the likelihood a parent will allow a child to have “frequent, meaningful, and continuing contact” with the other parent.
Parents or the court must still decide who has physical custody which refers to the parent who has physical care and control of the child on a day-to-day basis. Legal custody must also be decided, which is the right to make important decisions on behalf of a child regarding matters like education, culture, religion and health. In many cases, this is a shared responsibility.
To take some of the pressure off when formulating a co-parenting plan, try using Our Family Wizard! Our Family Wizard is a multi-functional app that is specifically designed to assist parents looking to co-raise their child(ren).
Substance abuse impacts a divorce because it can have an impact on child custody and visitation issues. If drug or alcohol use is present, visitation or custody may be severely restricted or even denied because it might put a child’s life in danger.
Substance abuse can also have an impact on a division of assets in Kentucky as well. If the courts find that the abuse has had a material impact on the finances of the marriage because a spouse spent a lot of money on drugs and alcohol, they will likely award a larger portion of the assets to the other spouse as compensation.
Bifurcation of marital status
Bifurcation of marital status essentially means dividing a divorce into two parts and is allowed in Kentucky.
The first part satisfies the grounds for the divorce and allows the couple to legally get divorced. In Kentucky, all that needs to be cited are irreconcilable differences.
The second part is addressed at a later date and works out the financial aspects of the divorce that may have become stumbling blocks or barriers to a divorce otherwise moving forward. This can include issues such as child custody, visitation, child support, alimony or other contentious issues.
As part of a divorce in Kentucky, each spouse is required to completely disclose their assets, debts, income, and expenses as part of the process.
This is so the courts can have a full understanding of the financial health of each spouse to determine if spousal maintenance is justified and to make sure that the division of assets is fair and equitable.
Spouses who are reluctant to reveal assets or actively try to hide assets can be legally compelled to do so. In some cases, they may also be held liable for civil and criminal penalties.
After a petitioner files for divorce in Kentucky, a spouse has 20 days to file a response to the complaint.
If they fail to do so, the petitioner can file a motion for a default judgment which will be notarized before being submitted to the clerk of the court. A hearing will be set with a judge and a copy of the notice will be sent to the spouse’s last known address. You need to attend the hearing at which time the judge will consider the request.
In some cases, it may be possible to seek an extension, such as if there is a health or family emergency, or if a respondent was on active military duty.
Other Divorce Issues
Aside from the implications domestic violence may play in a divorce, the more important and immediate issue is making sure you and your children are safe when domestic violence is present.
If you or family members are victims, you must get out of the house as soon as possible and seek shelter somewhere else. If the threat is imminent, call the police for assistance.
When you are out of the house, seek a temporary restraining order to keep the abuse away from you. This will buy you enough time to start an expedited divorce action.
Although it cannot be cited as a ground for divorce, domestic violence definitely plays a part in child custody issues in Kentucky. If documented, then the abuser may not be allowed any custody privileges or limited and supervised visitations only, because courts always put the best interests of children first when it comes to all issues in a divorce.
Health Insurance Coverage
Health insurance is a key point of contention in many Kentucky divorces. It is critical, especially when children are involved, to continue with coverage.
Virtually all employers dictate that an ex-spouse may no longer remain on the other’s health insurance plan and they must seek out their own healthcare coverage if not covered in a settlement agreement.
In some cases, the court may order that one spouse continue providing coverage as part of the settlement process. This may be especially true when one spouse has been a homemaker during the marriage.
Courts want to make sure children are covered by health insurance at all times as well. Parents may also be asked to split the costs of coverage for their children.
An ex-spouse can apply for COBRA (Consolidated Omnibus Budget Reconciliation Act) benefits. This is a law that protects people from losing health coverage during major life transitions. COBRA lets you continue with your spouse’s current coverage for up to 36 months as long as you pay the premiums. The major drawback is that this can be very expensive because an employer will no longer cover any portion of the premium.
Infidelity and Adultery
Infidelity cannot be cited as a reason for getting a divorce in Kentucky.
But it may be an issue when determining child custody or in a division of assets. Kentucky courts focus on the well-being of children in a marriage and if it can be shown that infidelity or adultery have created a negative environment, then custody may be affected to some degree.
Also, if it can be shown that an adulterous spouse spent a lot of marital assets on a lover, the courts may give the other spouse a larger share of the remaining marital assets as a form of compensation.
Military Divorces in Kentucky
Under military law that applies in Kentucky and in all states, service members and their spouses have the option to file for divorce in the state where the spouse that filed resides, in the state where the service member is stationed or in the state where the service member is a legal resident.
The grounds for military divorce are the same as they are for a civilian divorce in Kentucky. As a no-fault state, you only need to cite irreconcilable differences.
Military service members have certain protections afforded to them by the Servicemembers Civil Relief Act. They can postpone a divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments. However, a service member can waive delaying the divorce by signing paperwork that will allow the divorce to proceed uncontested.
Child support and spousal support are determined by Kentucky state guidelines, but these awards may not exceed 60% of a servicemember’s pay and allowances. Standard Kentucky child support guidelines and schedules are used to determine the proper amount of child support to be paid.
Retirement benefits and how they are divided are governed by the Uniformed Services Former Spouses’ Protection Act. A key element of the Act is that the former spouse must have been married to the servicemember for a minimum of 10 years while the military member has served on active duty to be able to share in any retirement benefits.
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