When it comes to alimony (also called spousal maintenance in Kentucky), you’re probably looking for answers to two key questions: How much? And for how long?
Sounds simple, right? Not so fast… The reality is that’s just the tip of the iceberg.
In this guide, we’ll break down exactly what you need to know about alimony in Kentucky. Let’s dive in.
Who is Entitled to Maintenance in Kentucky?
Maintenance is a spouse’s court-ordered provision for an ex-spouse after a divorce or separation. It may be awarded depending on the financial circumstances of each spouse after assets have been divided and are based on whether a spouse can be self-supporting or not.
A spouse can file for maintenance during or after the divorce proceedings in Kentucky. The court may even grant it if the spouse is absent during the proceedings. Several factors come into play, but the court’s main consideration is whether both spouses can maintain the standard of living established during the marriage after they are apart.
It is possible to receive maintenance from an ex-spouse who is not a Kentucky resident if the parties were Kentucky residents during the marriage and the action is filed within one year of the paying spouse’s change of residence from Kentucky.
Types of Maintenance in Kentucky
Judges in Kentucky can award three types of maintenance.
Temporary maintenance, also known as pendente lite alimony, can be awarded while a divorce is pending. It assists a spouse with living expenses and is sometimes granted when a spouse has home-making responsibilities or other factors that limited their ability to earn a living during the marriage. Temporary support orders are only valid during the divorce process and end when the judge finalizes the divorce or creates a new support order.
Short-term support is the most common type of alimony in Kentucky. The courts sometimes refer to short-term maintenance as rehabilitative maintenance because the purpose is for the supported spouse to go back to school to earn a degree or get specialized job training necessary to find employment.
Rehabilitative alimony is only available for the period that it takes the supported spouse to find proper employment. It is usually limited to five years, although some courts follow the rule that the duration of the alimony is half the length of the marriage. A judge will usually require the receiving spouse to create a plan that explains how long it will take to become financially independent.
Permanent maintenance is less common and usually only available to spouses ending a long-term marriage. It is awarded only if the spouses were married for at least ten years. Although judges expect both spouses to work after a divorce and become self-supporting, some exceptions exist for spouses who can’t work due to advanced age or disability and need ongoing financial support.
Permanent alimony doesn’t necessarily last forever, and the court usually reserves the right to modify or terminate it later.
Courts usually decide maintenance issues when a party files a motion, but spouses can negotiate the terms of any alimony award, including the type, amount, and duration. A judge will still need to review and approve the agreement if the award is fair to both spouses.
Read More: How to File for Divorce in Kentucky
What Factors Are Used to Determine Alimony?
In a divorce, property division must occur before maintenance is considered because the amount and type of assets are one of the factors courts must consider when determining maintenance. Property division may affect the amount and duration of a maintenance award, but a maintenance award will not affect property division.
Maintenance aims to ensure that each spouse does not have post-marital financial circumstances radically different from that of their former spouse. Often, this involves maintaining the standard of living established during the marriage.
Courts may award alimony only if the party requesting it:
- Lacks sufficient property, including marital property apportioned to them, to provide for their reasonable needs; and
- Is unable to support themselves through appropriate employment or is the custodial parent of a child whose conditions or circumstances require extra care. It is appropriate for that spouse not to seek employment outside the home.
Both of these conditions must apply for maintenance to be appropriate. Also, the party seeking maintenance has the burden of proof to establish they are entitled to it.
When these factors apply, judges must determine the type, amount, and duration of maintenance to award.
To do this, judges consider several factors outlined in the Kentucky divorce laws. Those factors include:
- The length of the marriage and if the requesting spouse has fewer economic prospects due to age, work experience, health condition
- If the parties enjoyed a high standard of living during the marriage and the paying spouse is financially capable of continuing this for the requesting spouse after the marriage ends
- Does the requesting spouse have a low education level or little work experience?
- Has the requesting spouse sought positions in line with their education or training, but none are available or do not provide a sufficient salary
- Has the requesting spouse taken care of a child or children, especially those with medical problems or developmental issues, making it difficult also to hold a job
- Is the requesting spouse seriously ill or at least presently injured
- Did the requesting spouse contribute to the paying spouse’s high earning capacity, such as by supporting a spouse who obtained a professional degree or license
- When the paying spouse has a lot of marital and non-marital property owned individually before the marriage (i.e., inherited property, etc.) and assets to provide for their own needs
- Is the paying spouse voluntarily underemployed
- Has the paying spouse intentionally reduced their income, such as through an unreasonable early retirement
Kentucky does not have firm and fast rules about how much support a judge awards or how long the support will last. Judges have a relatively large amount of discretion in determining spousal support in Kentucky.
Read More: How to Find Hidden Assets in a Divorce
Modifying or Terminating Maintenance in Kentucky
Maintenance in Kentucky can be changed if evidence shows substantial and continuous changes in circumstances that have made the ongoing order no longer reasonable.
Modifications can occur if there is a significant change in income, a spouse remarries or cohabits with another person, the health of either party changes, or other impactful life events.
Either party can request a modification. The person requesting the change must create a Motion to Modify Maintenance. This motion cites the change in circumstances that makes the previous order unreasonable and must include substantiating documentation, such as pay stubs, tax documents, and so forth, to support the request.
The court will only review a support award if the requesting spouse can demonstrate that there’s been a material change in circumstances since the original order.
If you can’t meet your support responsibilities, you must file a motion to modify before you stop paying. Failure to pay support may result in the court charging you with contempt, which carries several possible penalties.
As a default rule, the obligation to pay future maintenance is terminated when either spouse dies or upon the remarriage of the party receiving maintenance. The parties can overcome this default rule by submitting a written agreement or creating an express provision in the divorce decree.
The maintenance award does not terminate when a recipient enters into a significant unmarried cohabitation relationship with another person or for any other reason unless agreed to by the parties.
Enforcing Kentucky Maintenance Awards
If you do not pay alimony, the outstanding debt is referred to as alimony arrears. These arrears can be collected through mediation, wage garnishment, or small claims court. You may receive a contempt-of-court charge if you don’t comply with a court-issued spousal maintenance order, you may receive a contempt-of-court charge.
Unless the spouses agree, a Kentucky family court judge will include an income withholding order with the support order. This instructs the paying spouse’s employer to withhold required amounts from paychecks automatically. The alimony payment will go directly to the State Disbursement Unit, which will forward the money to the recipient.
If a paying spouse doesn’t receive a regular paycheck or is unemployed, the court may require a lump-sum payment of support from that spouse’s assets.
Maintenance and Taxes
Due to recent changes in Federal laws, the payer cannot deduct alimony or separate maintenance payments under divorce proceedings or separation instrument executed after 2018. These support payments are also not included as taxable income for recipients.
The same is true of alimony paid under a divorce or separation instrument executed before 2019 and modified after 2018 if the modification expressly states that the maintenance isn’t deductible to the payor spouse or included in the recipient spouse’s income.
Taxpayers paying alimony under a divorce agreement executed before 2019 can deduct those payments from taxes when the following criteria are met:
- The recipient must be a spouse or former spouse
- There must be a written divorce or separation instrument
- Alimony must be made with cash payments (such as checks and money orders)
- Maintenance does not continue after the recipient dies
- The parties must live apart, residing in different households
- The parties must file separate tax returns (they cannot file a joint return and claim the alimony deduction)
- The court-ordered payment of alimony cannot state that payments are not deductible
Kentucky Maintenance FAQs
Can an ex-husband receive maintenance?
Yes. Kentucky law allows former husbands and former wives to receive maintenance if they meet the legal criteria. Gender plays no role in the court’s decisions regarding maintenance.
Is there a formula for maintenance in Kentucky?
No. Although some states use a formula, Kentucky decides on maintenance on a case-by-case basis.
Does Kentucky consider cheating and adultery when deciding maintenance awards?
No, Kentucky does not consider marital fault when they are determining maintenance payments. Divorces considered at fault due to cheating, abuse, or other forms of marital misconduct do not affect the calculation of alimony payments.
In Kentucky courts, the only effect of fault is on the amount granted. The judge can only consider adultery when deciding how much money to award. However, they cannot prevent a guilty spouse from receiving alimony simply because that spouse was adulterous.
Does the court consider child custody when determining maintenance?
Yes. Alimony calculations are affected by whether the recipient spouse has custody of the children. In those instances, custodial spouses may receive higher amounts of alimony.
Can I get maintenance if the divorce decree was already entered?
Generally speaking, the answer is no. If maintenance is not requested and secured in the original divorce action, it cannot be obtained later. Some exceptions exist, such as if the other party was not truthful about their finances because of fraud, mistake, etc.
For this reason, it is essential to have an experienced attorney review the terms of a pending divorce and especially the related financial concerns. This will help a person obtain financial stability post-divorce.