Kentucky Divorce Law

Divorce and Legal Separation in Kentucky




Divorce and Legal Separation in Kentucky

Kentucky Divorce Basics

Divorce in Kentucky is referred to as Dissolution of Marriage and as Divorce from the Bond of Matrimony.

Residency Requirement:

One of the parties must reside in the state, or if a member of the armed forces, be stationed in the state, and that residence or military presence must have been maintained for 180 days immediately preceding the filing of the Petition.

Filing:

The Petition for Dissolution of Marriage may be filed in circuit court.

In divorce actions where there are minor children of the marriage no testimony, other than on temporary motions, shall be taken or heard before 60 days have passed from the date of service of summons, the appointment of a warning order attorney or the filing of an entry of appearance or a responsive pleading by the Defendant, whichever occurs first.

The Rules of Civil Procedure apply to all divorce proceedings.

Spouse’s Name:

Upon request by a wife whose marriage is dissolved or declared invalid, the court may, and if there are no children of the parties shall, order her maiden name or a former name restored.

Legal Grounds for Divorce

Kentucky is a no-fault state, with only one ground for divorce, irretrievable breakdown of the marriage.

If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or if one of the parties has stated it and the other one has not denied it, the court, after hearing, shall make a finding whether the marriage is irretrievably broken.

If one of the parties denies under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that led to the Petition, and the prospect for reconciliation.

The court will either make a finding that the marriage is irretrievably broken, or continue the matter for further hearing, no less than 30, nor more than 60 days later, or as soon after as possible. The court may suggest to the parties that they seek counseling.

The court, at the request of either party or on its own motion, may order a conciliation conference. At the adjourned hearing the court shall make a finding whether the marriage is irretrievably broken. A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation.

The Circuit Court shall enter a decree of dissolution of marriage if it finds that the marriage is irretrievably broken, and to the extent it has jurisdiction to do so, the court has considered, approved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse, and the disposition of property.

The parties must live apart for at least 60 days before a decree may be entered. Living apart shall include living under the same roof without sexual cohabitation.

Annulment

Void and Prohibited Marriages:
  • Incestuous Marriage: those between persons who are nearer of kin to each other by blood (whole or half) than second cousins;
  • One of the parties has been adjudged mentally disabled by a court of competent jurisdiction;
  • A prior husband or wife is still living, from whom one of the parties marrying has not been divorced;
  • A marriage no solemnized or contracted in the presence of an authorized person or society;
  • Marriage between members of the same sex;
  • Marriage between more than two persons;
  • One party is under sixteen years of age, except in the case of pregnancy, when either the male or female has received permission to marry from a District Judge; and
  • One party is over 16, but under 18 years of age and has not received the consent of a parent, guardian or court as required by law.
A court having general jurisdiction may declare the following marriages void:
  • Any marriage obtained by force or fraud;
  • At the instance of any next friend, any marriage where the person was under 18 but over 16 years of age at the time of the marriage, without consent as legally required and the marriage has not been ratified by cohabitation after that age;
  • At the instance of any next friend, any marriage where the person was under 16 years of age at the time of the marriage, without the judicial consent as legally required, and the marriage has not been ratified by cohabitation after the person reached 18 years of age.
If any resident of Kentucky marries in another state, the marriage shall be valid in Kentucky if valid in the state where solemnized, unless the marriage is against Kentucky public policy. A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky.

Where there is doubt as to the validity of a marriage, either party may petition the Circuit Court to either void or affirm the marriage. However if one party to a marriage was within the age of consent at the time of marriage, he/she may not bring such a proceeding against the underage party.

The Circuit Court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:
  • A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or deformity, or because of the influence of alcohol, drugs, or other incapacitating substances;
  • A party was induced to enter into a marriage by force or duress or by fraud involving the essentials of the marriage;
  • A party lacks the physical capacity to consummate the marriage by sexual intercourse, and the other party did not know of the incapacity at the time the marriage was solemnized; or
  • The marriage is prohibited by law.
A declaration of invalidity for these reasons may be sought by any of the following persons and must be commenced within the times specified:
  • On the grounds that the party lacked capacity to marry, entered into the marriage due to force, duress, or fraud, or impotency, the declaration may be sought by either party or by the legal representative of the party lacking capacity, who was the offended party or did not know of the incapacity, no later than 90 days after the Petitioner obtained knowledge of the condition; and
  • On the grounds that the marriage is prohibited by law, the declaration may be sought by either party no later than one year after the Petitioner obtained knowledge of the condition, but may not be sought after the death of either party to the marriage.

Property Division

In a proceeding for dissolution of marriage or for legal separation, the terms of a separation agreement, regarding division of property, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

If there is no agreement, the court shall determine distribution of property. It shall assign each spouse’s property to him/her. Kentucky is an equitable distribution state, which means the court shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including the following:
  • Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker;
  • Value of the property set apart to each spouse;
  • Length of the marriage; and
  • Economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live there for reasonable periods to the spouse having custody of any children.
Statute defines marital property as all property acquired by either spouse after the marriage and before a decree of legal separation regardless of how title is held, with the following exceptions:
  • Property acquired by gift, bequest, devise, or descent during the marriage and the income derived from that property, unless there are significant activities of either spouse which contributed to the increase in value of that property and the income earned from it;
  • Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
  • Property acquired by a spouse after a decree of legal separation;
  • Property excluded by valid agreement of the parties; and
  • The increase in value of property acquired before the marriage to the extent that the increase did not result from the efforts of the parties during the marriage.
If the retirement benefits of one spouse are excepted from classification as marital property, or not considered as an economic circumstance during the division of marital property, then the retirement benefits of the other spouse shall also be excepted, or not considered, as the case may be.

    Maintenance

    In a proceeding for dissolution of marriage or for legal separation, the terms of a separation agreement, regarding provisions for maintenance of either spouse, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

    If there is no agreement, either party may move for temporary maintenance. The court may grant a maintenance order only if it finds that the spouse seeking maintenance lacks sufficient property to provide for his reasonable needs and is unable to support him/herself 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.

    The court shall consider all relevant factors, including the following, to determine the amount of the maintenance order and for what period of time it shall be awarded:
    • The financial resources of the party seeking maintenance, including marital property apportioned to him/her, and his/her ability to meet his/her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
    • The time necessary to acquire sufficient education or training to enable the requesting party to find appropriate employment;
    • The standard of living established during the marriage;
    • The length of the marriage;
    • The age, and the physical and emotional condition of the spouse seeking maintenance; and
    • The ability of the paying spouse to meet his/her needs while meeting those of the requesting spouse.

    Child Custody and Support

    Custody:

    The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors including the following:
    • The wishes of the child's parent(s), and any de facto custodian, as to his/her custody;
    • The wishes of the child as to his/her custodian;
    • The interaction and interrelationship of the child with his parent(s), his/her siblings, and any other person who may significantly affect the child's best interests;
    • The child's adjustment to his/her home, school, and community;
    • The mental and physical health of all individuals involved;
    • Information, records, and evidence of domestic violence;
    • The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
    • The intent of the parent(s) in placing the child with a de facto custodian; and
    • 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 court shall not consider conduct of a proposed custodian that does not affect his/her relationship to the child. If domestic violence and abuse is alleged, the court shall determine the extent to which the domestic violence and abuse has affected the child and the child’s relationship to both parents.

    The abandonment of the family residence by a custodial party shall not be considered when that party was physically harmed or was seriously threatened with physical harm by his/her spouse, when the harm or threat of harm was causally related to the abandonment.

    The court may grant joint custody to the child’s parents, or to the child’s parents and a de facto custodian, if it is in the best interest of the child.

    A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would seriously endanger the child's physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child.

    If domestic violence and abuse has been alleged, after hearing, the court shall determine the visitation arrangement, if any, which would not endanger the child’s or the custodian parent’s physical, mental, or emotional health.

    If a parent of a child is convicted of murder or manslaughter in the first degree of the other parent, a court shall not grant the convicted parent visitation rights with respect to that child unless the
    court, through a hearing, determines that visitation is in the child's best interest

    Support:

    In a proceeding for dissolution of marriage or legal separation either party, with notice to the opposing party, may move for temporary child support.

    Kentucky uses the Income Shares Model to calculate child support obligations. The state’s child support guidelines and table are provided in the revised statutes.

    The child support obligation set forth in the child support guidelines table shall be divided between the parents in proportion to their combined monthly adjusted parental gross income. The child support obligation shall be the appropriate amount for the number of children in the table for whom the parents share a joint legal responsibility. The minimum amount of child support shall be $60 per month.

    The court may use its judicial discretion in determining child support in circumstances where combined adjusted parental gross income exceeds the uppermost levels of the guidelines table.

    In a split custody arrangement, each parent is the residential custodian for one or more children for whom the parents share a joint legal responsibility. The child support obligation in this arrangement shall be calculated in the following manner:
    • Two separate child support obligation worksheets shall be prepared, one for each household, using the number of children born of the relationship in each separate household, rather than the total number of children born of the relationship;
    • The nonresidential custodian with the greater monthly obligation amount shall pay the difference between the obligation amounts, as determined by the worksheets, to the other parent.
    Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall terminate by emancipation of the child, unless he/she is a high student, when he/she reached the age of 18 years.

    In cases where the child becomes emancipated because of age, but not due to marriage, while still a high school student, the court-ordered support shall continue while the child is a high school student, but not beyond completion of the school year during which the child reaches the age of 19 years.

    Legal Separation and Divorce from Bed and Board

    Legal Separation, also referred to as divorce from bed and board may be granted for the same grounds as divorce from the bond of matrimony, or for any other cause that the court considers sufficient.

    A divorce from bed and board treats property acquired afterward and the personal rights and legal capacities of the parties similar to a divorce from the bond of matrimony, except that neither party may remarry someone else during the life of the other, and except that it shall not bar curtesy, dower or distributive right. The judgment may be revised or set aside at any time by the court rendering it.

    If a party requests a decree of legal separation, the court shall grant the decree in that form unless the other party objects. If the other party objects, the court will proceed in the same manner as when a dissolution of marriage is sought.

    A couple may enter into a written separation agreement containing provisions for maintenance of either spouse, disposition of any property owned by either of them, and when applicable, custody, support and visitation of their children.

    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 a decree of dissolution of marriage.

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