Kentucky family law encompasses a wide number of issues related to marriage, divorce, children, and more. As you can imagine, these types of cases can have a significant effect on a person’s emotional and financial well-being. Because of this it is necessary to gain a basic understanding of how Kentucky divorce, child custody, child support, and alimony laws work and how it can affect your personal situation. Our primer on Kentucky family law is step one: helping anyone make sense of the confusion that exists because of the overly complex and often changing family law rules and statutes in place today. Step two is figuring out how much additional advice you may need. We can help there as well by connecting you – at no cost – to a local Kentucky family law attorney or professional who can help you further.
Kentucky divorce cases are governed by statute (law), specifically Kentucky Revised Statute 403.140. Kentucky divorces are solely based on no-fault grounds. This means that you and your spouse have irreconcilable differences that have caused an irretrievable breakdown in your marriage and there is no reasonable chance of reconciling, or making up. This is specifically defined in Kentucky Revised Statute 403.170 for additional reference. Though you can no longer claim fault-based grounds (such as adultery, physical abuse, or substance abuse) to obtain a divorce, these issues may be considered in determining equitable division of property and debts, child custody, alimony, child support, and more.
Residency Rules in Kentucky
Kentucky is no different than other states in that you must be a resident of the State of Kentucky to be divorced in Kentucky. Kentucky Revised Statute 403.140(1)(a) states that at least one of the spouses must be a resident of Kentucky for at least the last 180-days prior to filing a Petition for Dissolution of Marriage. States such as Kentucky have this specific rule so that one spouse is not able to move to another state and quickly file divorce in an effort to frustrate the other spouse.
Mandatory Waiting Period
Kentucky requires, under Kentucky Revised Statute 403.170(1), that the parties must be living “separate and apart” for at least 60-days before a divorce judgment (also called a divorce decree or decree of dissolution) can be entered by the judge. This is tricky to understand because it does not mean that the spouses need to move into separate homes. The law specifically states that living separate and apart may indeed mean both parties are still living under the same roof, but they have been doing so “without sexual cohabitation.”
Property Division in Kentucky
There are two-main differences in how states across America divide property: 1. Equitable Division states, and 2. Community Property states. Kentucky is what is known as an equitable division of property state. The division of property during a Kentucky divorce follows Kentucky Revised Statute 403.190. Equitable division of property is not the same as equal division of property. A Kentucky family law judge will decide the percentage of property each party gets based on what he or she believes is fair, not equal. In many cases it may be a 50/50 split of property, but it also may be weighted very differently as well. A judge uses and analyzes various factors, the most common are:
- The contribution of each spouse to the marital property;
- The value of each item of property;
- The length of the marriage;
- The economic circumstances of each spouse; and
- Which spouse will have the children living with them post-divorce.
The same statute, KRS 403.190, also defines what “marital property” is. Kentucky’s definition is similar to other states in that marital property is essentially property that was acquired after the date of marriage and before the date of entry of the divorce judgment. Property can turn in to marital property during the marriage as well, when a spouse makes significant improvements or contributions to the property or by the changing of title, such as putting your spouse’s name on the deed to the pre-marital home.
Alimony – Spousal Maintenance
In the State of Kentucky, alimony is called “spousal maintenance” or just “maintenance.” No matter what it is called, it means the same thing: money that one party must pay to the other party post-divorce (or sometimes while the divorce is on-going) to level the playing field under certain circumstances. Kentucky alimony laws are governed by Kentucky Revised Statute 403.200 or during the divorce proceeding via a temporary maintenance order under Kentucky Revised Statute 403.160.
Maintenance and alimony in Kentucky can be granted to either spouse. The maintenance order is based off the courts review and analysis of several factors, especially:
- Whether one spouse lacks sufficient property to provide for his or her reasonable needs;
- Whether one party is able to support him or herself trough employment; or
- Whether one person cannot support themselves through employment because of a child’s special needs that keeps him or her out of the work force.
The factors that go into these three main scenarios are the length of the marriage, the income each party earns, the educational level of each spouse, whether one spouse is disabled, the total assets of each spouse, the length of the marriage, the earning ability of each spouse, the standard of living during the marriage, the age of each spouse, and many other factors.
Kentucky Child Support
Kentucky child support orders are generally based on a specific formula set out by law that is based on your income, the income of the other parent, the needs of the child, and more. This can be reviewed at Kentucky Revised Statute 403.212. Kentucky specifically states that both parents together must support their children financially. The table found under the statute at 403.212(7) shows the amount of support that should be paid depending on the number of children and the amount of the parents combined gross monthly income. The statute then states, under 403.212(3) that the child support obligation owing from one parent to the other parent is to be determined by dividing the proportion to each parent based off their combined monthly adjusted parental gross income. This is not an easy task, and is one that is well-suited for a Kentucky family law attorney.
This formula may not take into account special circumstances that you have and therefore may result in an unfair determination. Should you already have a child support case with another individual or should one of your children be special needs, the formula allows for judges to alter it based on the needs of the child involved. Keep in mind that if you fall behind on child support payments, you may be facing serious civil and even criminal penalties in Kentucky.
Lastly, child support in Kentucky may also require additional payments from one parent to the other on top of the minimum child support payment, such as payment for a portion of daycare, health insurance, out-of-pocket medical or dental costs, and educational expenses.
Kentucky Child Custody
Kentucky follows what is known as the “best interests of the child” standard when it comes to making child custody decisions. Kentucky allows for two different forms of custody: physical custody and legal custody. Physical custody refers to who the child will live with on a regular basis versus which parent will have parenting time (visitation) on a regular basis with the child. Legal custody determines which parent (or both) shall be primarily responsible for making decisions in the child’s life such as doctors’ appointments, school choice, and extracurricular activities. Kentucky allows for an award of joint custody, which means each party has equal decision making power regardless of who the child lives with for the majority of the time.
Kentucky Revised Statute 403.270 lays out specific elements that courts should use to determine what the best interests of the child are in each specific case. Keep in mind that a judge does not have to agree and accept two agreeable parents’ custody agreement if he or she does not believe it to be in the best interests of the child. The main elements that are considered by Kentucky family law judges when deciding child custody are the following:
- The wishes of the child’s parents;
- The wishes of the child;
- The interaction and relationship between the child and his/her parents, his/her siblings, and any other person that has significant interaction with the child;
- The child’s adjustment to home, school, or the community in which he/she lives;
- The mental and physical health of all individuals (child and parent alike);
- Any evidence of domestic violence by one or both parents; and
- The care and nurturing of each parent for the child.
Kentucky Father’s Rights
Too many fathers believe that they do not have a chance to obtain a positive outcome in a child custody or child support determination because they believe that courts will automatically favor the mother. Kentucky has begun moving away from the premise that a mother is always the best parent for a child. For decades, most states followed what was known as the “tender years doctrine.” This meant that it was virtually impossible to convince a court that a child, especially under the age of 4, should be with the father over the mother. Kentucky follows the belief that fathers have just as much rights to be legal custodians of their children as do mothers. Of course, because of this being a more recent change in gender roles, many judges still favor a mother. Because of this, Kentucky father’s rights lawyers, so called, specialists in advocating for the rights of dad’s have taken off in the hopes of eventually leveling the playing field. Most importantly for dads is to avoid the pitfalls that men find themselves in when starting a father’s rights case!
What is the Next Step?
Our Kentucky family law help guide here is only the beginning of your journey into exploring your rights and responsibilities. Gaining an understanding of the laws and how they will apply to each individual’s particular situation is essential prior to anything else. The next step is to decide if you need additional help. The good news is that we can connect you for free to a local Kentucky family law professional that can help you further.