Legal Overview

Divorce in Kentucky requires that you have been resident for at least 180 days prior to filing for divorce. Kentucky is a “no-fault” state, so there are no specific grounds to file for a divorce. Read our detailed legal summary of Kentucky including grounds, residency, child custody, child support, alimony, settlement agreements, property, visitation, and legal separation.

Divorce Process

Settlement Agreements

Marital settlement agreements and separation agreements are specifically authorized. The terms of the separation agreement are binding on the court unless it finds  the terms to be unconscionable. All courts encourage the parties in every divorce to try their best to work out all issues between the two spouses. Everything can be concluded in the agreement, from child support and custody, to property division and maintenance.

Legal Separation

Kentucky law specifically provides for a legal separation, often called a “limited divorce” or a “divorce from bed and board”, (separate maintenance i.e. alimony & child support). A legal separation does not end the marriage. The parties remain married with provisions for parenting and support of children and spouse set out in a legal separation document. The only ground for separation is the same as for divorce – irretrievable breakdown of the marriage.

Residency Requirements

If you seek to file a divorce in Kentucky, it is important to be aware of the residency requirements prior to filing for your divorce. In order to file for divorce in Kentucky you must have been a resident of Kentucky for at least 180 days. The petition for dissolution of marriage must also be filed in a county where either of the spouses resides.

Grounds for Divorce

As such, grounds for divorce in Kentucky are no longer applicable since the state legislature has converted Kentucky into a “no-fault” state. The only thing that the parties need to prove is that the marriage is “irretrievably broken”. The court is not allowed to grant a divorce until the parties have been living separate and apart for a 60-day period.

However, living apart is defined to include living together without sexual cohabitation. If the court feels that the marriage still has a chance of survival it has the power to suggest that the parties seek counseling. The court also has the power to order a conciliation conference, where it can make a finding whether the marriage is irretrievably broken.

Division of Property

Kentucky is an “equitable distribution” state, generally meaning that all marital property acquired during the marriage is subject to division on an equitable basis, not an equal basis. Property brought into the marriage or property that a person had before the marriage is not subject to division in a divorce.

To prove that you had property that should be considered non-marital property you need to show that you either owned it before marriage, it was a gift to you from someone besides your spouse and was only meant for you, or that you inherited it. Some examples of non-marital property might include cars, boats, cabins, and farms. The court will determine what is non-marital property before proceeding with the case.

Marital property, on the other hand, will be divided in just proportions, most likely equally. Even if one spouse stayed home and cared for the house and the children, most courts will consider that an equal contribution to the relationship and thus that spouse will be awarded an equal share of the property. It is best for you and your spouse to agree on which spouse takes what piece of property, it simplifies the entire process.

If settlement is unlikely, you will need to determine the value of each and every piece of property that you own. If you do not agree with your spouse on the values a court appointed appraiser will have to value the goods, and it is likely that they will appraise it at an amount lower than you would like. All debts acquired during marriage will be considered marital debts and should be divided likewise.

Spousal Support

Maintenance may be awarded to either spouse for their support and maintenance after the divorce. It is generally based on the financial circumstances of the divorcing spouses. There is no specific formula to calculate maintenance and the determination of maintenance is left to the discretion of the court. The Court may grant maintenance if it finds that the one party lacks sufficient property to provide for their reasonable needs, and is unable to support themselves through appropriate employment.

In order to help the Court determine the amount and duration of maintenance, the court will look at several factors, such as: (a) the financial resources of the party seeking maintenance; (b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) the standard of living established during the marriage; (d) the duration of the marriage; (e) the age, and physical and emotional condition of the spouse seeking maintenance; and (f) the ability of the spouse from whom maintenance is sought to meet their own needs as well as those of the spouse seeking maintenance.

There are a few different forms of maintenance. The first is temporary maintenance, which is paid from one spouse to the other during the trial or proceedings and before the divorce is finalized. Rehabilitative maintenance, is where one spouse (usually from a short marriage) pays for the other to complete an education or a program that will help the other spouse be able to earn their own living. And lastly, permanent maintenance, where the court describes an amount that one spouse should pay to the other for either a specified period of time, or an open-ended period of time. In the determination of maintenance fault may play a role. The court will not consider fault in determining whether a recipient is entitled to maintenance, however, it will consider fault in determining the amount and duration of maintenance.

Child Custody

It is usually in the best interests of the parents and child for the parents to agree about the custody, child support, and visitation issues relating to their children. Joint custody arrangements have become common place and in some states the “norm” in determining the care, custody and support of children. If the parents are unable to ‘work it out’, a judge will ultimately decide these issues for the parents. However, before a judge makes any final decision the parents are usually sent to mandatory mediation to attempt to work out child custody and visitation between the two of them.

If a judge is forced to make custody decisions he or she will base the decision in accordance with the best interest of the child and give equal consideration to each parent. In determining the best interest of the child, the judge shall consider the following factors: (a) the wishes of the child’s parents; (b) the wishes of the child as to his custodian; (c) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest; (d) the child’s adjustment to his home, school, and community; (e) the mental and physical health of all individuals involved; (f) information, records, and evidence of domestic violence.

Child Support

Child support is the amount that the court determines should be paid from the non-custodial parent to the custodial parent to help maintain the children until they reach age 18. Child support determinations can only be altered if there has been a material change in circumstances that is substantial and continuing.
Child support is calculated based on the Kentucky State Guidelines for determining child support, eliminating what might otherwise be the biggest ‘problem area’ between divorcing parents. Unless the parents reach an agreement about the amount of child support to be paid, the State Guidelines are presumed to produce an amount of support that is fair and equitable to the parents and more importantly, in the best interest of the children.

Kentucky, like all other states, has guidelines for determining the amount of child support to be paid. The percentages of gross income are generally presumed to be in the child’s best interest and will give you a “guide” to determining child support. Unless both parents agree to an amount other than that calculated using the guidelines, child support must based on the guidelines.