|Volunteer Lawyers for Appalachian Kentucky (V.L.A.K.)|
Frequently Asked Questions:
Not really. Kentucky is a no-fault divorce state. A court needs only to find that a marriage is "irretrievably broken" --- that is, there is no chance that the parties will get back together. A judge may order the couple to have a counseling session if there is evidence that the marriage can be saved. But as a practical matter, judges will not force a couple to stay together if one spouse testifies that he or she believes the partnership is over.
The reasoning behind no-fault divorce is that the breaking up has already happened by the time people are in court. A relationship between adults that requires the kind of commitment that marriage requires is over if one spouse no longer consents, no matter what their reason.
Legal separation, or "divorce from bed and board," has exactly the same effect as a dissolution of marriage except for two things: 1) Neither party may remarry during their lifetime; and 2) Inheritance rights remain the same as if the parties had stayed married. The legal procedure for getting a separation is the same as for getting a divorce
If a court finds that a marriage was never valid from the beginning, it will grant an annulment rather than a divorce. Grounds for annulment include: Lack of consent (husband or wife were not of an age or mental state to be able to give consent–though a parent can give consent for someone between the ages of 16 and 18); Bigamy (one party was already married); Incest (the couple were related more closely than second cousins); and Lack of consummation (sexual relations never occur).
Yes, if the spouses agree on the basic terms for ending their marriage. Usually a written separation agreement is drawn up, signed by both parties, and submitted to the court after the necessary waiting period (60 days at the most). If the agreement seems fair to the court, a divorce decree can be entered immediately. However, if there is property to be divided, it is usually unwise for a spouse who does not know much about the family finances to sign a separation agreement before getting the information from the discovery process. (See below).
No. The law does not say a person must have a lawyer. However, self-representation is not recommended. It is like being your own doctor – which could be very dangerous. Most judges do not like the confusion caused by someone who does not understand the rules of court or the way the law is applied. Every effort should be made to obtain the services of a lawyer who: Practices in the area of domestic relations; Understands the client’s needs and wishes; and is honorable in dealing with the other side. Anger and fights are not productive and tend to drag out the proceedings and cost the parties more money.
If you need help with: health insurance,
child care, food expenses, housing, rent, utilities, or other
expenses, go to your county’s office of Division of Family and
Children. Find the address of your local office at
Cabinet for Health and Family Services.
You can get a protective order. You can
contact your local county clerk’s office to ask for help getting
a protective order. You don’t need an attorney, and there is no
charge. You can also find information on protective orders
Residency. One of the spouses has to have lived or been stationed in Kentucky for at least 180 days before the court action is begun.
Court and Fee. A Petition for Dissolution of Marriage is filed in circuit court with a filing fee which varies from county to county but is usually in the range of $120 to $150. A very poor Petitioner (the person filing the Petition) who fills out a form showing their income and expenses can usually get the court to allow filing without the fee.
Summons. The Petition is attached to a Summons, which tells the Respondent (the person from whom you want a divorce) that they must file a Response in court within 20 days. For the divorce action to get started, the Summons and Petition must be "served" on (personally delivered to) the Respondent by a government official or by restricted-receipt mail delivery.
Default. The Respondent can choose not to respond, but if they do not, a Default Judgment may be entered against them, meaning that the Petitioner may get everything they ask for in the Petition.
Absent Respondent. If the Petitioner does not know where the Respondent is, it is still possible to get a divorce (extra time, procedures and costs are required), but the court will not be able to issue orders making the Respondent pay maintenance (alimony) or child support.
Waiting Period. The parties have to have lived apart (no sexual relations) for at least 60 days before a divorce can be granted. During the waiting period, the Petitioner can file a motion asking for temporary orders, such as for temporary child custody and support, or temporary maintenance or use of the marital home. There should be a hearing on any such motion, with notice to the Respondent allowing them a chance to come to court.
Exchange of Information (Discovery). During the waiting period (and for as long as it takes beyond that) the parties must give each other information relating to the issues between them. This exchange, called "discovery," is a chance for each party to find out what information needs to be presented to the court to help the judge understand the issues. If one party is "in the dark" about the marital finances, discovery gives them a chance to get the information they need, by demanding to see canceled checks, bank account statements, loan papers, deeds, or other documents that would help them understand what the assets and debts are. Many courts have a standard disclosure form which the parties must fill out.
Clinic. Many courts now require parents of minor children to attend an educational session, often called a clinic, before they may get a divorce. The clinic explains the effect of divorce on children and helps parents understand how things they say and do in connection with the divorce can affect their children.
Proof. The issues are decided by a judge or commissioner who usually holds a Final Hearing (trial) at which the parties testify and offer evidence in their support (witnesses, documents, photos, etc.) The final hearing is the last chance a party has to present their point of view to the court. Sometimes parties agree to give their testimony and evidence on paper ("by deposition"), and not appear at a hearing.
Decree. A Decree of Dissolution is the final court order granting the divorce and settling all the issues between the parties. Depending upon how many difficult issues there are, how much the parties are arguing, and what the lawyers’ and the court’s schedules are, the process of getting a final decree may take less than six weeks or more than two or three years.
If the parties cannot agree, the usual issues which must be decided by the court are:
Child Custody (generally sole or joint);
Visitation or time sharing with the children;
Child Support and health insurance for the children;
Division of marital property and marital debts; and
Return of non-marital property.
Home State. A Kentucky court cannot decide custody of children if Kentucky is not their "home state." They must have been living in the state for at least six months (or since birth, if the child is less than six months of age).
Factors Considered. The law requires a court to look at the following factors: The wishes of each parent, and any "de facto custodian"; the wishes of the child; the child’s relationships and adjustment to home, school and community; the mental and physical health of all concerned; domestic violence, if any, and its impact on the child; and, if the child has been in the care of a de facto custodian, the reasons why and the amount of such care.
The court may not consider a parent’s conduct that does not affect the child; or a parent’s abandoning the family home to escape physical harm from domestic violence.
Under Kentucky law, a person who has provided most of the care and financial support of a child for six months (if the child is less than 3) or for a year or more (if the child is three or older) is a "de facto custodian" and must be considered for permanent custody on an equal footing with the child’s parents.
In recent years there has been a strong trend in Kentucky courts toward awarding parents joint custody.
Both parents have to contribute to the child’s support and to work-related child care costs. The amount each parent must pay is based upon their gross (before tax) income, after deductions are allowed for: health insurance premiums for the child; child support being paid on older children; and alimony being paid. There is a chart in the law setting out what amount must be paid at each income level. The parent whose obligation is greater must pay the other parent the difference between the two support amounts.
If one parent is not working but is able to work, the judge may assign them a minimum-wage income and figure their child support obligation on that basis.
When a person intentionally violates a Court order, they can be found in contempt of court, and fined or even jailed. In child support cases, wages can also be garnished. Your local county prosecutor’s office can help you enforce a child support order.
Marital Property. With certain exceptions, all property which a couple came to own during the time they were married is marital property to be divided by the court. Some examples of marital property are: a) one spouse’s pension; b) the increase in value of one spouse’s non-marital property, if the value was added by efforts made during the marriage; and c) purchases made by one spouse using their own wages or benefits earned during the marriage.
Non-Marital Property: The following is not marital property: a) Anything owned by one party prior to the marriage, and anything gotten in exchange for something owned prior to the marriage; b) Gifts or inheritances to one party only; jury awards for pain and suffering (but money for lost wages is considered marital property);
Debts. Usually the judge will look at and divide the debts at the same time they are deciding the division of property. However, it is important to know that the court order telling Spouse A to take responsibility for a debt does not keep a creditor from suing to collect that debt from Spouse B. The divorce order simply means that, if the creditor gets their money from Spouse B, then B may take A back to court to get repaid.
Division. The court must make an "equitable" (fair) division of property, considering: What each spouse gave in order to get the property; How much non-marital property each spouse has; How long the marriage lasted; and, each person’s economic situation, including where the children’s home should be.
Need. A court may not award alimony unless 1) the spouse asking for it does not have as much property as they need to support her or him; and 2)the needy spouse cannot get a job and support himself or herself, or needs to stay home and care for a special-needs child.
Amount. The amount of alimony and the number of months or years it will last depend on what the court decides after considering: How much the person needs it; How much time it would take the person to get trained for a job and become self-supporting; The couple’s standard of living during the marriage; The length of the marriage; The age and health of the needy spouse; The ability of the non-needy spouse to meet the other’s needs as well as their own.
Yes. It does not matter who files for divorce; the wife can get her maiden or former name back as part of the final divorce as long as she asks the court to do this. She does not have to get her maiden or former name back; she can keep her married name after the divorce if she wants to.
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