Divorce / Family Law

 

INTRODUCTION

Unfortunately, divorce is a part of life in our country. It affects everyone. Even if you, personally, have never been through a divorce, odds are that you know someone has. This brochure is intended to provide some general information on divorce in the Commonwealth of Kentucky. Some of the things discussed in this brochure will apply to your case; some will not. The law is always subject to change, amendment, reinterpretation and different application by any number of judges.

WARNING!! Nothing on this site (or, consequently, anything else on the internet, self-help books, or advice of your friends, neighbors or relatives) can substitute for the legal advice of an attorney after discussing your particular situation. Any attempt to use this brochure as a do-it-yourself divorce guide will certainly lead to disaster.

NO-FAULT DIVORCE:

Kentucky is now a “no-fault” state. This means that, unlike thirty to forty years ago, there is no any need to prove grounds in order to get a divorce. You do not have to prove infidelity, habitual drunkenness, abandonment, or any of the other reasons one used to have to give in order to get a divorce. The only thing that must be proven is that there has been an “irretrievable breakdown of the marital relationship” and there are no prospects for reconciliation. More simply put, you are telling the court that the two of you can no longer get along as husband and wife. No one will ever ask you why.

Divorce is a painful experience for everyone involved and a lot of people feel they need to tell the judge how awful and horrible their spouse is. The fact is, in most divorces, the judge probably will not care unless children are involved and even then only if it affects the children (You may think it is terrible that your soon-to-be ex-spouse likes to go to the riverboats and gamble. However, as long as your children don't have to go without food, a roof over their head, or clothing and he/she is not betting the baby’s crib on the next roll of the dice, the judge is not going to want to hear about it.)

The net result of Kentucky being a no-fault state is this: if one spouse wants a divorce, there is really very little that the other spouse can do to stop it. A party who does not want a divorce can petition the court to order a conciliation conference. This is essentially one session of marriage counseling and if the other party is set on getting a divorce, one session of marriage counseling is not going to change his/her mind. More than likely, it will only delay the inevitable and run up the costs of the divorce.

UNCONTESTED VS. CONTESTED DIVORCE:

If the two of you agree on ALL ISSUES you can have an uncontested divorce. This means that you have reached an agreement as to child custody, child support, child visitation, maintenance, property division, and debt division. If you have reached such an agreement, your attorney can draw up all of the necessary papers to complete the divorce and sometimes you can even avoid having to appear in court.

If you have not reached an agreement on all issues, you have a contested divorce. In that event, the attorney will litigate your case to resolve the issues you can't agree upon.

LEGAL SEPARATION

Although legal separation is possible in Kentucky, we do not generally recommend it. There are a few reasons for this. First and foremost, you will usually wind up divorced anyway. Additionally, one year after the signing of the separation agreement either party can turn it into a divorce simply by filing a motion with the court. Finally, legal separations require more work and legal expense than an actual divorce, so you are not going to save any money.

There are certain instances when parties want to live apart and resolve all their issues regarding children, support, and property without actually getting divorce. Sometimes it is for religious reasons; sometimes it is something as simple as being able to stay on your spouse’s health insurance. Sometimes, people do not feel like they are ready for a divorce and want to have a “trial separation.” A separation is never a substitute for effective marriage counseling. If you want your marriage to work, get counseling and work at it. We will be happy to recommend some counselors. Your attorney is not a marriage counselor.

ANNULMENT

Annulments are granted by the court in only very limited and rare circumstances. It has the legal effect of making your marriage void as if you were never married at all. If for religious or other reasons you want to get your marriage annulled, please tell your attorney before the divorce is filed.

ANTENUPTIAL/PRENUPTIAL AGREEMENTS

These are one and the same (that’s “ante” as in before, not “anti”). These agreements are entered into prior to the marriage that set out how property, debt and other miscellaneous issues will be dealt with in the event of divorce or death. If you have signed one of these agreements, tell your attorney IMMEDIATELY. There is no point in wasting a lot of your attorney’s time, your spouse’s attorney’s time, the court’s time, and, most importantly, your money arguing over issues that the two of you agreed on prior to your marriage. If you feel like you signed a bad pre-nup, definitely tell your attorney. The law in this area is very technical and your attorney may be able to help you avoid the pre-nup.

KENTUCKY DIVORCE REQUIREMENTS

To file for a divorce in Kentucky, you must meet certain requirements

You have to be married;
At least one party must have lived in Kentucky for 180 days prior to filing for divorce;
You have to have been "separated" for at least sixty days before a divorce can be final. (As far as the law is concerned, you can be living under the same roof as long as the two of you are not engaging in sexual relations for at least sixty days prior to entry of the final divorce decree.) NOTE: If you have children under 18, the sixty day waiting period does not begin until your divorce is filed. If there are no children, the sixty days could have expired before the papers are ever filed. In that case, you could be divorced within days or weeks after the filing.
Your marriage has to be irretrievably broken with no hopes of reconciliation; and,
The wife cannot be pregnant.

DOMESTIC VIOLENCE

Violence within a family is much more prevalent in our society than people realize or want to admit. People are often shocked when they find out for instance the Bing Crosby, the man who sang “White Christmas” and often co-starred with Bob Hope, was a child abuser who regularly beat and humiliated his children. Each year, domestic violence affects more than 4 million families and a large number of serious assaults occur at or after the point of separation or divorce.

If you have reason to fear that your spouse may assault you, or he/she has done so in the past, you need to tell your attorney the first time you meet with him/her. This will enable the attorney to help you get the protection you need.

If there are allegations about you committing domestic violence against your spouse or children during the marriage, whether founded or unfounded, tell your attorney about it so that he/she can deal with the issue. We guarantee it will come up in the divorce. If you are innocent, your attorney will need an opportunity to plan for your defense. If you did commit abuse, it will need to be dealt with, treated, and stopped.

CHILDREN

If you have children, your divorce will probably be as difficult for them as it is for you, if not more. Kids normally feel guilty, confused, depressed, angry, and other emotions. You may be sharing the same emotions, but you have a lifetime of experience to fall back on to help you deal with it. Your children only have two parents, both of whom they love, respect, and look up to, and who seem to now be a source of distress rather than reassurance.

You need to ease the burden on your children. Part of this involves how you tell them about the divorce and what you say about your spouse. If possible, it is usually better if you tell the children about the divorce together. Even if you despise the person you are now divorcing, you obviously had some warm fuzzy feelings about them at one point if the two of you brought a child into this world. Moreover, the two of you will be linked together forever as a result of that child, so you may as well get used to working together for the child now, even if you cannot work together for anything else.

Do not dump your bad feelings about your spouse on the children. Assure them that the divorce is not their fault and that no matter what the two of you will always love them and they will still have both parents. Do not talk badly about the other parent. Remember, it took both of you to make the child. Make sure the children know that it is okay to love both parents.

Under no circumstances should you put your children in the middle of your divorce. Divorce is hard enough on kids, they do not deserve to be treated as pawns. One of the quickest ways to screw up your case is by trying to “help” it by coaching the children and getting them involved. If the court believes that you have been coaching or using your children, you will lose your case. If I believe you are using your children to get to your spouse, you will lose your attorney.

By the way, most courts require parents and children to go through transitional classes to help parents and children learn to deal with the family break up. You and your children can gain a great deal from this program.

10 Commandments for Divorcing Parents

I. Thou shalt put thy child’s well-being above all other things
II. Thou shalt love your child
III. Thou shalt not interfere your child’s love of the other parent
IV. Thou shalt not discuss property, debt, maintenance or other divorce issues with your child
V. Thou shalt not use your child as a messenger to your spouse
VI. Thou shalt not use your child as a spy on your spouse
VII. Thou shalt not have a girlfriend/boyfriend during your divorce
VIII. If you ignore Commandment VII., thou shalt definitely not introduce your children to your new girlfriend/boyfriend during the divorce
IX. Thou shalt not spoil your child in an effort to buy their love
X. THOU SHALT NOT BE A JERK!!!!

CUSTODY

Hopefully, for the sake of your children and your checkbook, you and your spouse will be able to decide with whom and where the children will live. A custody battle is guaranteed to put you in the middle of a bitterly contested and expensive divorce. Custody cases are the most destructive litigation. So, before deciding to get into a custody fight, make sure that your child will be better off with you than with your spouse. Do not put your family through a custody battle just to feed your own ego or soothe your pride.

If you have children, read this information carefully. Ninety-nine percent of parents have gross misconceptions about what custody really means.
There are two ways the courts look at custody: 1. Where the child lives and with whom; and, 2. How decisions are made about the child.

The first decision you and your spouse, or the court if you are unable to agree, must make is whether you will have joint or sole custody. This designation is not as much about where the child lives as how decisions are made!

In a sole custody situation, the child lives with the sole custodian and that parent has the responsibility of making all of the major decisions (educational, health, moral, religious) that affect that child. Sole custody is discouraged by the legislature and the courts. It is used where one parent is unwilling or incapable of participating in a meaningful decision-making process. Sole custody might be awarded where:

1. One of the parents is incarcerated;
2. One of the parents has limited mental or physical abilities and is incapable of participating in the decision making process;
3. One of the parents makes inappropriate decisions (drug use or other illegal or immoral act in the presence of the child; or
4. One of the parents has committed domestic violence or abuse and should not be allowed to participate.

Joint custody is preferred by the law. In a joint custody situation, both parents make the major decisions that affect the child. Put very simply, when the child is staying at your home, you get decide what kind of toothbrush the child will use. But, you and your spouse must decide together whether your child gets braces! Neither parent has more "say so" than the other. You must work together to make the decisions. If you can't decide, the court will decide for you.

In a joint custody arrangement, one of you will be designated primary residential parent. The other will be designated secondary residential parent. This designation often goes along with where the child lives most of the time, but it doesn't have to. The designation of primary residential parent means that this is the primary address of the child for school, etc. It does not give one parent more "say so" or authority to make decisions!

So, where does the child live in a joint custody arrangement? There are as many answers to this question as you can imagine. We suggest that you and your spouse come up with your own schedule that suits the needs of your child! You know your child better than anyone! If you need suggestions, we'd be happy to provide some common scenarios.

If you and your spouse can't agree on custody, the court will decide for you. Kentucky Revised Statutes sets forth various criteria the court should look to in making a custody determination and include:

The child’s relationship with each parent;
Which parent was the primary caregiver during the marriage;
The child’s relationship with other relatives;
The wishes of the child (Although there is no magic age at which the child can choose where they want to live, the older the child is, the more weight the court will likely give his/her decision);
Domestic violence during the marriage; and
Which parent would be able to provide the most continuity for the child;

CHILD SUPPORT

If you are not the residential custodian, you will be paying child support. The law requires it, the courts will order it, and you will have to pay it. Why is child support is required? Because you brought a child into the world, and the tax payers of this state should not be forced to support that child.

Child support is calculated using the gross income of each parent, adding it together, and plugging that figure into the child support guidelines set out in Kentucky Revised Statutes 403.212. The court will also figure in the cost of health insurance and can also include the cost of child case required for employment.

The child support as calculated by the child support guidelines is the minimum that is required to be paid. You cannot get around it by agreeing or offering to pay for all of the child’s school clothes, all of their extracurriculars, or anything else instead of paying the child support. You can pay more if you like, and indeed, you are encouraged to do so, but you must pay the minimum.

Three Golden Rules for Payment of Child Support

1. Pay the amount the court orders.
2. Pay when the court orders.
3. Pay how the court orders (usually by wage assignment, but if the court orders you to pay your child support while doing the hokee pokee and impersonating a chicken, you had better start clucking).

Failure to follow any one of these rules could result in contempt charges and possibly even jail time.

If at any time your income or the income of your spouse changes, petition the court for review of the child support order. If the change in income results in a 15% or more change in the amount of child support owed, the court will modify it. Talk to your attorney or contact your county attorney’s child support enforcement division.

VISITATION

Remember the Ten Commandments for Divorcing Parents? Number ten especially applies to the area of visitation. If the mother and father can agree on visitation the court will usually approve the plan. The best plans maximize the time each parent gets to spend with the child. Ideally, each parent will work with the other’s schedule and help coordinate childcare, school activities, church, vacations and the fact that as children start to become teenagers they will have a life of their own.

If the parents cannot agree on a visitation plan, the court will order the standard visitation schedule of the county in which you live. This is usually every other weekend, a weekday evening on the weeks of no weekend visitation, and then additional time for school breaks and holidays. If no one wants to become a “weekend warrior,” the two of you will need to come up with a visitation schedule everyone can live with.

MAINTENANCE

Sometimes maintenance is called alimony. Whichever you call it, it is money paid by one party to the other above and beyond any property settlement or child support. There is no formula for maintenance like there is with child support. Instead, it is an equitable decision made by the court based on various factors, including the length of the marriage, the income disparity of the parties, the share of property and debt each party received, and the lifestyle the parties enjoyed during the marriage. Courts rarely award permanent maintenance (i.e. until death or remarriage); instead, the court will usually award “rehabilitative maintenance.” Rehabilitative maintenance is maintenance paid to the other spouse for a short period of time to allow that person to “get on their feet.” It will usually be enough to allow the other person to get a new job, education, etc.

PROPERTY & DEBT DIVISION

The court will try to divide the marital property and the marital debt fairly and equitably. Generally, this means that for every dollar of property you take, you will also have to take a dollar’s worth of debt. If, after dividing everything up, one party has much more property than they have debt, that person will have to pay the other party in order to equalize the division.

Marital property is presumed to be any property acquired from the date of the marriage to the date of the divorce with certain exceptions. Any property that you owned prior to the marriage is non-marital, as is any property you received by gift (even a gift from your spouse), inheritance or property you can trace back to one of those exceptions. Marital debt follows similar guidelines. If you believe you have a non-marital claim to property or you believe certain debts are your spouse’s non-marital debts, be sure to discuss it with your attorney and provide proof of your claims.

Divorcing your spouse almost inevitably takes a toll on your credit rating. Often people findthemselves in a situation where they go from a two-income household to a single income, but with the same or similar amount of debt, possibly more whenchild support or maintenance is awarded. Most people also do not realize that creditors usually will not honor a court order from a divorce because the creditor, itself, is not a party to the case. This mistaken assumption that one is off the hook for a debt simply because their spouse or ex-spouse has been ordered to pay the debt can result in several missed payments and a several point reduction of your credit score that could last for years.

Some of the damage to your credit can be avoided with a little planning and effort on your part. Consider the following steps, possibly even before you file for divorce:

If you have joint accounts with your spouse, do your best to convert them to individual accounts as soon as possible. Depending upon your situation, this may or may not be feasible. Converting the account to individual accounts will most likely require your spouse’s permission, which will probably also require that you tell him/her that you want a divorce. The earlier you get this account divided the easier it will be later in the divorce.

Begin converting your credit card accounts. Similar to the bank accounts discussed above, but sometimes it is easier to accomplish this one. If your spouse is only listed as a secondary cardholder or limited privileges cardholder, you probably will not need to notify him/her of any changes. If it is a joint account, close it as soon as possible so no further charges can be made. Keep in mind that, at the beginning of the divorce, courts will not usually enter orders temporarily allocating debt and people often ignore credit card payments in favor of mortgages and other necessities. However, at least maintaining the minimum payment will usually prevent harsh the harsh interest penalties several cards impose. Additionally, you may be able to contact the card company and request a one or two month “payment holiday.” Your balance will continue to accrue interest, but you will not be reported as paying late.

Start working on refinancing your home and/or car loan. As stated above, divorce will often make a ding on your credit rating. In fact, many lenders subscribe to what insiders call the “scandal sheets.” These are listings of people who have applied for credit or loans, been sued, and filed for divorce. The long story short is, you are in a better position to get a loan either before you file for divorce or even while the case is pending than you are once it is over. Going ahead and at least getting pre-approved to refinance will show the court and your opposing party that you are capable of taking on the debt and often makes the division of property easier. This will also help give you a better idea of what your household budget will look like after the divorce. If you are looking to refinance the house, keep in mind that if there is any equity in the property, you may have to pay your soon-to-be-ex for his/her share.

If you don’t make enough to refinance the car and/or house, it might be better to just sell the property, split the money and move on. It might be heart breaking to have to sell a home you have lived in for years, but it is a better way to guarantee that you will not have to deal with credit damages from a vindictive ex spouse or jumping right into deep credit trouble (i.e. bankruptcy) right after the divorce by over-extending your finances.

You should also consider opting out of receiving pre-screened offers for credit or insurance. A spiteful ex may be tempted to apply for a loan in your name just to ruin your credit. Get the details on this by going to HYPERLINK "http://www.optoutprescreen.com" www.optoutprescreen.com. I would also suggest signing up for a credit fraud alert service, such as HYPERLINK "www.freecreditreport.com" www.freecreditreport.com, that will alert you to any changes made in your credit report.

Make sure that all payment statements are coming to you. If you continue to allow the statements to go to an address where you and your spouse have equal access, you are asking for trouble. To properly protect yourself, you need to know what bills/payments are out there and for that you need to control them. If you are one of the many people who use electronic/internet billing payment, make sure the creditor has the correct e-mail address for you and that you change all passwords. For more discussion of this particular topic, see the article on this site on Pre-Divorce Planning.

It is best to start planning and protecting your credit as early as possible. Some experts suggest planning as much as six months in advance, but that is not always doable. Nevertheless, even though this may seem like a lot of work at the front end of your separation, it will most assuredly save you from as much as ten years of credit-related headaches in the aftermath.

Sources:
Marshall Loeb, “Learn to Minimize Impact of Divorce on Your Credit” Paducah Sun, Feb. 3, 2008 (orig. printed in McClatchey News Service).
John Ulziheimer, Your Nothing But a Number and various articles at www.Credit.com

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