Kentucky Divorce Procedures

Kentucky Divorce Procedures

Complete overview of Kentucky divorce laws for people considering a Kentucky divorce or filing a Kentucky divorce with issues to be resolved about child custody, child support, visitation and alimony.

Kentucky Divorce Residency Requirements

In order to file your Petition for Dissolution of Marriage in Kentucky, you must make sure the Circuit Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Kentucky residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

Court may enter decree of dissolution or separation. A) The Circuit Court shall enter a decree of dissolution of marriage if: a) The court finds that one (1) of the parties, at the time the action was commenced, resided in this state, or was stationed in this state while a member of the armed services, and that the residence or military presence has been maintained for 180 days next preceding the filing of the petition.

The Dissolution of Marriage is typically filed with in county in which the filing spouse lives.

(Kentucky Statutes – Title 35 – Chapters: 403.140 and 452.470)

Since dissolution of marriage is governed by state law, it is required that you meet specific residency requirements in order to file for a dissolution of marriage in the state of Kentucky. It is most common that people file for a dissolution of marriage in the county in which they live. If you are unsure of whether or not you meet the Kentucky residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

Kentucky Grounds for Divorce

The Petition for Dissolution of Marriage is the initial document filed with the Kentucky court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

Irretrievable breakdown.

Whether mutually agreed upon or not, the court will examine whether or not the marriage is irretrievable broken. If the court finds that there is a chance the marriage can be saved, it may order a futher attempt at reconciliation through counseling sessions.

(Kentucky Statutes – Title 35 – Chapters: 403.140)

Every dissolution of marriage case that is filed in the state of Kentucky must declare the grounds in which the dissolution of marriage is to be granted. The grounds for dissolution of marriage must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a dissolution of marriage, or agreeing to a dissolution of marriage, make sure that you completely understand the grounds and any potential legal repercussions.

Kentucky Uncontested Divorce

This information is an overview of the uncontested Kentucky divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Kentucky.

To file for a dissolution in Kentucky, the filing spouse must be a resident of the state for 180 days before beginning the action. The same applies to military personnel stationed in the state. The action may be filed in a county where either spouse resides.

Kentucky is a No-Fault state. Irretrievable breakdown is the only grounds for divorce, and the dissolution is not granted until the couple have lived apart for 60 days.

Actions are filed in the Circuit Court. The filing spouse is called the Petitioner; the responding spouse is called the Respondent.

Legal separations are permitted on the same grounds as marital dissolutions, with the same residency requirements.

Here are the required steps for filing a dissolution in Louisville, Jefferson County, and they follow the pattern for the entire state.

To file for a dissolution in Kentucky in a marriage without minor children, the Petitioner must file the following forms:

a) A Petition, which identifies the parties, their residences, establishes their separation date and that there are no children under 18 and asks for the desired relief;

b) A Certificate of Divorce, VS-300 form, which must be obtained from the Circuit Clerk and records the dissolution for the Commonwealth’s vital statistics;

c) A Case Information Sheet, which identifies all the parties in the action;

d) A Summons, which informs the Respondent that he or she has 20 days to file an answer or face a default judgment against him or her, unless the Respondent agrees to sign an Entry of Appearance Waiver;

e) An Entry of Appearance Waiver, by which he or she agrees to the dissolution and does not contest the action. In this event, the Entry of Appearance Waiver as well as a Marital Settlement Agreement, which spells out the terms and conditions of the division and distribution of the marital estate, are filed at the same time. When the Respondent spouse signs the Entry of Appearance Waiver, he or she does not receive a Summons. If the couple are in agreement, each spouse may file the Mandatory Case Disclosure;

f) The Mandatory Case Disclosure, which gives the court an overview of the spouses assets and debts and to which the Respondent may agree in an Acknowledgment.

If the Respondent will not sign an Entry of Appearance Waiver, he or she must be served the Summons and Petition by one of the following:

a) Certified Mail, restricted delivery, from the mail room at the courthouse;

b) The Sheriff, who delivers the divorce papers;

c) A Warning Order Attorney, which is used when the Respondent has left Kentucky to avoid service of process, or when the Petitioner does not know “any means to find the address of the other party.”

After all the above filing have been made and if the couple is in agreement, the Petitioner may file a Notice-Motion-Order to Schedule Hearing. To finalize the action, the Petitioner must also file the following:

a) The Deposition of the Petitioner, which establishes a) the grounds, b) that neither spouse is in the military, c) that the Respondent is in default or that a marital agreement has been reached;

b) The Findings of Fact, which establishes that: 1) the residency requirements have been met, 2) that the parties are lawfully married, 3) that they have lived apart for 60 days, 4) that the marriage is “irretrievably broken,” 5) there are no children and the wife is not pregnant and that, 6) a marital settlement agreement has been filed and is “not unconscionable”;

c) A Decree of Dissolution, which ends the marriage when signed by the judge.

If the Respondent fails to answer, the Petitioner must file a Motion for Default Judgement and Decree of Dissolution of Marriage and Decree of Dissolution of Marriage (with Default Judgment Entered).

To file for a dissolution in Kentucky in a marriage with minor children, the Petitioner must file all of the following forms used in a dissolution of a marriage without children. However, the forms for the Petition, the Mandatory Case Disclosure, the Marital Settlement Agreement and the Finding of Fact and Decree of Dissolution for couples with children contain additional information and are different than the same forms used by couples without children.

Couples with minor children may be required to take the Families in Transition (FIT) as part of the divorce filing.

Kentucky Simplified Divorce Procedures

Marital settlement agreements and separation agreements are specifically authorized.

[Kentucky Revised Statutes; Title 35, Chapter 403.180]

Each state has its own unique filing procedure. When filing for dissolution of marriage in Kentucky, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory dissolution of marriage documents to the county court. You will discover that some documents may be provided by the Kentucky Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Kentucky Laws and the filing requirements.

Kentucky Property Division Factors

In Kentucky, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Circuit Court within the Decree of Dissolution of Marriage.

Kentucky is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Circuit Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Circuit Court to be fair.

The court shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors including:

a) Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker;
b) Value of the property set apart to each spouse;
c) Duration of the marriage; and
d) 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 therein for reasonable periods to the spouse having custody of any children.

(Kentucky Statutes – Title 35 – Chapters: 403.190)

Since Kentucky is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

Kentucky Spousal Support/Maintenance/Alimony Factors

In Kentucky the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Circuit Court will order support from one spouse to the other on a case-by-case basis as follows:

The court will order maintenance on a temporary or permanent basis as it deems just, and after considering all relevant factors including: a) The financial resources of the party who is seeking support; b) The time that is need to complete an education to gain employment; c) The standard of living while married; d) The length of the marriage; e) The age and health condition of the parties; f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

(Kentucky Statutes – Title 35 – Chapters: 403.200)

Kentucky Child Custody Factors

In Kentucky, 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.

Both parnets will be given equal consideration and the court shall consider all relevant factors including:

1. The wishes of the child’s parent or parents, and any de facto custodian, as to his custody;

2. The wishes of the child as to his custodian;

3. 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 interests;

4. The child’s adjustment to his home, school, and community;

5. The mental and physical health of all individuals involved;

6. Information, records, and evidence of domestic violence;

7. The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;

8. The intent of the parent or parents in placing the child with a de facto custodian; and

9. 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.

(Kentucky Statutes – Title 35 – Chapters: 403.270)

In Kentucky, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Kentucky Child Support Factors

Either or both parents may be ordered to provide a reasonable amount of child support, without regard to any marital misconduct, and based on the official Child Support Guidelines which are contained in the statute. These guidelines are presumed to be correct, but may be adjusted based on the following considerations: a) a child’s extraordinary medical or dental needs; b) a child’s extraordinary educational, job training, or special needs; c) either parent’s extraordinary needs, such as medical expenses; d) the independent financial resources of the child; e) the combined parental income in excess of the Kentucky child support guidelines amounts; f) an agreement between the parents on child support, provided that no public assistance is being provided; and g) any other extraordinary circumstance. In addition, the court may order a parent to provide health care insurance coverage for the child.

[Kentucky Revised Statutes; Title 35, Chapters 403.210 to 403.212].

Kentucky child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Kentucky child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Kentucky child support deviation factors that may be applicable to the situation.

Kentucky Grandparent’s Rights

Grandparent Rights to Visitation: Visitation may be granted if the court determines that the visitation is in the best interest of the child. Chapter 405, Section 021 (KRS §405.021).

When Adoption Occurs: Visitation rights terminate except in the case of a stepparent adoption where there has been no termination of the parental rights of the parent whose parents are seeking visitation.

Child Custody Statutes: Best interest of child considering: a) wishes of parents and child; b) interaction and interrelationship between child and parents, siblings and other significant persons; c) child’s adjustment to home, school and community; and d) mental and physical condition of all persons involved. KRS §405.020 et seq. and §403 et seq.

Parents May Choose: Yes

Kentucky Military Divorce Laws

A Kentucky military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Kentucky Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Kentucky court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Kentucky court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in Kentucky
b) You or your spouse must be stationed in Kentucky

Grounds for Kentucky Military Divorce

The grounds for a military divorce in Kentucky are the same as a civilian divorce.

Dividing the Property

Along with the normal Kentucky property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Kentucky, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Kentucky child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Kentucky Child Support Guidelines

The Kentucky child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Kentucky child support order.

Kentucky Child Support Guidelines

> Income Share Model *: YES
> Percent of Income Model *: NO
> Worksheets Available: YES
> Extraordinary Medical Expenses Add on: YES
> Childcare Add on: YES
> Secondary Education Support: NO
> UIFSA: YES

* The Income Shares Model: Kentucky child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Kentucky child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.

For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.

As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.

For example: It is not common for a custodial parent to be paying support to a non-custodial parent.

Kentucky Child Support Definitions

The court may adjust the minimum child support award, of either or both parent’s share of the minimum child support award, based upon the following considerations:

a) A child’s extraordinary medical or dental needs;
b) A child’s extraordinary educational, job training, or special needs;
c) Either parent’s own extraordinary needs, such as medical expenses;
d) The independent financial resources, if any, of the child or children;
e) Combined parental income in excess of the Kentucky child support guidelines;
f) The parents of the child, having demonstrated knowledge of the amount of child support established by the Kentucky child support guidelines, have agreed to child support different from the guideline amount. However, no such agreement shall be the basis of any deviation if public assistance is being paid on behalf of a child under the provisions of Part D of Title IV of the Federal Social Security Act; and
g) Any similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate.

DEFINITIONS:

a) “Income” means actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed.

b) “Gross income” includes income from any source, except as excluded in this subsection, and includes but is not limited to income from salaries, wages, retirement and pension funds, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, Supplemental Security Income (SSI), gifts, prizes, and alimony or maintenance received. Specifically excluded are benefits received from means-tested public assistance programs, including but not limited to public assistance as defined under Title IV-A of the Federal Social Security Act, and food stamps.

c) For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, “gross income” means gross receipts minus ordinary and necessary expenses required for self-employment or business operation. Straight-line depreciation, using Internal Revenue Service (IRS) guidelines, shall be the only allowable method of calculating depreciation expense in determining gross income. Specifically excluded from ordinary and necessary expenses for purposes of this guideline shall be investment tax credits or any other business expenses inappropriate for determining gross income for purposes of calculating child support. Income and expenses from self-employment or operation of a business shall be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. In most cases, this amount will differ from a determination of business income for tax purposes. Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business or personal use of business property or payments of expenses by a business, shall be counted as income if they are significant and reduce personal living expenses such as a company or business car, free housing, reimbursed meals, or club dues.

d) If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility. Potential income shall be determined based upon employment potential and probable earnings level based on the obligor’s or obligee’s recent work history, occupational qualifications, and prevailing job opportunities and earnings levels in the community. Action to establish or enforce child support — Guidelines to serve as rebuttable presumption for award — Factors that may rebut presumption for support award — Allocation of child-care costs and extraordinary medical expenses — Order for payment of health insurance coverage — Disclosure of information — Noncustodial parent’s health plan — Attachment of income for child support.

1. An action to establish or enforce child support may be initiated by the parent, custodian, or agency substantially contributing to the support of the child. The action may be brought in the county in which the child resides or where the defendant resides.

2. At the time of initial establishment of a child support order, whether temporary or permanent, or in any proceeding to modify a support order, the child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guidelines where their application would be unjust or inappropriate. Any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation.

3. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption and allow for an appropriate adjustment of the guideline award if based upon one (1) or more of the following criteria:

a) A child’s extraordinary medical or dental needs;
b) A child’s extraordinary educational, job training, or special needs;
c) Either parent’s own extraordinary needs, such as medical expenses;
d) The independent financial resources, if any, of the child or children;
e) Combined parental income in excess of the Kentucky child support guidelines;
f) The parents of the child, having demonstrated knowledge of the amount of child support established by the Kentucky child support guidelines, have agreed to child support different from the guideline amount. However, no such agreement shall be the basis of any deviation if public assistance is being paid on behalf of a child under the provisions of Part D of Title IV of the Federal Social Security Act; and
g) Any similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate.

4. “Extraordinary” as used in this section shall be determined by the court in its discretion.

5. When a party has defaulted or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs of the child or the previous standard of living of the child, whichever is greater. An order entered by default or due to insufficient evidence to determine gross income may be modified upward and arrearages awarded from the date of the original order if evidence of gross income is presented within two (2) years which would have established a higher amount of child support pursuant to the child support guidelines set forth in KRS 403.212.

6. The court shall allocate between the parents, in proportion to their adjusted gross income, reasonable and necessary child care costs incurred due to employment, job search, or education leading to employment, in addition to the amount ordered under the child support guidelines.

7. The court shall order the cost of health care of the child to be paid by either or both parents of the child regardless of who has physical custody. The court .order shall include:

1) A judicial directive designating which parent shall have financial responsibility for providing health care for the dependent child, which shall include, but not be limited to, insurance coverage, payments of necessary health care deductibles or copayments; and

2) A statement providing that if the designated parent’s health care coverage provides for covered services for dependent children beyond the age of majority, then any unmarried children up to twenty-five (25) years of age who are full-time students enrolled in and attending an accredited educational institution and who are primarily dependent on the insured parent for maintenance and support shall be covered.

If health care insurance coverage is not reasonable and available at the time the request for the coverage is made, the court order shall provide for health care insurance coverage at the time it becomes reasonable and available.

8. The cost of extraordinary medical expenses shall be allocated between the parties in proportion to their adjusted gross incomes. “Extraordinary medical expenses” means uninsured expenses in excess of one hundred dollars ($100) per child per calendar year. “Extraordinary medical expenses” includes, but is not limited to, the costs that are reasonably necessary for medical, surgical, dental, orthodontal, optometric, nursing, and hospital services; for professional counseling or psychiatric therapy for diagnosed medical disorders; and for drugs and medical supplies, appliances, laboratory, diagnostic, and therapeutic services.

9. The court order shall include the Social Security numbers of all parties subject to a support order.

10. In any case administered by the Cabinet for Families and Children, if the parent ordered to provide health care coverage is enrolled through an insurer but fails to enroll the child under family coverage, the other parent or the Cabinet for Families and Children may, upon application, enroll the child.

11. In any case administered by the cabinet, information received or transmitted shall not be published or be open for public inspection, including reasonable evidence of domestic violence or child abuse if the disclosure of the information could be harmful to the custodial parent or the child of the parent. Necessary information and records may be furnished as specified by KRS 205.175.

12. In the case in which a noncustodial parent provides health care coverage, and changes employment, and the new employer provides health care coverage, the Cabinet for Families and Children shall transfer notice of the provision for coverage for the child to the employer, which shall operate to enroll this child in the noncustodial parent’s health plan, unless the noncustodial parent contests the notice as specified by KRS Chapter 13B.

13. Notwithstanding any other provision of this section, any wage or income shall not be exempt from attachment or assignment for the payment of current child support or owed or to-be-owed child support.

Kentucky Dissolution of Marriage Definitions

This collection of definitions will help clarify some unique characteristics to the Kentucky Dissolution of Marriage laws, process and paperwork which is filed with the court.

Filing Party Title:
Petitioner

The spouse who will initiate the Dissolution of Marriage by filing the required paperwork with the court.

Non-Filing Party Title:
Respondent

The spouse who does not initiate the Dissolution of Marriage with the court.

Court Name:
Commonwealth of Kentucky ____________ Family Court __________ Division

The proper name of the court in which a Dissolution of Marriage is filed in the state of Kentucky. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Dissolution of Marriage Document:
Petition for Dissolution of Marriage

The title and name of the legal document that will initiate the Kentucky Dissolution of Marriage process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Dissolution of Marriage Document:
Findings of Fact, Conclusions of Law and Decree of Dissolution of Marriage

The title and name of the legal document that will finalize the Kentucky Dissolution of Marriage process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
Office of the Clerk of the County Circuit Court

The office of the clerk that will facilitate the Dissolution of Marriage process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

Irretrievable breakdown of the marriage is the only grounds for legal separation (or divorce from bed and board) in Kentucky. The spouse filing for legal separation must have been a resident (or a member of the armed services stationed in Kentucky) for 180 days prior to filing. [Kentucky Revised Statutes; Title 35, Chapters 403.050 and 403.140].

Property Distribution:
Equitable Distribution

The applicable Kentucky law that will dictate how property and debt is to be divided upon Dissolution of Marriage.