In Kentucky, divorce is referred to as dissolution of marriage and can be filed by anyone who has been a resident of the state for at least 180 days. In a dissolution procedure, the petition for dissolution is like any other lawsuit and must be provided to the other side, regardless of whether a husband and wife are in opposition with one another. Preparing and notifying the other side of the documentation is called service of process and is governed by the Kentucky Supreme Court rules of civil procedure.
Once the other side has been given notice that there is a dissolution of marriage action pending, the process of identifying and valuing property, as well determining child custody and support will begin. In some cases, spousal support—which in Kentucky is referred to as maintenance—is also a part of the dissolution of marriage. Oftentimes, family courts will have to deal with issues of domestic violence, dissipation, or emergency custody needs on the basis of violence or abuse in a home. All family issues—from adoption to juvenile children and everything in between—fall on the family courts.
Property issues are sometimes difficult in today’s world because there are second, third, and fourth marriages. Sometimes people get married when they are in their thirties, forties, fifties, or sixties and have therefore accumulated a significant number of assets during the course of their life. In those kinds of cases, property must be categorized as marital or non-marital, both of which are defined by Kentucky statutes. Marital property is defined as all property acquired during the course of the marriage, and non-marital property is defined as all property that was not acquired during the course of the marriage. For example, if someone’s father gave them a Corvette when they were 16 years old and they had kept that Corvette their whole life, it would be considered that individual’s non-marital property. As such, they would be allowed to have that Corvette restored to them in whole. However, if one spouse had a vehicle prior to the marriage and both spouses agreed to use money they’d both earned to restore the car, thereby bringing the value of the car from $6,000 to $20,000, then there would be a marital claim to the car due to the co-mingling of monies.
It is important that anyone who will be or is currently going through a divorce understands how and why property is classified the way it is, and the impact that co-mingling of assets can have on the classification of property. According to many psychological and social articles, money, in-laws, and infidelity are the top causes of divorce. Kentucky is a no-fault divorce state, which means that even if the cause of the divorce was infidelity, the divorce itself would not be considered either party’s fault. People can choose to get divorced so long as they believe the marriage to be irretrievably broken with no hope of reconciliation.
In the summer of 2018, the state of Kentucky adopted a presumptive statute which means that both parents are on equal footing when it comes to the custody of their children. This means that unless one parent is in jail or in a psychiatric ward, the other parent is not going to get sole custody of the children. I’ve been a lawyer for 39 years, and this is not the way it was at the beginning of my practice. In those days, mothers received custody of the children and fathers were allowed visitation rights, but nowadays I represent a number of fathers who are joint legal custodians with 50 percent of the custody time. Children are best served by their parents refraining from fighting, bickering, and carrying on against one another, because this type of behavior only harms children.
Over the course of my career, there have been many changes with regard to how children are raised. For example, we now handle many same-sex divorces and agreements. In these matters, there are often issues regarding biological parenthood and child custody. If there was a sperm donor involved, then there will be questions as to which individual is the biological parent and therefore questions as to whom should have custody of the child. Prior to the Supreme Court ruling that recognized same-sex marriages, we encountered situations where biological parents would take children away from non-biological parents, leading to huge legal battles with no clear grounds for the court to assume jurisdiction or to condone one or the other side. The Supreme Court ruling has allowed us to utilize protections for children who have been born or raised in same-sex marriages.
The financial support of a child in Kentucky is scheduled by statute with consideration of the joint gross income (pre-tax income) of the parents and the number of children. If two parents have a joint gross income of $100,000 and one parent makes 70 percent of the gross amount and the other parent makes 30 percent of the gross amount, then the difference between the two would dictate the actual amount that would be paid, and the higher wage earner would pay child support to the lower wage earner.
If there is a circumstance which is not covered by one of the schedules in Kentucky, then the courts will entertain needs-based arguments in order to determine the true budgetary needs of the children. In today’s world, children are very busy people—they have ballroom dancing, karate, piano lessons, cheerleading, soccer, baseball, football, and you name it. The parents have to pay for these expenses if they want their children to have the same kind of lifestyle that they did when they were together. Attempts to separate all of these issues that are directly related to a family’s everyday living needs can become very complicated.
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