Divorce

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General Information About Divorce
Frequently Asked Questions About Divorce
How Property and Debts are Divided in a Divorce
What Happens in a Divorce if Someone Has a Pension?
Divorce and Residence
Filing a Divorce on Your Own

GENERAL INFORMATION ABOUT DIVORCE

What do you have to prove to get a divorce?
Kentucky has "no fault" divorce, which means you don't have to prove either spouse did anything wrong to get a divorce. (A divorce is sometimes called “dissolution of marriage”; both mean the same thing). The spouse who wants a divorce just has to tell the court that the marriage is "irretrievably broken" to get a divorce. There is really nothing the other spouse can do to stop a divorce.

Do the husband and wife both have to live in Kentucky to get a divorce here?
Either you or your spouse must be a resident of Kentucky for six months, or 180 days, before you file for divorce, and be a resident of the county in which you are filing before you can file for divorce.

How long do the husband and wife have to be separated before they can get a divorce?
You may file for divorce at any time, but you and your spouse must be separated for at least 60 days before the final divorce decree can be entered.

How much does it cost to get a divorce?
The court will charge a filing fee of $113. You usually have to pay this fee in cash or by certified check or money order. You should check with your local court clerk’s office to find out your county's exact fee. If you cannot pay the fee for the divorce, you can ask the court to waive the cost. This motion, generally called an IFP motion, can be requested at your county clerk’s office. If the judge decides that you qualify, then you do not have to pay for your divorce. If you have children of the marriage, you may have to attend a class called Families in Transition for helping children through a divorce. There is sometimes a fee for this class. However, this fee is usually based on a sliding scale. Lack of finances is not an excuse for not attending the class.

If you hire an attorney, you will also have to pay the attorney. You will need to check with the attorney about that attorney’s fees.

How long does it take to get a divorce?
The length of time it takes for a divorce depends on your individual circumstances. Generally, in Kentucky, couples with children of the marriage have to wait at least 60 days and attend Families in Transition before they can file their final papers. The court can issue temporary orders as soon as the divorce is filed, but the actual divorce and final orders cannot be done until 60 days have passed since the date the divorce was filed. It could take longer than 60 days, depending on the issues of your case and the court’s schedule. For couples without children of the marriage, a divorce can actually be finalized sooner, but this timing still depends largely on the issues in your divorce, such as whether your spouse will sign an agreement, whether you have significant assets, etc.

What happens after I file the divorce papers?
Your divorce case is assigned to a judge, and the judge will review any initial motions that you have filed, such as a motion to proceed without paying court costs. If you asked for temporary custody, child support, etc., the Court will have a “provisional” or “preliminary” hearing. At this hearing, the Court can enter restraining orders and other temporary orders such as custody, visitation, support, and property. The provisional order will be in effect only until the final hearing. The court can make different decisions at the final hearing.

How do I know if the Judge has approved my motion to proceed without paying court costs?
You will receive a letter in the mail informing you of whether you have been approved to file your divorce without paying costs, or whether you have to pay the filing fee.

How will the Court divide the property and debts of the marriage?
Generally, the Court will divide the property and debts of the marriage on a 50-50% basis. The Court can give more than 50% to one spouse if the Court has good reason to do this.

How does the Court decide which parent should get custody of the children?
The Court must decide the issue of custody based on the "best interests" of the child. The Court can consider many things, including:

  1. The wishes of the child’s parent or parents as to his or her custody;
  2. The wishes of the child as to his or her custodian;
  3. The relationship and interaction of the child with his or her parent or parents, siblings, and any other person who might significantly affect the child’s best interests;
  4. The child’s adjustment to his or her home, school, and community;
  5. The mental and physical health of all individuals involved; and
  6. information, records, and evidence of domestic violence.
How much visitation will the non-custodial parent get?
Some counties in Kentucky have set visitation standards, but others do not. You can call your county clerk’s office to find out whether your county has set visitation standards. Generally, the non-custodial parent will usually have visitation every other week-end, and one evening during the week. Holidays are split between the parents. The non-custodial parent's visitation can be limited if there is proof that visitations would be harmful to the child. The amount of visitation is NOT related to whether the parent has been paying court-ordered child support.

How much child support will the non-custodial parent have to pay?
Kentucky has child support guidelines that the Court uses to decide how much the child support order will be. The guidelines use the parents' income, child care expenses and other factors to come up with the child support amount. If a parent is not working, the Court will often assume that the parent could earn at least a minimum wage. The support order can also require the non-custodial parent to provide health insurance coverage for the child. You can see the child support guidelines at http://chfs.ky.gov/dis/cse.htm.

How do I finalize a divorce?
The divorce can be finalized either by going to court for a final hearing or by giving the court papers showing you and your spouse have agreed on all of the issues.

What will the court do as part of a divorce?
The court will:
  • End the marriage.
  • Divide the marital property and debts (usually on a 50-50% basis).
  • Issue custody, visitation and child support orders for children of the marriage.
  • The wife can get her maiden or former name back as part of the divorce.
The court can also issue other orders such as for counseling, spousal maintenance, or protective orders.

Can we go back to court later and change the divorce order?
Generally, courts cannot change the order concerning property and debts after the divorce are completed. The court can sometimes change orders concerning child custody, visitation and child support.

What if my spouse is in the military?
You can file for a divorce if your spouse is in the military. However, it may take you longer to get the divorce finalized if the military spouse is on duty and is unavailable for court hearings. The Service members Civil Relief Act allows the military member to ask the court to delay court proceedings while the military member is unavailable due to military service.

Do I need an attorney to file a divorce?
It is best to have an attorney help you file a divorce. Some attorneys will handle your divorce without charging you a fee because the court can order your spouse to pay your attorney fees. If you don't know any attorneys who handle divorces, you can contact your local bar association to get the names of some attorneys who handle divorces. If you can’t get an attorney, you can file for a divorce on your own. You will have to follow the same rules an attorney has to follow.

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FREQUENTLY ASKED QUESTIONS ABOUT DIVORCE

My spouse doesn’t want the divorce. What if he won’t sign the papers?
You can get a divorce even if your spouse does not want it. You will have to tell the Court, in your petition and at the hearing(s), that your marriage has suffered an “irretrievable breakdown.” This means that you cannot fix the problems in your marriage. In Kentucky, this is a reason for divorce and your spouse does not have to agree.

My spouse filed for divorce, but I do not want a divorce. What can I do to stop it?
You really cannot stop the divorce. You can ask the court to order counseling for you and your spouse, but the court is not required to do this.

Since I separated from my spouse, I have no money. Where can I get help?
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 Kentucky Cabinet for Health and Family Services.

If you have children, your local county prosecutor's office may be able to help you get a child support order. Generally, you can get a child support order before you have filed for divorce. You can call your local county prosecutor's office, child support division to ask for help getting a child support order.

My spouse has been violent in the past, or, may be violent when I file for divorce. How can I protect myself?
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 online.

You may want to contact your local domestic violence shelter to find out other ways to protect your safety.

When can a spouse get maintenance (alimony)?
The Court can order temporary maintenance at the provisional hearing, and can order maintenance at the final hearing. The court can consider how long it might take the spouse receiving maintenance to be able to earn an adequate income. The court can also order maintenance if the spouse is physically or mentally incapacitated, or is taking care of a child who is incapacitated.

What if the non-custodial parent fails to pay the court-ordered support?
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.

What if I can’t find my spouse?
If you do not know where your spouse is located, and have no reasonable means of finding out where your spouse is located, you can file a motion to appoint a warning order attorney. A warning order attorney is a practicing member of the Kentucky Bar. The warning order attorney is required to make diligent efforts to locate your spouse and inform him/her by mail that you have filed for a divorce. The warning order attorney has to report back to the Court within 50 days of his appointment with the result of his efforts to locate the defendant. You can ask the court to finalize your divorce against the defendant, even if the warning order attorney does not locate your spouse, only after the warning order attorney files his report (after the passage of 50 days from the date of appointment). Before you apply for a warning order attorney, you should check with the court clerk for your county to determine the proper fee.

My spouse filed for divorce two years ago, but I don't think it was ever final. What do I do now to get a divorce?
You should call the court where the divorce was filed previously to make sure it was dismissed. If it was not dismissed, you can ask that court to finalize the divorce. If the case was dismissed, you will have to file a new divorce.

My husband filed for divorce. Can I get my maiden name back as part of the divorce?
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. If your name changes because of divorce, be sure to change your name on your Social Security card also. See this page from the Social Security Administration for more information.

This divorce is going to turn my life upside down for a little while (or, is disrupting my children’s lives). What can I do to make it easier to get through it?
You can get counseling for yourself and your children to support you during this difficult time. This is especially important if there was domestic violence in your marriage. Also, the divorce education classes, called Families in Transition, can prove very helpful in assisting your children through the process of the divorce.

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HOW PROPERTY AND DEBTS ARE DIVIDED IN A DIVORCE

I want to get a divorce. How will the court divide our property?
The court will generally divide the marital property in half, and each spouse will get one half of the total property. This doesn’t mean each item will be split in half; one spouse might get the car and the other spouse might get the furniture.

The court can give one spouse more property than the other spouse if the court has a good reason to do so.

What is marital property?
In general, all property owned by either spouse is marital property. It can be property one of you got before or after you were married. It includes all kinds of property: personal property, homes and land, bank accounts, retirement accounts, etc.

I bought a car after I filed for divorce; is this car going to be “marital property?”
No. After the divorce is filed, things you or your spouse buy are not considered marital property.

When might a court give one spouse more property than the other spouse?
The court can consider many factors when making this decision, including:
  • The contribution of each spouse to the property.
  • Whether one spouse got the property before the marriage or by inheritance or gift.
  • The economic circumstances of each spouse at the time of the divorce.
  • Whether the spouse who is getting custody of the children should stay in the marital home.
  • The conduct of the parties related to the property (for example, has one spouse destroyed or wasted property).
  • The earnings or earnings ability of each of the parties.
I owned my house before I got married. Will my spouse get half of the house if we divorce?
Maybe. All property of the husband and wife is considered “marital property.” This means that even property brought into the marriage by one person becomes marital property that will be split in half in a divorce.

However, the court does not have to give each spouse one half of the property. If one spouse owned the house before the marriage, and the other spouse has not contributed to the house (such as making payments or repairs), the court might decide that the house should not be split between the two spouses.

What if my husband and I agree on dividing the property, but it is not split half and half. Will the court allow this?
Yes, the court will probably approve your agreement. The court will generally approve an agreement on property settlement, even if it is not an even split. However, you may want to state in your agreement the reason why the two of you agree to an uneven split of the property.

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WHAT HAPPENS IN A DIVORCE IF SOMEONE HAS A PENSION?

Trying to determine how to divide a pension can be very involved. It is best to seek the help of an attorney if you or your spouse are seeking a divorce and either of you has a pension.

How does the Court decide who gets what in a divorce?
When a couple files a request with the Court for a divorce, the Court will divide the "marital estate". This will include all assets and debts the couple had on the day the Petition for Dissolution was filed. To be a part of the marital estate, someone in the marriage must have a "present and vested interest" in the asset on the day the divorce was filed.

What is a present and vested interest?
If a person has earned a present right to the asset that cannot be taken away, then the asset is considered vested. The term present right means that even if you do not have the asset now, you are promised the asset and no one can take it away.

This rule applies to pensions. For example, Joe has worked at the ABC Corporation for ten years and is a participant in the company pension plan. On the day Joe files for divorce, Joe leaves ABC for another job. The rules of the ABC Corporation pension plan say that Joe will still be able to receive the ABC Corporation pension benefits when he reaches retirement age. The ABC Corporation pension would be considered vested and it would be part of the marital estate to be divided. Even though Joe was not receiving the pension on the day the divorce petition was filed and he stopped working for the ABC Corporation, the rules of the ABC pension plan said that even if Joe left the company he still gets the pension. Joe earned a present right to the pension that could not be taken away. Joe has a vested interest in the pension.

Are there different types of pensions?
There are two main types of pensions: defined benefit plans and defined contribution plans.

What is a defined benefit plan?
A defined benefit plan is one where the employer agrees to pay a certain benefit to the employee based upon a number of things including how long the worker has been there and how much money the worker earns.

What is a defined contribution plan?
A defined contribution plan is one where the employer agrees to contribute a certain amount of money to the plan on an annual basis. An example of a defined a contribution plan is a 401k plan where both the worker and the employer might contribute to the account.

How does a Court divide a defined benefit pension during a divorce?
Often during a divorce, neither person is actually getting the pension yet. If the pension is a defined plan, there really is not a pot of money to divide. There is a promise to pay sometime in the future (when the person reaches retirement age). It becomes a pot of money only when the person with the vested interest can start receiving the pension.

If the pension is a defined benefit plan, the Court can order the pension money to be divided when the pension starts to be received. The pension will likely be taxable. A document called a Qualified Domestic Relations Order (QDRO, which sounds like "kwad-dro") can be filed. A QDRO will transfer the pension benefits to the ex-spouse who did not work for the company in a way that will not cause the other spouse to pay taxes on the transferred benefits. The ex-spouse who is receiving the pension benefits would have to pay the taxes on the money he or she receives.

How does a Court divide a defined contribution pension during a divorce?
A QDRO can be used to complete the same type of transfer with a 401k (or other defined contribution plan). In this situation, a specific amount of money is identified to go the ex-spouse. The ex-spouse gets to choose when to get the money. When the ex-spouse gets the money, the ex-spouse must pay the taxes on it. If the ex-spouse withdraws the money earlier than allowed by law, the ex-spouse may have to pay the penalties for the early withdrawal as well.

This article provided some general information about what happens if there is a pension when a couple files for divorce. It is important to talk with a lawyer or tax professional about your particular case.

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DIVORCE AND RESIDENCE

How long do I have to live in Kentucky to get a divorce in Kentucky?
Either you or your spouse must be a resident of Kentucky for at least 180 days, or approximately 6 months before you can file for a divorce in Kentucky. You cannot file for a divorce in Kentucky if neither of you has been a resident of Kentucky for at least 6 months. Also, either you or your spouse should be a resident of the Kentucky county where you plan to file the divorce. You can file in a county even if you have not lived there for at least 3 months, but if your spouse objects, the court could transfer or dismiss your divorce case.

What does it mean to be a “resident” of Kentucky?
Basically, you are a resident of Kentucky if you live here and intend that Kentucky is your home. Some evidence of residency in Kentucky would be if you are registered to vote in Kentucky, if you have an Kentucky driver’s license, or if you pay state taxes in Kentucky.
If you or your spouse are stationed at a United States military installation in Kentucky for at least 6 months, you could file a divorce in Kentucky even though neither of you would technically be a resident of Kentucky.

I haven’t lived in Kentucky for 6 months yet, and my spouse lives in Ohio. Can I get a divorce in Kentucky?
You cannot file a divorce in Kentucky until you (or your spouse) have lived here for 6 months. You might be able to file a divorce in the state where your spouse lives; you will have to check the laws of that state. Keep in mind, however, that if you file for divorce in another state, you will need to go to that state for court hearings. You may want to wait until you have been a resident of Kentucky for 180 days and then you can file for divorce in Kentucky.

If I haven’t lived in Kentucky for 6 months yet, what can I do to get child support and protection from my spouse?
If you can’t file for a divorce yet because neither you nor your spouse have lived in Kentucky for at least 6 months, you could still get a child support order. Contact your local county prosecutor’s office for help with this. You can also get an Order of Protection if you are afraid your spouse will hurt you or your children. For information about an Order of Protection, go to information on protective orders.

My spouse and I were married in another state. Can we get a divorce in Kentucky?
Yes, as long as you or your spouse have lived in Kentucky for at least 180 days. It does not matter where you were married.

I have lived in Kentucky for a year, but my spouse has never lived in Kentucky. Can I get a divorce in Kentucky?
Yes, you can get a divorce in Kentucky as long as you have lived here for at least 6 months. HOWEVER, if your spouse has never lived in Kentucky, the Kentucky court will not be able to divide the marital property or debts. The Kentucky court can grant the divorce, and may be able to issue custody and child support orders, and that is all it can do.

My spouse and I were married in Kentucky and I still live here, but my spouse has moved to a different state. Can we get a divorce in Kentucky?
Yes. You can file for a divorce in Kentucky as long as you have lived in Kentucky for at least 6 months. As long as your spouse lived in Kentucky sometime during your marriage, the Kentucky court will be able to grant the divorce and divide the marital property and debts.

I had lived in Kentucky for a year when I filed my divorce, but now I have moved to Ohio. Can I finish my divorce in Kentucky?
Yes. If you move out of Kentucky after you file the divorce, the Kentucky court can still finalize the divorce. As long as you or your spouse have lived in Kentucky for at least 180 days at the time you file the divorce, it does not matter if you or your spouse move after the divorce was filed.

Can a creditor come after me for my spouse's debts?
Usually, a person is responsible only for his or her own debts. So if you did not sign the contract or loan agreement for your spouse’s debt, you usually would not have to pay that debt. However, if both you and your spouse signed for the debt, then the creditor can usually come after either of you to get payment.

Am I ever responsible for my spouse’s debt if I didn’t sign for the debt?
Sometimes, you can be liable for your spouse’s debts even if you did not sign the contract or loan. This can happen only for “necessary” items, such as food, medical care, etc. The creditor can come after you for payment of these items only if your spouse doesn’t have enough money to pay the debt and you do have enough money to pay the debt.

For example, assume the wife has medical problems and has to go to the hospital emergency room. Assume she can’t pay the medical bills for this visit. If her husband does have enough money to pay these bills, the creditor can come after him for payment of these medical bills even if the husband did not sign anything agreeing to be responsible for the emergency room bills.

The creditor first has to try to get the money from the spouse who actually received the goods or services (such as medical care). If the creditor cannot collect from that spouse, the creditor can try to get payment from the other spouse if the goods or services were “necessary items.”

We have been separated for ten years, but we are not divorced. Can his creditors still come after me for payment of his necessary items?
Yes. You are still legally married and the creditor could come after you for his debts for necessary expenses, such as medical care, during this separation. (However, if the creditor takes you to court for payment of these expenses, the Court may consider the fact that you have been separated for so long when deciding whether you should have to pay for his necessary items if he can’t pay).

If you believe he is getting a lot of debt for these types of items, you may want to file a divorce. Once you are divorced, you would not be responsible to his creditors for payment of his debts, even for necessary items.

My ex-wife and I were divorced last year. She was supposed to pay our credit card bill. She didn’t pay, and the creditor is coming after me. Do I have to pay the creditor?
If this was a joint debt (the credit card had both you and your ex-wife on the debt), then you may have to pay the creditor if your ex-wife does not pay. If your ex-wife was ordered in the divorce to pay this debt, you still may have to pay the debt if your ex-wife does not pay. However, you can then go back to the divorce court and ask the court to order your ex-wife to reimburse you for what you paid out on this debt.

The creditor does not really care what the divorce order says about who was supposed to pay the debt. If both your names were on the debt, the creditor could come after either of you. Then you would need to go back to the divorce court to get reimbursed from your ex-wife.

You can show the creditor the divorce order that says your ex-wife is supposed to pay, and some creditors may back off. However, the creditor does not have to back off, and can seek payment from you for joint debts.

If the credit card was in her name only, and you never signed to be responsible for that credit card, the creditor can come after you only if the charges were for her necessary items while you were still married to her, as discussed above. You could still go back to the divorce court to ask for reimbursement from your ex-wife if she was ordered to pay this debt.

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FILING A DIVORCE ON YOUR OWN

Do I have to have an attorney to file a divorce?
No, you do not have to have an attorney to file a divorce, but it would be helpful. It would be easier if you have an attorney, because the attorney is familiar with the divorce laws and with the courts. However, there is no requirement that you have an attorney to file a divorce, and if you cannot get an attorney, you can file the divorce on your own. You will need to follow the rules an attorney would need to follow.

Are there any circumstances in which I should not file a divorce on my own?
Yes, there are some circumstances when you should NOT file the divorce on your own.
  • If either you or your spouse has a pension, then you should get an attorney to file your divorce. Dividing a pension is complicated, and you will need an attorney's help.
  • If you have substantial amounts of property, especially real property such as a home or land, then you probably should not file a divorce on your own.
  • If you think you and your spouse are going to disagree about custody of your children, you may not want to file a divorce on your own.
How can I file the divorce on my own?
Here are the basic (very simplified) steps for filing a divorce:
  • Draft the divorce petition and other necessary papers.
  • File the divorce petition and other documents in court.
  • Your spouse must either sign an agreement and a waiver of service, or receive proper service.
  • Finalize the divorce, either by reaching an agreement with your spouse or by asking the court to schedule a final hearing.
Where do I file my divorce?
You can file a divorce in Kentucky if you or your spouse has lived in Kentucky for the past six months. Typically, you should file the divorce in the county where you live. If you file in a county where neither you nor your spouse lives, your spouse can object and ask the case to be transferred to a county where one of you resides. The court clerk will place the divorce in the appropriate court.

What does it mean to file for divorce?
When you file for divorce, you are asking the court to end your marriage. The court will divide the property and debts. If you and your spouse have children, the court will issue custody, visitation and child support orders. A divorce is also called “dissolution of marriage.”

What do I have to prove to get a divorce?
You have to prove there has been an “irretrievable breakdown” of your marriage. This means that there is no chance you and your spouse can stay married. You do not have to prove that you or your spouse did anything wrong. But you do have to prove that you or your spouse has lived in Kentucky for the last six months.

What happens when I file for divorce?
There is a filing fee. If you cannot afford to pay the fee, you can ask the court to let you file a divorce without paying the fee. The court will then decide whether you can afford to pay the filing fee or not. Shortly after you file for divorce the court will often have a hearing. At this hearing, the court will issue temporary orders concerning children, property, debts or anything else that cannot wait until the final hearing. At that hearing, the court will issue final orders concerning children, property, and debts of the marriage.

How do I finalize the divorce?
If you and your spouse agree on everything, you can give the agreement to the court and the court will finalize the divorce. You do not have to go to court for a hearing if you and your spouse has an agreement. An attorney can help with the proper paperwork.
If you and your spouse do not agree, the court will have a final hearing. At the hearing, both you and your spouse (and maybe other witnesses) will tell the court what you each should have out of the divorce. The court will then grant the divorce, and issue final orders concerning any children from the marriage, and the property and debts of the marriage. The wife can also ask that her maiden name (or other former name) be given back to her.

How will our property be divided?
In general, the court will divide the property evenly between the two spouses. However, the court may give one spouse more property than the other spouse if the court has good reasons to do this. The court can look at several factors, including:
  1. Which spouse provided the money for the property;
  2. Whether the property was given as a gift to one of the spouses;
  3. The current financial situation of each spouse; and
  4. The earnings or earnings ability of each spouse.
How will the court decide custody and visitation?
Both the husband and wife have equal rights to custody of the children. The court will determine what is in the best interests of the children. The court can consider:
  1. The age and sex of each child;
  2. The wishes of the children and the parents;
  3. The relationships among the children, their parents and other significant people;
  4. The children’s adjustment to their home, school and community;
  5. The physical and mental health of the children and parents; and
  6. Evidence of a pattern of domestic abuse.
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Reviewed February 2009