General Divorce Questions & The Divorce Process
1. How do I know when it’s time to get a divorce?
While every couple is unique, there are some common signs that your relationship no longer meets your needs. For example:
- Your goals, values, and needs have changed while your spouses remained the same (or vice-versa)
- You find it increasingly difficult to compromise
- All the respect seems to have disappeared from the relationship.
- Most conversations, no matter how trivial, evolve into an argument
- One or both of you constantly bring up hurtful past events and can’t seem to let go
- You no longer feel attracted to one another, and one or both of you may have had an affair
If these relationship problems continue after you have sought help from counselors or therapists (separately and as a couple), it may be time to move on.
2. What if my spouse wants a divorce even though I don’t?
You don’t want a divorce, but your spouse does and refuses to change their mind. Although this is a painful realization, the truth is that Kentucky is like many states in that no-fault divorce is allowed. Your spouse does not have to give any reason except irreconcilable differences.
Perhaps you feel that the marriage can be saved, or that you should stay together for the sake of the children. Unfortunately, your spouse can obtain a divorce whether you agree or not, so your best course of action is to contact a divorce attorney who will protect your rights and those of your children.
3. How long will it take to get a divorce in Kentucky?
The divorce timeline in Kentucky depends on your circumstances. At the very least, you must have been separated for 60 days before the court will issue a decree dissolving the marriage. If one or both of you are contesting any aspects of the divorce, such as spousal maintenance or child custody, the process will take longer, as these issues will have to be litigated and decided by a judge.
There may also be a delay if the wife is pregnant. The law states that if the wife is pregnant at the time the Petition for Dissolution of Marriage is filed, the court may continue the case until the pregnancy ends.
In addition, if one spouse does not want the divorce and denies that the marriage is irretrievably broken, the court must make a finding on the matter. If there is any doubt, they may continue the case for 30 to 60 days and request that you participate in conciliation to see if the marriage can be salvaged.
4. How long does an uncontested divorce take in Kentucky?
To file for an uncontested dissolution of marriage in Kentucky, the petitioner (the spouse who does the filing) must have lived in the state for at least 180 days. If this requirement is satisfied, you and your spouse must be separated for 60 days (meaning that you have not had sexual relations) before it can be finalized. If you have children under the age of 18, the divorce decree will not be entered until 60 days after the Petition for Dissolution of Marriage was served on the respondent.
5. What are the steps in the process of a divorce?
If your divorce is uncontested, the process is relatively straightforward. After you and your spouse agree on child custody and support, spousal maintenance, and how the marital state should be divided, one of you prepares a Petition for Dissolution of Marriage and files it with the court, along with the marital settlement agreement. The other spouse will receive copies of this paperwork.
After the petition is filed, both of you may have to attend a court hearing, during which the judge will verify that the paperwork is correct, possibly ask you some questions, and then enter your Decree of Dissolution of Marriage. Many decrees are entered without the parties having to attend court.
6. What are the roles of my attorney and the legal staff?
When you hire a divorce attorney, their job is to protect your best interests during what is generally an emotionally and psychologically challenging time. They will treat you with empathy and respect while assisting you with the following:
- Preparing and filing the Petition for Dissolution of Marriage or responding to your spouse’s petition
- Collecting, reviewing and accounting of marital assets and liabilities
- Identifying separate vs. marital property
- Reviewing a prenuptial or postnuptial agreement to determine how it may affect property division
- Negotiating a marital settlement agreement
- Assessing whether you may be required to pay spousal maintenance or entitled to receive it
- Putting together a parenting plan that is in the best interests of your children
- Acting as a go-between for you and your spouse if personal contact is inadvisable
- Representing you in court to resolve any disputes regarding child custody, spousal and/or child support, and property division
Your divorce attorney’s legal staff provide additional support by conducting any necessary research, drafting documents, and answering your questions when the attorney is with another client or otherwise unavailable.
7. What is my role as the client?
As the client, you are obligated to be truthful with your attorney, respond to all requests for information in a timely manner, and attend all negotiation sessions and legal proceedings. Even if these duties are not expressly stated in the retainer agreement, they are an accepted part of the attorney-client relationship.
8. Can my attorney represent both me and my spouse?
No. Even if you and your spouse are in complete agreement on all key aspects of the divorce, you are still technically opposing parties in a legal matter and have competing interests. For this reason, a divorce attorney can’t ethically or legally represent you both.
9. What is “confidentiality”?
All private communications with your divorce attorney are protected by attorney-client privilege, meaning that they cannot reveal anything you say to them in confidence unless you give direct permission. This privilege does not, however, apply to anything you say that gives them a reason to believe that you intend to commit an act of fraud or a crime.
10. What is a “no-fault” divorce? What are the grounds for divorce in Kentucky?
No-Fault divorce does not require the petitioning spouse to prove that the other party did anything wrong. They simply have to assert that the marriage is irretrievably broken. Unlike many other states, Kentucky only recognizes no-fault divorce.
11. Are there separation requirements in Kentucky?
You and your spouse must have been separated for at least 60 days, which means that you do not have sexual relations although you may occupy the same home.
12. What is the waiting period for divorce in Kentucky?
Kentucky imposes a minimum waiting period of 60 days before a divorce can be finalized.
13. Is there a way to divorce without going to court?
With an uncontested divorce, you and your spouse do not have differences over child custody and support, spousal maintenance, or property division that need to be litigated, so there are no prolonged and expensive court appearances. It is possible to get the divorce decree entered without appearing in court.
14. Can you dismiss a divorce if you’ve changed your mind after filing for one?
Yes. If you change your mind after filing for divorce, you can withdraw your petition or ask the court to dismiss it.
15. Does adultery affect divorce proceedings?
No. Kentucky only recognizes no-fault divorces and rarely considers fault such as adultery in matters such as spousal maintenance or property division.
16. What if my former spouse is dragging out the divorce?
If your spouse is dragging out the divorce unreasonably, you and your attorney can file a motion to set a trial date. The court will then make the final decisions about the terms of the divorce. Depending on what county you live in, you may have to attempt mediation before local court rules permit a trial. Your divorce attorney can advise you accordingly.
17. When is a divorce considered finalized in Kentucky?
Your Kentucky divorce is considered finalized when the court enters a Decree of Dissolution of Marriage.
18. Are Kentucky divorces public record?
Yes, although you can only receive a certified copy of a divorce record if you were the petitioner or respondent or are the parent or child of either party.
19. What is the difference between legal separation and divorce?
Legal separation is like divorce in that you have to address issues like property division, spousal maintenance, child custody, and child support, but you are still legally married to your spouse although you live separately.
20. What is the difference between divorce and annulment?
Divorce dissolves a marriage that is legally valid while annulment declares a legally invalid marriage null and void. From a legal perspective, an annulled marriage never existed.
21. How do you modify a divorce agreement?
If you or your spouse experience a significant change in your life circumstances or the needs of your children change, it may justify a modification of the original divorce agreement. With child support or custody orders, such changes could include:
- Job loss
- Illness or disability
- Relocation
With child support orders, the standard is a “material change in circumstances,” which is generally a 15% deviation from the support guidelines. If you are the parent receiving the support payments, you may go to the Child Support Division of the local county attorney’s office for help. If you are the paying parent, you may file a petition to change the child support order in the same court that issued the original order.
22. Can you change your last name before the divorce is finalized?
No, but the court can restore a divorced woman’s former name when it issues the Decree of Dissolution of Marriage. You can then use a certified copy of the decree to change your name with government agencies.
23. Can you divorce without an attorney?
Legally, yes. However, the decisions you make during settlement negotiations or at trial can have outcomes that you may not want or have intended. An experienced Kentucky divorce attorney can help you foresee these consequences and prevent them.
24. What is the average cost of divorce in Kentucky?
Every divorce case is different. Lawyers.com used survey results to estimate the average cost of divorce at $10,200, but simple uncontested divorces by couples without children will cost significantly less. Divorces that involve child custody or support issues may cost around 50% more than the average and disputes over spousal maintenance and property division can increase costs due to the litigation involved.
Property Questions
25. What does it mean that Kentucky is an “equitable distribution state”?
When you divorce and cannot agree on how marital property should be divided, courts in an equitable distribution state will split everything in a manner it deems fair and equitable. This division applies to all property acquired during the marriage and does not generally include:
- Property that each spouse owned before marriage
- Assets that each spouse received personally as a gift or inheritance from a third party
- Property identified as separate in a fair written agreement
Other than the assumption that separate property will remain yours unless it was commingled with marital property, there is no set formula determining who gets what.
26. How does the judge divide up our property?
When dividing marital property in Kentucky, a judge will try to be as equal as possible, but mitigating factors may result in a split that is less than 50-50. These factors can include:
- The duration of the marriage
- The couple’s standard of living
- The current financial situation of both spouses
- Each spouse’s income
- Each party’s physical and emotional health
- Each party’s financial contributions during the marriage
The court will then calculate the financial value of all marital property and distribute it with the goal of being as fair as possible.
27. How is debt divided in a divorce?
Courts will take various factors into account when dividing marital debt, such as:
- Each spouse’s liabilities and debts
- Their economic situation
- The reason why the debt was incurred (for example, one spouse will not likely be held accountable for the other’s recklessly-acquired gambling debts)
28. Who gets to keep the house in a Kentucky divorce?
There is no legal standard indicating which spouse keeps the marital home, but if you and your spouse cannot agree, the court will make that decision after taking certain factors into account. For example, if you will have primary custody of the children, a judge may conclude that it is in their best interests to stay in familiar surroundings and award the home to you while giving your spouse marital property of comparable value.
29. Who gets to keep the pets in a Kentucky divorce?
Although many pets are regarded by their owners as cherished members of the family, Kentucky law holds that animals are personal property and not subject to the same custody and support arrangements as a child. Nonetheless, the judicial perspective is changing and more judges take the best interests of the animal into account when making a decision.
30. What Happens to The Family Business in A Divorce?
When a divorcing couple owns a business together, its value is subject to an equitable distribution like all other marital property. If you cannot agree on how the business should be divided, potential court-ordered outcomes include:
- Selling it and dividing the proceeds
- Awarding one spouse the business and giving the other an item of marital property with equal value
- The spouse who wants to keep the business buying out the other one
31. Is There A Way to Protect A Business from Divorce?
People who either own a business prior to the marriage or start one afterward can protect their investment with a prenuptial or postnuptial agreement that confirms their ownership of the company if the couple divorces. To be legally valid, this agreement must be fair to the other spouse, who may still be entitled to share in the proceeds if the company increases in value during the marriage.
Spousal Support Questions
32. Does Kentucky have alimony?
Yes, although in Kentucky it is known as maintenance.
33. How is eligibility for spousal support determined?
The basic eligibility requirements to receive maintenance in Kentucky are:
- Inability to support oneself financially through gainful employment. This may occur if the spouse has custody of a child whose needs prevent them from working outside the home.
- Lack of marital assets after division to meet the spouse’s reasonable needs.
34. How is spousal support calculated?
If you are eligible for maintenance, the court will consider several factors when establishing the payment amounts. They include:
- Your age and health
- How long you were married
- Your financial need
- Your income, if any
- Any circumstances that prevent you from working full-time
- The value of your assets
- How long it will take you to receive the training and education needed to pursue sufficient employment
- Your spouse’s ability to pay
Unlike child support, there is no formula for calculating maintenance in Kentucky.
35. Is there any way to receive financial support during the divorce?
Yes. You may apply for temporary maintenance to meet your reasonable financial needs while the dissolution of marriage is in progress. You must submit a list of your expenses and assets to the court and, if deemed eligible, you will receive temporary maintenance payments that terminate when the dissolution is finalized.
36. How does the court determine the duration of spousal support?
Courts determine the duration of spousal maintenance using the same factors that affect the payment amounts. They include:
- Your age and health
- How long you were married
- Your financial need
- Your income, if any
- Any circumstances that prevent you from working full-time
- The value of your assets
- How long it will take you to receive the training and education needed to pursue sufficient employment
- Your spouse’s ability to pay
The court will also decide whether to award you rehabilitative or permanent maintenance. Rehabilitative is the most common type: it is designed to give you time to acquire the training and education needed to obtain suitable employment. Although the common rule for duration is half the length of the marriage, it is typically limited to five years.
Permanent maintenance is comparatively rare and awarded only under the following circumstances:
- You were married for at least 10 years
- You don’t have an income or, if you do, it is significantly less than what your spouse earns and/or
- You have a medical condition prevents you from working
37. Can I still get medical insurance benefits from my spouse’s employer after a divorce?
No. Once the divorce is finalized, you can no longer be a dependent on your spouse’s health plan. Your options for maintaining health coverage include:
- Signing up for benefits through your employer (if available)
- Purchasing a policy
- Keeping the coverage through your former spouse’s plan but paying for it yourself via COBRA
38. Do I stop receiving spousal support if I get remarried?
Yes. Once you remarry, maintenance payments from your former spouse stop.
39. When should a spousal support agreement be modified?
Kentucky law allows a spousal maintenance agreement to be modified if one or both parties experience a substantial and continuous change in circumstances that makes the current order unconscionable. Examples include job loss or a debilitating illness.
Child Custody & Child Support Questions
40. What are the types of child custody in Kentucky?
There are two types of child custody in Kentucky:
- Legal, which refers to the ability to make key decisions for the child, such as where they go to school and what healthcare they receive
- Physical, which refers to where the child stays overnight.
Both types can be held by one parent or shared in a joint custody arrangement. In April 2018, Gov. Matt Bevin signed a bill that makes joint custody a default in Kentucky unless circumstances recommend otherwise, such as domestic violence committed by one parent against the other parent and/or the children.
41. How do you modify a child custody agreement in Kentucky?
In Kentucky, you cannot generally change a custody order for the first two years after it goes into effect unless there are compelling reasons to grant the change, such as the child being in imminent physical, mental, moral or emotional danger. You will have to file a petition to modify child custody in the same county circuit court where the original order was made.
42. What factors does the court consider for custody agreements?
Courts base their custody decisions on the best interests of the child. To arrive at an appropriate outcome, they consider factors such as:
- The wishes of the parents
- The custody arrangement desired by the child
- The child’s relationship with each parent
- The child’s relationship with any siblings in either parent’s care
- The physical and mental health of the child and the parents
- The ability of each parent to care for the child
- The child’s involvement at school and in the community
- Whether either parent has a history of domestic violence
If the child is under three years old, Kentucky courts will also consider applications from a de facto custodian, which is any person who has lived with the child for six months and been their primary caregiver and means of financial support. For children over three years, a de facto custodian must have lived with the child for at least one year. These parties can be given the same consideration as a child’s parents when determining a custody arrangement.
43. On average, who is more likely to get custody – the mother or the father?
At one time, courts expressed a strong preference for the mother when making custody decisions. Today, either parent has an equally valid claim to custody.
44. Do children have a say in child custody decisions?
Kentucky courts will consider the child’s preference when they appear to be mature enough to state a rational reason for their choice. While is no statutory guidelines regarding age, children aged 11 and older are generally regarded as being sufficiently mature. With younger children, the court will decide on a case-by-case basis whether their preference should be considered.
45. How is child custody modified if a former spouse moves out of state?
If you have custody of your children and want to move out of Kentucky for a legitimate reason such as pursuing employment, it impacts the visitation rights of the other parent.
You are required to provide notice to the other parent at least 60 days before the scheduled move date. If they agree to the move, their agreement must be filed with the court. If they don’t, you will need to petition the court for permission to relocate. If your petition is successful, the court will order appropriate changes to the custody arrangement and visitation schedule.
46. What is a temporary child custody order?
A temporary child custody order addresses the question of who the child lives with and who makes important decisions for them until the divorce is finalized and a permanent order can be made. Courts use the best interests of the child standard to determine what arrangement is appropriate.
47. When do courts order a child custody evaluation?
A court may order a child custody evaluation if divorcing or separating parents cannot agree on a custody arrangement. Evaluations can also be part of the process if one parent is seeking to modify an existing custody order. The goal is to determine what custody arrangement is in the best interests of the child.
48. What does a child custody evaluation entail?
A child custody evaluation is carried out by a neutral third party. In many instances a team of third parties is involved, such as a social worker, clinic psychologist, and family therapist. Assessments may include:
- Interviews with the parents, children, and other important adults, such as grandparents
- Psychological testing of the parent
- Observing each parent’s interactions with the children
- Interviews with relevant parties such as relatives, neighbors, and teachers
- Examining appropriate records
The evaluator(s) will use the information collected from these observations to create a report for the judge presiding over the case. The report details their findings and recommendations regarding custody.
49. How do courts determine the duration of child support?
Child support in Kentucky usually terminates when the child reaches 18, unless they are still in high school or have a significant physical or mental disability. If an 18-year-old is still in high school and unmarried, they are entitled to support until they turn 19 while a disabled child is entitled to support until they turn 21.
In some cases, the parents may state in their marital settlement agreement that they will extend their support obligation beyond these statutory limits. One common example is paying child support until the child graduates from college.
50. Can I get visitation rights for stepchildren?
Yes, in Kentucky stepparents can petition the court for visitation.