Divorce

By statute, Kentucky is a “no-fault” divorce state. This means that either spouse may request a divorce by proving to the court that the marriage is “irretrievably broken.” As a result, in seeking a divorce you do not have to prove that your spouse has committed adultery, domestic violence, spousal abuse or otherwise acted in a way justifying dissolution of the marriage. Before the Judge can dissolve your marriage, all he or she must know that you or you and your spouse believe the marriage is irretrievably broken.

Fault will also not play a part in the division of marital property. In most cases, unless children are involved, the Judge could not care less why you want a divorce. And when children are involved, the Judge will only want or need to know if the children are being negatively affected.

In Kentucky, as in most states, if you are considering a divorce, you should first think about your safety and well-being as well as that of any minor children. If there is a history or threat of domestic violence or spousal abuse, you need to take steps to protect yourself and your children before any harm occurs. If necessary, you may seek protection from a court through Emergency Protective Orders and Domestic Violence Orders. These Orders can direct your spouse to stay away from you and it gives law enforcement the right to take action if the Orders are violated.

Next, you should focus on being prepared before initiating divorce proceedings. This includes gathering relevant documents and information to support your claim and familiarizing yourself with all marital assets and liabilities. Starting to collect documents such as credit card statements, mortgage information, bank statements, income tax returns, pay stubs, investment accounts information, and retirement accounts early will make the process much easier. Often spouses do not gather this information until their circumstance becomes desperate and by that time the important documents and information may be difficult to access or may even “disappear.”

Other important steps, depending on your circumstances, may include opening a P.O. Box so you can ensure you are going to receive all important mail during the divorce if you are still living in the same home with your spouse. Additionally, changing all passwords for your individual computer, bank accounts, e-mails, etc., to something that your spouse does not know and cannot guess can be very important to protect you and your confidential information. Also, changing your beneficiaries on insurance policies and modifying your Will to reflect your new intended beneficiaries can be done easily and can make a huge difference if you were to die before the divorce is finalized.

Moreover, preparation also involves having available the funds necessary to pay a divorce attorney’s retainer. You will also need funds to live on during the divorce. I usually recommend that people going through a divorce open a separate checking account that your spouse will not have access to and withdraw one-half of the proceeds from the joint account to give you something to live on. Although temporary orders can be put into place for child support and spousal maintenance during the pendency of the divorce, there is often a lapse in time before these requests can be heard by the Court and you actually receive the money.

Finally, before taking steps toward a divorce, make sure you have a support network of family and friends in place to help you during the divorce proceedings and get legal advice from an experienced Kentucky family law or divorce attorney. The Law Office of Jessica Fox Flinn, PLLC would welcome the opportunity to discuss your unique situation.

Often, clients facing divorce or custody actions are confused about the difference between who will have “custody” of the minor children and where the minor children will actually reside from day to day. 

After determining custody, as discussed above, the next job of the court is to determine a “parenting time” schedule or where or with which parent the children will reside on which days.  The area of parenting time changed drastically in recent years when the Kentucky State Legislature modified the child custody laws to make 50/50 or equal parenting time presumed to be in the children’s “best interest.”  What this means is that the court must begin every custody determination assuming that the children should spend approximately equal time with each parent.  If a parent does not agree with this plan, the disputing parent has the burden to prove to the court why this is not appropriate and why a different parenting time schedule would be best for the children. Although not an exclusive list, some reasons that a court may rebut the presumption of 50/50 could include:

• Logistical Issues- For example, one parent lives out of state or too far to get the child to school on their timesharing days;
• Work Schedules- such as a parent works the night shift and has not appropriate person to care for the child;
• Substances Abuse Issues or History of Substances Abuse;
• Domestic Violence History or Anger Issues;
• Mental Health Issues;
• Special Needs of Child;
• Documented inability to co-parent.

Contact The Law Office of Jessica Fox Flinn, PLLC to learn more division of parenting time and about possible parenting time schedules. We always encourage families to work together to make a parenting time schedule that will work best for all involved. Although the judges making these decisions do their best, the parents are always the best people to make important decisions like this about your children’s lives. However, when an agreement can’t be reached and a court hearing is necessary, you need to be prepared with experienced legal counsel to present your case.

In Kentucky, child support is among the few areas of family law that is determined according to strict statutory guidelines. In calculating child support, the court looks at the total available income of both spouses, then determines the percentage each spouse’s share bears to the total income of the parents. The percentages are then multiplied by the child support guideline amount, thereby determining the amount for which each spouse is responsible. In addition to basic child support, the court will also determine responsibility for medical and dental care, day care and for special expenses applicable to the couples’ minor children.

The Commonwealth of Kentucky is serious about the collection of child support. When it is ordered, you must pay it and you must pay it on time. Failure to pay child support as ordered can lead to contempt of court charges, criminal charges and even jail time.

The award of maintenance, also called “spousal support” or “alimony” is determined in the court’s discretion taking into account certain specifically enumerated factors set forth by statute. Some of the listed factors include the standard of living established during the marriage, the duration of the marriage, the age and health condition of the parties, the financial resources available to each party, the time necessary for either party to acquire sufficient education or training to enable the party find appropriate employment and all sources of income available to each party. Maintenance may be either temporary, permanent, or for a specific amount of time.

In order to assure that the parties and the court are fully informed on all issues regarding assets, liabilities and income, the Kentucky Family Law Rules of Procedure set forth requirements for mandatory disclosure. In a divorce proceeding, the parties are each required to complete a financial affidavit which sets forth income, expenses, assets, and liabilities. This document often plays a major role in the dissolution proceeding and each party should prepare it under the careful advice and counsel of an experienced divorce attorney. The parties are also required to exchange other financial information including past tax returns, pay-stubs, deeds, loan applications, financial statements, bank account and brokerage statements, pension plan statements, insurance certificates, and documents supporting a special equity claim or a claim that property is nonmarital. Specific time limits are set for disclosing this information so it is important to contact an experienced family law attorney as soon as possible for assistance.

The court always holds paramount what it considers to be in the best interests of children. You must prove that you are what is in the best interest of your child. If you have been and are currently involved in your children's lives, it's important to document your level of commitment and involvement to the court. It is also important to demonstrate how well your child has been doing or will do while in your care. Collecting birthday cards, vacation pictures, little league or school involvement documents, school attendance records and grade reports, as well medical or insurance bills, among other things, demonstrate how deeply you are involved in raising your children. Of course, it is also important that you can prove you are financially able to provide for your child and your parenting is not hindered by anything negative such as drug use or domestic violence. Regardless of how much you may love or care for your children, you must be prepared to document or prove many facts to the court's satisfaction.

ADVANCED WARNING: Take down all social networking sites! You have no idea how many times “misinterpreted” pictures and “just for fun” language comes back to bite people in custody battles.

If one spouse wants a divorce, there is very little that the other spouse can do to stop it. The spouse that does not want the divorce can petition the court to order a reconciliation conference. This is basically one session of marriage counseling that both parties are required to attend. After attending that session, the spouse is relieved of further required efforts to reconcile and can continue with the divorce if they choose to.