legal FYI

1.

Q.

Can maintenance be awarded in Kentucky?

A.

Yes.  KRS 403.160 and 403.200 allow the court to award temporary maintenance and either permanent maintenance or maintenance for a certain number of years after hearing evidence relating to the requesting party’s needs.

2.

Q.

What type of evidence is presented that would be used by the court to determine whether I would receive maintenance?

A.

Under KRS 403.160 and 403.200 the criteria in which a court is allowed to award maintenance is spelled out.  The court would take into consideration the financial needs of the parties, their accustomed standard of living, the current employment income (and other earnings) of the parties, their earning abilities, their debts, their reasonable living expenses and each party's legal support obligations -- for each other, for a former spouse, for their minor children and for other minor children of only one of the parties.

3.

Q.

Can my spouse successfully bar me from getting maintenance if I've had an extra-marital affair?

A.

Kentucky is a no fault state and the court can’t use adultery to determine whether a party is entitled to an award of maintenance but it may be considered in determining the amount.

4.

Q.

Does Kentucky recognize marital misconduct?

A.

Not generally.  As previously stated, the court may use marital misconduct in a determination of the amount of maintenance.  

5.

Q.

If there has been some type of marital misconduct when does it have to occur?

A.

This misconduct, in order to be considered, must occur at or before the date of separation of the parties.  It goes to demonstrating the irretrievable breakdown of the parties’ marriage. 

6.

Q.

If one party is guilty of marital misconduct, is the other party’s conduct taken into consideration?

A.

Being a no fault state it is within the court’s discretion to determine the relevance of both parties behavior in determining the amount of maintenance.

7.

Q.

After a determination by the court or an agreement is reached, when does maintenance begin and how long does it last?

A.

After the court has made a determination or an agreement has been reached a date for maintenance to begin is usually incorporated into the pleading.

There are several criteria the court must use in determining the length a spouse will pay maintenance to the other.  Some of them are:

• The financial resources of the party seeking maintenance; employability if not working;
• The duration of the marriage;
• The standard of living established during the marriage;

8.

Q.

Must "marital misconduct" take place to obtain an award of maintenance?

A.

• No.  As stated above there is certain criteria the court must take into account in order for an award of maintenance.

9.

Q.

How maintenance is usually paid?

A.

The most common way maintenance is paid is once a month.  There are a number of factors to be considered when negotiating when and how maintenance is paid.  A party should seek advice from their tax preparer when deterring how the maintenance should be paid.

10.

Q.

When does maintenance terminate?

A.

• Depending on the agreement reached by the parties or the duration the court ordered a party to pay.

11.

Q.

What is cohabitation?

A.

The law defines cohabitation as two adults living together continuously in a private heterosexual or homosexual relationship.

12.

Q.

Are there any other ways to keep from paying maintenance?

A.

If the person seeking maintenance does not make a claim asking for maintenance in the petition or amend their petition to include a claim for maintenance the issue may not be raised.  The second bar is found when there has been a waiver of maintenance in an agreement between the parties. A separation agreement can contain a waiver of maintenance, and so can prenuptial/ante nuptial agreements. When a party gives up a right to maintenance, she or he may not thereafter go back and retrieve the lost support right.

13.

Q.

What is a dependent spouse?

A.

A dependent spouse is one who is actually and substantially dependent upon the other spouse for support or who is actually in need of support from the other spouse.

14.

Q.

How is the amount of maintenance determined?

A.

The amount of maintenance is up to the judge.  The parties submit to the court a detailed summary of their living expenses along with income information.  The are some software packages that allow a judge to input this data which gives them a base line to go by.

Most cases there may be an award of limited-term alimony.  There is usually language within the pleading that allows the court to review the continuation or change in amount based upon a motion alleging grounds for modification, namely, a substantial change of circumstances since the date of the original court order. The award is completely in the discretion of the court, subject to the "factors" listed above for maintenance.

15.

Q.

How are  taxes considered in deciding the amount of maintenance?

A.

As previously stated a party should consult with their tax preparer before entering in an agreement detailing the amount and how they will receive it.  Generally speaking, maintenance is taxable to the payee and deductible by the payor. This is an important factor to remember when calculating maintenance in negotiations.  For example, if Mrs. Jones needs, for example, $2000 per month to meet the "financial deficit" she is experiencing, then she may need about $2500 of taxable maintenance in order to net out $2000 of post-tax support. By the same token, if Mr. Jones is able to pay $2000 per month in maintenance based on his income and reasonable monthly needs, this is $2000 after taxes, and the real amount of maintenance he should be able to afford might very well be about $2500 with the tax break he gets by deducting this amount from his income.