EQUITABLE DISTRIBUTION IN KENTUCKY
KRS 403.190 governs the disposition of property in Kentucky divorce situations. You are cautioned that this is a complex statute and its practical application is subject to judicial interpretation. Following are some frequently asked questions, the answers to which may be of assistance to you in evaluating your particular case.
- Q. Can I get my own divorce without an attorney?
A. Yes. There is no legal requirement that you retain counsel to represent you. We recommend that you do so, however, especially if there are custody issues, maintenance and child support claims, or property to be categorized and divided. Costly errors can easily be avoided with the expertise provided by legal professionals. - Q. Who pays for my lawyer?
A. You are contractually obligated to pay the fees of your attorney. It is within the court’s discretion, if certain criteria are met, to award some or all of a party’s legal expenses, but it is impossible to predict whether and in what amount such an award might be granted. - Q. What if my spouse won’t give me a divorce?
A. A divorce is granted by the court and the decision does not rest with your spouse. If you state that your marriage is irretrievably broken, the court will grant a divorce even if your spouse objects. Because Kentucky is a “no-fault” state, marital misconduct is not a consideration and no “grounds” for divorce are required. - Q. When is my divorce final?
A. Your divorce is final when the clerk of the court enters the Decree of Dissolution of Marriage in the official record. The divorce is not final when the judge signs the decree; it is final when the decree is entered into the record, which normally occurs within a few days after the judge signs the document. There is no waiting period after entry of a decree – the divorce is effective immediately. - Q. Can I resume the use of my maiden name at the time of divorce?
A. Yes. You may request restoration of your maiden name in your original filing papers, or by affidavit at any time before the decree is entered. If you do not request restoration of your maiden name during the divorce action, you can file a petition for change of name at any time in Probate Court for a nominal fee. - Q. How long do I have to be a resident of Kentucky to file a petition for divorce?
A. KRS 403.140 provides that one of the parties to a divorce, at the time the action was filed, must have been a resident of the state for 180 days immediately preceding the filing. - Q. Can a Kentucky judge order a property division at the time of divorce?
A. If the parties are unable to agree on the division of marital property, the judge will set a trial date. After hearing all the testimony and reviewing the evidence, the judge will divide the marital property in just proportions. An agreement entered into by the parties is usually preferable to a judicial ruling because the parties remain in control of the disposition of the marital estate. - Q. Is there any property the judge will not divide?
A. The judge will not divide separate or nonmarital property, which is defined as property acquired by either party before the marriage or acquired by gift or inheritance, even if it is later traded or exchanged for another asset. A party asserting that property is nonmarital has the burden of proof and must produce documentary evidence in support of the claim. - Q. How will the judge divide our property?
A. Kentucky is an equitable distribution jurisdiction, which means that property will be divided in just proportions after consideration of numerous factors. The judge may decide that fifty-fifty division is not equitable based upon the facts of your particular case. Marital fault is not a factor in equitable distribution. - Q. Can I get the judge to order my spouse to pay the fees of my attorney?
A. An award of attorney fees is made at the discretion of the judge. The statute requires the court to consider the parties’ respective financial situations. If one spouse has greater financial resources than the other, the judge may award fees to the party with fewer resources. The judge may award fees to either party if excessive legal expenses can be attributed to a lack of cooperation on the part of either spouse.
January, 2007
Diana L. Skaggs, is the President of the Kentucky Chapter of The American Academy of Matrimonial Lawyers. Practicing divorce law for more than twenty years, Diana was recognized by the Louisville Bar Association in 2006 as the family law practitioner of the year, for being on the forefront of new developments in the practice of family law, for her innovation in the field as well as her continued dedication to families, children and public service. To learn more about Kentucky Divorce Law and Diana L. Skaggs + Associates visit http://www.LouisvilleDivorce.com/legalfyi/.
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