Many times you will be nervous when meeting with your lawyer about the case, and you do not want to forget to address the questions that keep you up at night when dealing with a difficult family situation. It is important you remember what to ask so that you feel as comfortable with the situation as possible.

Unless you are filing for divorce, custody or child support for the first time, your lawyer will need to look over any prior documents in the family court case signed by the parties or the Judge to determine what the next steps should be.

You may want to bring any recent financial statements, including tax returns and pay stubs, so that your lawyer can assess any financial disparity between the parties and calculate support obligations. Be sure to bring any particular documents (such as a bank or credit card statement) that you have specific questions about.

You should maintain a physical or online calendar, not only for the purpose of keeping track of important events that occur with your spouse and/or children, but also to schedule future meetings with your lawyer and to keep track of mediation or court dates.

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Daviess Circuit Court

This decision concerns the prenuptial agreement between Karla Evelyn Gardner King (“Karla”) and her late husband, Randall E. King, M.D. (“Randall”). Upon Randall’s death, Karla filed a declaratory judgment action claiming their prenuptial agreement was invalid because she had not been made aware of the nature, extent, and value of Randall’s estate before signing the agreement, which also invalidated the agreement. The children of Randall (the “Kings”) challenged Karla. The Daviess County Circuit Court found Karla’s claim legitimate, ruling that the prenuptial agreement was void and invalid for lack of full disclosure of the extent and value of the parties’ assets prior to the execution. The Kings appealed, asking for a reversal of the trial court’s finding and requesting a modification of the standard for invalidating such an agreement on the grounds of nondisclosure by requiring an additional finding of deception, fraud, or material omission.

The Court of Appeals deemed no abuse of discretion or clear error in the trial court’s decision.  The Court detailed that, as a general rule, antenuptial agreements, are valid, enforceable, and favored in the law. Nevertheless, one particular caveat is that such agreements must satisfy the requirement of full disclosure, with the burden of proving this requirement placed on the party seeking to enforce the agreement. Here, the trial court found Karla’s testimony, in tandem with Randall’s former attorney, was credible in establishing that she was unaware of the character and full extent of Randall’s financial holdings. Notably, despite the agreement’s inclusion of a full disclosure provision, it was undisputed that Karla nor Randall provided disclosure documents to one another. Moreover, the trial court highlighted substantial evidence supporting that neither party took the agreement seriously, with both Karla and Randall making comments about not reading the agreement and signing it only moments before being married. 

The Court, giving due regard to of the trial court to judge the credibility of the witnesses, found no clear error. Additionally, the Court noted that it lacked the authority to add additional requirements to the legal standard, maintaining that deception, fraud, or material omission is not an essential element of finding a prenuptial agreement unenforceable on the grounds of nondisclosure. Thus, the Court affirmed the trial court.

Digested by K. Spencer Pierson

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First, KRS 403.170 prevents a Court from issuing a decree of dissolution “until  the  parties  have lived  apart  for  60  days.” Even if you are still living under the same roof, you may be considered separated for the purposes of this statute.  

Second, if you have minor children KRS 403.044 prevents the Court from hearing matters other than testimony on temporary motions until “sixty (60) days have  elapsed  from  the  date  of  service  of  summons,  the  appointment  of  a  warning  order attorney or the filing of an entry of appearance or a responsive pleading by the defendant, whichever occurs first.” If you have come to an agreement resolving all issues in your divorce, including custody and parenting time, very quickly this “waiting period” might come into play. Thus, the KRS 403.044 prevents a Court from issuing a decree of dissolution until 60 days have elapsed from the date the response to the petition was filed or date of service of a summons.

There are certain time restrictions on the divorce process in the Commonwealth of Kentucky. If you are interested in learning more about how these might impact your specific case, consider consulting with an attorney.

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The general rule in Kentucky is that student loan debt incurred during the marriage is the nonmarital debt of the party receiving the educational benefit associated with the loan, and the debt should be assigned to that party. Combs v. Ousley, 2007-CA-001552-MR, 2009 WL 276506, *3 (Ky. App. Feb. 6, 2009). To the extent that the proceeds of the loan were used to provide for family expenses, however, some portion of the debt may be marital debt. This is a fact-intensive inquiry, and it is important to discuss your unique circumstances with an experienced family law attorney.

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Once an EPO is issued, it will be served upon the other party and a hearing will be held, usually within fourteen (14) days. The purpose of the hearing is to determine whether a more permanent Domestic Violence Order (DVO) should be entered, after both sides have had an opportunity to present evidence. If, after the hearing, a judge finds that “domestic violence has occurred and may occur again,” it may grant a DVO.

Once granted, a DVO may remain in place for up to three (3) years and may be extended upon the request of the petitioner. An EPO or DVO may include children and may award temporary custody, temporary child support, and set a visitation schedule.

Unlike an EPO, which opens a legal action when filed, to obtain a civil restraining order, a person must be a party to a separate civil legal action, such as a divorce or child custody case. If such an action has not been filed, a civil restraining order cannot be obtained. While a civil restraining order may include some of the same conditions as a protective order, such as no contact, they do not provide the same protections.

Violations of an EPO or DVO may result in contempt of court or criminal charges. If a violation occurs, law enforcement may immediately arrest the offender without a warrant. Federal law also prevents Respondents subject to a DVO from legally purchasing, possessing, selling or disposing of firearms.

Violations of a civil restraining order do not have criminal penalties. This means that law enforcement cannot make an arrest upon violation. Violations must be brought to the attention of the court by filing a motion asking the court to hold the violating party in contempt. While contempt may be punished by jail time, this rarely occurs.

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Legally, if you want to file a divorce action in the Commonwealth of Kentucky, the Court must have jurisdiction to hear your case. At the most basic level, you must meet the KRS 430.140 residency requirement “that  one  (1)  of  the  parties,  at  the  time  the  action  was commenced,  resided  in  this  state,  or  was  stationed  in  this  state  while  a member of the armed services, and that the residence or military presence has been maintained for 180 days next preceding the filing of the petition.” There may be additional jurisdictional considerations including the presence of domestic violence, minor children, or location of your assets. If you are ready to determine when and where to file your divorce, you may want to speak with legal counsel.

Practically, there are numerous considerations that go into the filing of a divorce action. We have written before about the impact filing first might have on your case. Other considerations include your present financial circumstances, impact of the divorce on minor or adult children, safety concerns, and your emotional readiness to start the divorce process. You may want to consider meeting with an attorney before you are fully ready to file a divorce to obtain information about the divorce process. We have attorneys who can assist clients with pre-divorce planning and answer questions about what a divorce would entail.

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The date of actual separation may be important to your divorce depending on the arguments you intend to make regarding property. KRS 403.190(1) requires that a couple’s marital property be divided in “just proportions”—equitably rather than equally—considering several factors. One such factor that a court can consider is whether a spouse has contributed to the acquisition of marital property and debt after actual separation. If your spouse has not contributed to the acquisition of marital property after actual separation, you may be able to request a larger proportion of the marital property. You will want to discuss the date of separation with your legal representation prior to filing for a dissolution of marriage.

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It is tempting when negotiating a complex Marital Settlement Agreement to agree to share holidays by agreement and “kick the can down the road.” Unfortunately, such an agreement could cause problems if a disagreement does arise. Courts often have limited time available on their docket around the holidays and may not have time to hear a dispute prior to the holiday itself. In order to avoid last minute conflict, a holiday schedule or a default holiday schedule, that takes controls in the event of a dispute, can solve disagreements when they arise and prevent last minute problems.

The Kentucky Family Court Rules of Practice and Procedure, in Appendix C, suggest a holiday schedule that sets apart time on New Year’s Day, July 4^th, Thanksgiving,  Christmas/Winter Break, Mother’s Day and Father’s Day, Fall Break or Spring Break, and two consecutive weeks during the Summer Break, and birthday time. The dispute resolution process, such as mediation, offers the opportunity to create a holiday schedule specific to your family’s needs. If you are in the process of negotiating or renegotiating a parenting time agreement, you may want to consider additional religious, cultural, or special holidays that are important to your family.  For example, it may be important to one family to share the High Holy Days of the Jewish year, while another family opts to set aside special time on Halloween.

A schedule regarding special holidays can also be requested in litigation, but the Court may opt to set a default schedule that rotates the holidays between the parents. You will want to talk to an attorney and discuss the most likely outcome of any motions regarding holiday time.

In 2020, the holidays are even more stressful given the rise in COVID-19 cases throughout the country. Check out the CDC holiday recommendations and discuss safety recommendations with your former spouse or partner. Also, check out our Blog on tips for co-parenting towards a happy holiday season.

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Being the spouse who files the petition means that you have the option of deciding where to file for divorce. This can be important when you and your spouse live in different counties or different states, for many reasons including the convenience of not having to travel to a different county or state where your spouse filed for divorce. Of course, you cannot just file anywhere you like. You must meet the residency requirements for the state and county where you file. In order to file for divorce in Kentucky, either you or your spouse must have been a resident of Kentucky for 180 days. Usually, you should file for divorce in the county in which you live; otherwise you risk the case being transferred to that county anyway.

You should also keep in mind when deciding whether you should file the divorce petition the issue of court costs, including the filing fee, which varies throughout the state, but is $198 in Jefferson County. The spouse who does not file the petition, on the other hand, files a response, which is free to file. This filing fee also does not include other costs, such as hiring a special bailiff, which could be required if your spouse’s location is unknown or is evading service.

Filing the petition may give you the upper hand at trial. Most family law and divorce cases do not go to trial and are settled in mediation, which is generally more cost-effective than trial. However, a small percentage of cases do go to trial, and having filed the petition means that at trial, you will be able to present your case first, while the non-filing spouse will have to counter-argue and present his/her case second. You should not worry if you are not the filing spouse, though, because you will still be able to fully present you case.

Ultimately, however, which spouse files the divorce petition does not matter much, and the court will not take into consideration which spouse filed, as Kentucky is a no-fault divorce state, requiring only that the marriage is “irretrievably broken” as grounds for the divorce.

This is an update by Nathan R. Hardymon of a blog post “Is It Important Who Files Divorce Petition First?” originally written by Diana L. Skaggs in September 2006.

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Focus your attention on the things that you can control and minimize contact with your spouse. It is not uncommon for one spouse to exhibit unpleasant behavior towards the other spouse during a divorce. While your natural instinct may be to defend yourself, trying to change someone else’s behavior and engaging in a response is usually a futile attempt and it can often cause more frustration and aggravation. Unless your spouse is engaging in behaviors that cause you to feel unsafe, you should not engage with your spouse when he or she is acting this way. Instead, make sure to focus your attention on the things that are the most important to you, such as your children, protecting your rights in the divorce, and your mental and physical health. If you have children and are thus required to communicate with your spouse on a regular basis, keep your communications strictly about their care and best interests.

If not doing so already, consider beginning regular sessions with a qualified therapist. When parties separate or divorce, they can experience difficulty communicating with their spouse. A qualified and experienced therapist can help to improve your communication skills, gain a better understanding of the dynamics that are at play between you and your spouse that lead to conflict, and help you design strategies for preventing and reducing conflict. A therapist can also help you to process many of the negative emotions that you may be feeling in a constructive way.  

Do not lose sight of the forest for the trees. Oftentimes, parties in a divorce get caught up arguing over small issues that do not have a bearing on the overall outcome of their case. It can be difficult for some individuals to face the fact that they will not be able to get everything they want from their divorce. It can be easy for divorcing spouses to get preoccupied in arguing over who gets the dishes in the kitchen versus the china in the china cabinet when they should be focused on the most efficient way to divide their retirement accounts. To keep what is important to you in perspective, you should make a list of realistic goals for you and your attorney to focus on achieving. Then, when an issue arises, you should ask yourself if fighting about it will help you accomplish your ultimate goals.  

Hiring an experienced litigator to represent you in your divorce can be another way to reduce conflict. As mentioned above, you cannot control how your spouse conducts themselves during your divorce. An experienced litigator can offer a handful of legal strategies that can help to reduce conflict if your spouse becomes aggressive.   

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