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Kentucky Family Law

Disclaimer: The content below is not all original content from The Farrish Law Firm, L.P.A. The content was obtained from several credible sources including Community Legal Aid and collaborativelaw.com.

Custody and Parenting Time

Since Kentucky is a no-fault state, a majority of divorces end with both parents sharing joint custody of the minor children. This means that the parents have to make joint decisions regarding the children, specifically as it relates to education, medical and religious decisions. Not that there are no other significant decisions that affect our children, but these three are the main issues that are usually contentious between divorced parents. Joint custody really has no relation to the amount of time a parent will spend with a child.

The parenting time schedule is a main issue in all cases involving children. This of course will dictate how much time the child will spend with each parent and when the transition between each parent will occur. A holiday schedule is usually included in each parenting schedule, with the holidays trumping any normal schedule that you may have.

For both custody and parenting schedules the Court will use a standard that is described as “best interest of the child.” The Court is required to use this standard by statute, which outlines factors that will determine the best interest of the child, which are:

  1. The wishes of the child’s parent or parents, and any de facto custodian, as to his custody;
  2. The wishes of the child as to his custodian;
  3. The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;
  4. The child’s adjustment to his home, school, and community;
  5. The mental and physical health of all individuals involved;
  6. Information, records, and evidence of domestic violence as defined in KRS 403.720;
  7. The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
  8. The intent of the parent or parents in placing the child with a de facto custodian; and
  9. The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.

Child Support

When a court sets child support for the paying parent, the court will begin the process by looking at the parties’ combined gross monthly income. While it may not seem appropriate that child support is based on the parties’ gross incomes and not their net incomes (also known as their “take home” pay), that is what is required under the current Kentucky child support laws.

To determine income the court will often look not only at recent paystubs, but also tax returns and W-2s for the last couple of years.  It is important to understand that when the court is calculating gross income, this amount includes not only base salary, but bonuses, overtime, and possibly benefits received from an employer that reduce living expenses, such as a work cell phone permitted for personal use or a company car.  In short, anything that the IRS considers income, the court will consider as income, though without the benefit of deductions.

It is also important to note that if the court determines a party is voluntarily unemployed or underemployed, then the court can impute income to the party at an amount it deems appropriate.  For example, if you are a doctor who earned a substantial income during the marriage but as soon as your spouse filed for divorce, you quit your job and begin working at a fast food restaurant earning minimum wage, the court does not have to accept that you only earn minimum wage.  The court can look at your earning history to determine what it believes to be your earning potential, and base child support on that amount. This applies to both the paying spouse and the recipient spouse.

Once the court has determined what the combined gross monthly income is, the court will utilize the Kentucky child support guidelines as defined by statue.  The statutes provide a monthly base child support amount as determined by the number of minor children the parents have in common and the combined gross monthly income. For example, if you have two children and your combined gross monthly income is $7,500, the statutes (presently) dictate that the amount to be $1,324 per month.  Note that this is not the amount that you are required to pay; this is the total amount that the legislature has determined is necessary for the support of the children. The court will then figure out each parent’s proportionate share of the combined gross monthly income.

If you earn $4,500 per month, and your spouse earns $3,000 per month, your proportionate share would be 60% and your spouses would be 40%. Accordingly, you would be required to pay your spouse 60% of the base child support amount. In addition to this amount, the court will also apportion the costs of work-related childcare and health insurance premiums in proportion to the parties’ incomes.

The above represents the typical scenario for calculating child support in Kentucky.  Courts are required to utilize the child support guidelines unless there are extraordinary circumstances. These can include a child with extraordinary medical or dental needs, a child with extraordinary educational needs, a parent with extraordinary needs (i.e., medical expenses), a child with independent financial resources, etc.  It is also important to note that some courts believe that an equal (or near equal) parenting time schedule is an extraordinary reason to justify deviating from the child support guidelines.

In Kentucky, child support usually terminates when a child reaches the age of majority, which under Kentucky law, occurs when the child reaches age 18, unless he is still in high school or is handicapped. Usually, child support obligations ordered by a Kentucky court terminate automatically when the child reaches age 18 and graduates from high school. Learn more about child support.

Division of Marital Estate

The Court is required to divide the marital estate. Under Kentucky Law (KRS 403.190), the court is to divide all marital property, without regard to marital misconduct in just proportions, considering all relevant factors, which must include: (a) contributions of a spouse, including contributions of a spouse as a house maker; (b) value of the property set aside to each spouse; (c) duration of the marriage; and (d) the economic circumstances of each spouse when the division of property is to become effective.

In Kentucky, marital property is defined as all property acquired by either spouse subsequent to the marriage and prior to dissolution of marriage, with five (5) exceptions, namely: (a) property acquired by gift or inheritance and the income therefrom, unless there are contributions to the increase in value of income from the significant activities of either party; (b) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift or inheritance during the marriage; (c) property acquired after a decree of separation; (d) property excluded by valid agreement of the parties; and (e) the increase in value of property acquired before the marriage, to the extent it did not resolute from the efforts of the parties during marriage.

While I understand that this is a lengthy explanation, generally it comes down to the Court dividing the estate approximately equally to both sides, unless there are circumstances that would require the court to divide the property unequally, such as a 60/40 type split. Learn more about property division.

Division of Debt

There is not a similar presumption (as there is with marital property) that debt acquired during the marriage is in fact, marital debt.  There is also no presumption that the debt allocated to each party should mirror the amount of property awarded to each party.  The Court has devised a series of factors to be considered when determining whether a debt is a marital debt, and if so, which of the party’s the debt should be awarded to.  Those factors are:  (1) Receipt of benefits and extent of participation (in acquiring the debt); (2) whether the debt was incurred to purchase assets designated as marital property; (3) whether the debt was necessary to provide for the maintenance and support of the family; and (4) the economic circumstances of the parties bearing on their respective abilities to assume the indebtness.

The “litmus test” for determining whether debt is marital or non-marital is whether the debt incurred benefited one or both spouses. If only one spouse is benefited, the debt is classified as non-marital.  Further, when a party provides evidence that marital funds were used to support his or her household, along with the spouse’s household, dissipation will not be found.

Maintenence

Maintenance is a very subjective area of the law.  There is no exact formula for maintenance.  I want to take a moment to provide you with some background information on maintenance in Kentucky.

Maintenance is a payment from one spouse to another for financial support. There are different reasons a court may order maintenance to be paid. First, as in the case of a longer marriage, maintenance may enable the spouse receiving the support to maintain a lifestyle close to the one he or she enjoyed during the marriage. This is called permanent maintenance, or open-ended maintenance. Another reason is to help a spouse become rehabilitated, possibly assisting a spouse to return to school to increase his or her earning capacity. This is called rehabilitative maintenance, or close-ended maintenance. Finally, the court may allow one spouse to pay money over time to make up for an imbalance in property division. This is called lump sum maintenance. There are no exact formulas for determining the type, length, and amount of payments. If maintenance is not received at the time of the divorce, it cannot be obtained later.

In order to qualify for maintenance the person receiving maintenance has the burden to show the Court that they are entitled to maintenance. In Kentucky, the statute provides a two pronged test that a Court must use in determining if the person claiming maintenance is entitled to maintenance. The Court may only award maintenance if it finds that the spouse seeking maintenance:

  1. Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
  2. Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

If the Court finds that neither of the prongs are true, then the Court will not order maintenance to be paid to the spouse seeking maintenance.  However, if the Court finds both of these prongs to be true, then the other spouse is entitled to maintenance. The Court would then use the following factors in determining the amount and duration of the maintenance obligation:

  1. The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
  2. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
  3. The standard of living established during the marriage;
  4. The duration of the marriage;
  5. The age, and the physical and emotional condition of the spouse seeking maintenance; and
  6. The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

Learn more about maintenance.

Attorney’s Fees

Whether or not a particular judge is likely to award attorney’s fees requires us to predict an outcome of a trial or hearing.  We cannot do that.  Even with our years of experience, attorney’s fees are one of the least predictable matters.  As we described above, judges have great discretion.  This means each judge has a different opinion on awarding attorney’s fees.  Many judges are reluctant to award legal fees because they believe the cost of an attorney should be the decision and responsibility of the person hiring the attorney.  Before a court awards attorney’s fees, the judge will consider many factors, including its ruling on other issues.  Each case is different.  We will try and answer as many questions as you have regarding what our best arguments may be, what the opposing counsel’s argument may be, what the law says, and what our experience has been in similar cases.  First, we summarize Kentucky law.

Kentucky Courts may not award attorney’s fees absent statutory authority or agreement of the parties.  There is one statutory provision that directly authorizes the court to order attorney fees to be paid by one party to the adversary party or to his or her attorney.

KRS 403.220 authorizes the Court to order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under the dissolution of marriage statutes and for attorney’s fees. The statute specifically states that the court, in making its determination, must consider the financial resources of both parties.

The court is vested with a great deal of discretion in awarding attorney fees.  Absent a clear showing of abuse, the judgment of the trial court will not be disturbed on appeal.