THE KENTUCKY
DIVORCE
PROCESS
Musselwhite Meinhart & Staples, PSC
Although Each Divorce Is As Unique as Each
Marriage, There Are Common Steps and
Considerations in Any Kentucky Divorce
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The decision to end a marriage is usually not made easily. Often, a couple
spends months, even years, trying to make the marriage work before resorting
to divorce. Once the decision has been made, however, it is time to move
forward with the divorce process. If you have never been through the process of
divorce it helps to have an idea what to expect. Although each divorce is as
unique as each marriage, there are common steps and considerations in any
Kentucky divorce.
FAMILIARIZING YOURSELF WITH THE TERMINOLOGY
The legal system can be intimidating regardless of the reason for your
involvement. One reason why the legal system can be so intimidating is the legal
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jargon used. If you are going through a divorce you should familiarize yourself
with some terminology commonly used in a divorce to make the process a bit
less intimidating.
Petitioner – spouse who files for the divorce
Respondent – non-filing spouse
Petition for Dissolution of Marriage – name of the document that
must be filed with the appropriate court to begin the divorce process in
Kentucky
Decree of Dissolution of Marriage – name of the document entered
when the divorce process is complete and you are granted a divorce.
Summons – document sent to the Respondent, along with a copy of
the Petition for Dissolution of Marriage, informing the Respondent that
the divorce process has begun.
Child Support Worksheet – document that must be filled out and
used to compute child support if minor children are involved.
Marital Settlement Agreement – document filed with the court
when the parties are able to reach an agreement with regard to issues
in the divorce. This agreement is also sometimes called a Separation
Agreement
FILING THE PETITION
The first step in a Kentucky divorce is to file the Petition for Dissolution of
Marriage. To file for divorce in Kentucky either you, or your spouse, must have
lived in Kentucky (or been stationed in Kentucky if in the military) for the 180
days preceding the filing of the Petition.
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Kentucky is a “no-fault” divorce state, meaning that no grounds for divorce are
required. Instead, all divorces in Kentucky are filed on the grounds of
“irretrievable breakdown”. Fault, or marital misconduct, can play a role, however,
when it comes to division of assets, payment of alimony, or custody/visitation
with minor children.
Kentucky requires the parties in a divorce to live apart for at least 60 days before
a final decree can be entered. The 60 day requirement can be met if the parties
remain living in the same home but refrain from sexual relations during the
required time period.
RESPONDENT’S ANSWER
After the Petition is served on the
Respondent, he or she has the option to
respond to the Petition in the form of a
written “Response”. A Response will
address the points set forth in the
Petition and provides the court, and the
Petitioner, with some idea of the issues
that will be contested in the divorce. If the Respondent fails to file a Response
with the court the Petitioner may ask for a Default Judgment. Although a Default
Judgment allows the divorce to be finalized, some issues cannot be decided
without the Respondent’s input, making a Default Judgment a course of last
resort in most cases.
COMMON DIVORCE ISSUES
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Once the Petition and Response have been filed with the court both parties will
begin negotiating the terms of the divorce. Some divorces are resolved relatively
quickly by the parties while others can drag on for a year or more before a
resolution is reached. The most common issues that need to be resolved before
a divorce can be finalized are:
Assets and Debts – Kentucky is an “equitable distribution” state. What
that means is that if a court is required to decide how assets of the
marriage are divided the court will decide based on what is “equitable”, or
fair. Both parties may own separate property during the marriage;
however, how property is titled does not necessarily determine who will
receive the property in a divorce. Furthermore, “equitable” does not mean
“equal”. A court will consider things such as: duration of the marriage;
contribution of each spouse to acquisition of assets, including contributions
by a stay-at-home parent; and the economic circumstances of each spouse
at the time of the divorce.
Children – the court will consider the “best interests of the child” when
custody and/or visitation are issues in a divorce. The court is only
concerned with lessening the impact of the divorce and doing what is best
for the child. The court will only consider misconduct by one of the parties
if that misconduct impacts the children. For example, if domestic violence
or substance abuse by a parent is alleged in a divorce the court will only
consider the allegations to the extent they affect the children. If domestic
violence occurred in front of the children, for example, it could impact
custody or visitation decisions.
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Child/Alimony/Spousal Support–the court will typically order the non-
custodial parent to pay child support to the parent with custody of the
children. Child support is based on the child support worksheet; although,
the parties or the court can deviate from the worksheet for good cause.
Kentucky does allow spousal support to be ordered in situations where it is
agreed to by the parties or when the court finds it is warranted. Factors
such as the length of the marriage, the value of marital property awarded
to each spouse, and the requesting spouse’s ability to obtain employment
given his or her education and employment history will be considered when
deciding whether or not to award spousal support and, if so, how much to
award and for how long.
MEDIATION OR COUNSELING
If the Respondent does not want the
divorce, the court may order the parties
to counseling or to a conciliation
conference. Furthermore, the parties
may choose to use mediation as an
alternative to a trial or as a pre-trial
option. Mediation involves a neutral
third party who has gone through special training to become a mediator. Often,
a mediator is an attorney. The mediator will confer with both sides to determine
what the contested issues are in the divorce and then work with both sides to try
and obtain a resolution to those issues.
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REACHING AN AGREEMENT
If the parties are able to reach an agreement that resolves all of the issues in the
divorce they may submit a Marital Settlement Agreement to the court for
approval. If the court approves the Agreement the divorce can be finalized
without the need for a trial. Clearly, reaching an agreement saves both time and
money in a divorce as well as avoids the emotional cost of a trial.
WHAT HAPPENS WHEN AN AGREEMENT CANNOT BE
REACHED?
If the parties are unable to resolve all of the issues in a divorce a trial will be
necessary. If some issues are resolved
but others remain contested the trial
can be limited to resolving only those
issued that are contested; however, a
trial of any type can be expensive,
both in terms of dollars and in terms
of the emotional toll on those involved.
No two divorces are the same. Although the preceding information provides a
general overview of the divorce process in Kentucky there is no substitute for
professional advice. If you are considering divorce, consult with an experienced
Kentucky divorce attorney as soon as possible to ensure that your rights are
protected.
RESOURCES
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About the Author
Paul Musselwhite, Carol Blakeley Meinhart, Kimberly Musselwhite Staples, and
Robert D. McIntosh are the experienced and knowledgeable attorneys that make
up Musselwhite, Meinhart & Staples. With over 50 years of combined experience,
they have been serving the legal needs of individuals, individuals in the military
and families in Hardin county and all of central Kentucky with pride and dignity.
Practicing divorce cases in Hardin county, central Kentucky and beyond, they are
experienced in all types of law.
Musselwhite Meinhart & Staples, PSC
www.mmslawonline.com
385 W. Lincoln Trail Blvd.
Radcliff, KY 40160
3103 Fern Valley Road,
Suite 203, Louisville, KY 40213
Toll-Free: 1-800-754-HELP
Fax: (270) 351-6069
