A Kentucky divorce with children involves 7 major steps. If your case is complex or goes to trial there may also be Discovery. If you need to do additional Discovery this really is its own step and should be started as soon as possible. Many of the steps can be completed simultaneously (i.e. you can work on issues relating to the children at the same time as you are working on dividing the property). If there are no children involved simply omit steps 2b and 5.
1. Starting The Divorce Proceedings
There are three documents which must be filed to start a divorce in Kentucky. You must file a Petition For Divorce, a Case Data Information Sheet and a Certificate Of Divorce.
a. If you do not have an attorney many Kentucky Counties have Pro Se Divorce packets which you can purchase for a nominal fee at the Court Clerk’s Office. The Petition contains the information necessary to identify the parties, their addresses, occupations, and children.
b. The Case Date Information Sheet is form FC-3 and can be found at the following link: http://courts.ky.gov/forms/formslibnumerically.htm
c. The Certificate of Divorce is form VS-300. An original certificate must be used. They should be available at the Court Clerk’s Office.
2. Service and Timelines
Once you file the initial pleadings you must serve the other party. This can be done by sending the Petition and a summons via registered mail from the courthouse or sending a Sherriff to serve your soon to be ex. Filing the divorce and serving the other party start a number of events in action.
a. The party who filed the divorce must file their preliminary case disclosure within 45 days of filing the divorce. The other party must file their preliminary case disclosure within 45 days of being served. The preliminary case disclosure form is form AOC-238 and can be found at the following link: http://courts.ky.gov/forms/formslibnumerically.htm
b. Most counties will Order both parties to attend a Families In Transition program. Different counties call this program different names and have different time requirements. In Jefferson County both parties must register for the program within 30 days.
3. Initial Motions
There are several motions that can be made at the beginning of the divorce. The three most common are detailed below.
a. If there are children involved either party can request a temporary motion for custody, parenting schedule, or child support. If the Court enters a temporary order it generally runs until the Divorce is final and a final order replaces the temporary order.
b. If one of the parties is entitled to maintenance at the end of the divorce they may also be entitled to temporary maintenance throughout the divorce process.
c. A status quo order can prohibit either party from spending money other than as reasonably necessary for normal living expenses and from damaging or destroying marital property.
d. There are many other temporary orders available to provide relief during the divorce process.
4. Dividing The Property
a. First, both parties have to file a Disclosure form. It is required by law as discussed in 2a above.
b. Second, the marital property can be divided in one of three ways. * Non-marital property stays with the original owner. Non-marital property is generally property owned by a party prior to the marriage or property received via gift or inheritance. Non-marital property is returned to the owner.
i. If you and your current spouse can agree as to how to divide the marital property, a Property Settlement Agreement can be prepared, signed, and filed with the Court.
ii. If you cannot agree, the court will most likely order you both to attend mediation, where a mediator (usually an attorney or retired Judge) will try to help you settle your differences. Court ordered mediators usually charge around $200 per hour and mediations are generally last about 3 hours. If successful, a Property Settlement Agreement should be prepared and signed at the mediation and then one of the parties will file it with the Court.
iii. If mediation is not successful you will have a hearing/trial and the Judge will decide how the marital property will be divided.
5. Setting Custody, Visitation, And Child Support
a. Custody is the legal right to make decisions for your child(ren). It has nothing to do with how much time you see your child(ren). Kentucky only recognizes two forms of custody, Joint Custody and Sole Custody. Custody will be determined by the child’s best interest. That is, the court will determine what form of custody is in the child’s best interest based on several factors. Many of those factors are listed in the KRS 403.270 which you can view at this link: http://lrc.ky.gov/KRS/403-00/270.PDF
b. Visitation or parenting time is the time that each party will spend with the child. You and your current spouse can agree many variations and different visitation schedules so long as they are in the child(ren)’s best interest. If you cannot agree, the Kentucky Supreme Court has recently created a model visitation schedule and most Kentucky Counties have their own specific default visitation schedule. If you cannot agree what schedule is put in place will be based on what the Court feels is in the best interest of the children.
c. An action for child support may be brought by a parent contributing substantially to the support of the child. There are generally two instances where a parent is entitled to child support. If the parent has Sole Custody or in Joint Custody, the parent that the child resides with a majority of the time (often referred to as Primary Residential Parent or primary Residence) is usually entitled to child support. It is possible to receive child support in other situations but you need to speak with an attorney about the details of your specific case. Kentucky has a formula for determining child support based on the salary of each parent, the costs of child care, and the cost of health insurance. Unless both parents agree to deviate from the guidelines the Court will not deviate unless the parent requesting the deviation can prove there are special circumstances warranting such a deviation.
d. Like the Property Settlement Agreement discussed in 4 above, Custody, Visitation and Child Support can be agreed to by the parents, resolved at mediation, or decided by the Judge after a hearing/trial.
6. Maintenance and Costs
a. Unlike child support there is no clear formula for maintenance. Maintenance is at the Judges discretion. KRS 403.200 section 1 provides for the circumstances when maintenance may be granted. Section 2 provides the factors the court should consider when determining the amount and duration of the payments. KRS 403.200 can be found at this link: http://lrc.ky.gov/KRS/403-00/200.PDF
b. One party can request that the other party pay all or part of the court costs and attorney’s fees. This too is at the Judge’s discretion. See KRS 403.220: http://lrc.ky.gov/KRS/403-00/220.PDF
7. Finishing the Divorce Proceedings
Once all of the issues have been resolved there are three additional documents which must be filed. One party must file Interrogatories For The Purpose Of Proof (or appear in Court to give testimony under Oath). Both parties should sign an Agreed Order pursuant to Family Court Rule of Practice and Procedure 3.1.a. One Party should submit a Decree of Dissolution for the Judge to sign. Until a Judge signs the Final Decree of Dissolution you are not divorced. Except in extreme circumstances a Judge will not sign such a decree until everything stated above has been completed.