In a contested divorce. What to expect.
You and your spouse cannot agree about some very important aspect of your divorce such as property division, maintenance, child custody, child visitation, or child support. If this describes your divorce, you need a competent attorney to represent you in court and throughout the settlement negotiations.
In contested divorces the parties are almost always ordered by the court to participate in mediation. If at the end of mediation, the divorcing spouses disagree, the issues will be decided by a judge at a hearing. There are some exceptions to the mediation requirements.
Contested divorce cases may take several months and even up to a year to complete. Contested divorces are usually expensive. You attorney may have to make many trips to family court and file many motions. Typical issues in uncontested divorce include maintenance, child support, property division, dissipation of marital assets, child custody and visitation.
Separation Agreement
Separation agreements are used when the parties are legally separating or getting a divorce. Separation agreements must be in writing. Separation agreements are binding in court except for the terms concerning the support, custody, or visitation of children. When it comes to children, the best interest of the child is the standard. If the court finds that the terms in the separation agreement satisfy the best interest of the child standard, then your separation agreement will be accepted. If the court finds a separation agreement unconscionable, the parties may be allowed to revise it and submit a new one, or in the alternative, the judge may make its own orders regarding the disposition of property, support, and maintenance. Terms of the separation agreement are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.
Property Division – KRS403.190
Kentucky is an equitable distribution state. Fault of the parties is not considered when dividing property. Jurisdiction over the person is necessary in order for the court to divide property. Relevant factors used in Kentucky Property Division include:
- Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker.
- Value of the property set apart to each spouse
- Duration of the marriage
- Economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children.
How does the court determine if the property is marital or non-marital? In Kentucky the “source of funds” is used to determine the property’s character as either marital or non-marital.
Marital Property
- With some exceptions outlined below, all property acquired by either spouse after the marriage is marital property
- Marital Property could be in the form of: Retirement Benefits, Business Assets, Personal Injury Awards, Worker’s Compensation Awards, Some Disability Benefits, Military Pay & Military Retirement Benefits
Non Marital Property
Exceptions to the rule that all property acquired during the marriage is marital
- Gifts
- Bequest/ Devise/ Descent
- Income from bequest/devise/descent unless the spouse significantly contributed to the increasing in value or increase in income from such property
- Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent
- Property acquired by a spouse after a decree of legal separation
- Property excluded by valid agreement of the parties
- The increase in value of property acquired before the marriage to the extent that such increase did not result from the efforts of the parties during marriage.
Other Issues
- Value and Valuation
- Tax Consequences
- Bankruptcy
- Dissipation of assets
