WE WANT TO HELP YOU PROTECT YOUR FAMILY’S FUTURE STARTING TODAY
Divorce and other family law matters will impact every aspect of your life both personal and financial. We recognize that families are unique which is why we provide knowledgeable and caring family law attorneys that will listen to you and work hard to achieve your goals.
Ms. Callie E. Walton and Ms. Tracey Clemmons Smith are experienced litigators that will team with you to resolve your family law needs. They work hard both in and out of the courtroom to provide effective legal assistance that protect your personal and financial interests under Kentucky law. Many cases are resolved by settlement. However, in the event that an agreement is not possible between the parties, we are ready to litigate your case before the Court.
Ms. Walton and Ms. Smith’s philosophy is to protect the future of your family’s well-being both practically and financially. We understand that you need assistance in protecting your children, yourself and your future. We also understand that divorce and other family law matters are personal to your family. We are here to listen to your goals and be responsive to your needs. We will work aggressively in executing a plan under Kentucky law that will result in protecting your long-term family needs.
Petition and Response
Cases, whether divorce, custody or paternity, are initiated with a Petition which contains only the basic information necessary to begin the case. Specific detail and background information and issues are omitted from this beginning paperwork. At later stages in most litigation, the Court will be provided the specifics of each situation. The next step is the Response of your spouse. The Response is a general document that should not contain specific facts about the cause of divorce.
Families In Transition (FIT) Program
Individuals who file for divorce in Kentucky are required to complete the Families in Transition Program (FIT). FIT is designed to help parents and children deal with divorce related issues. The program applies to all families with children from ages 5 to 17, although some Courts require younger children to attend. The point of the program is to help parents work together, resolve their differences without negatively affecting the children. The program is designed to help prevent divorce related anxiety, depression, and behavioral problems in children. The second is to help children improve the social skills that help them adjust to divorce.
In order to proceed with a divorce both Parties must complete a Financial Disclosure document. A copy of the mandatory Form is attached, and may also be found at the following link: HERE. This is a required document which details all of the assets, debts, and financial interests and aspects of the divorce. Before a Court will decide any issue of child support, division of assets, division of debt, alimony, or maintenance, it is going to review this document and its attachments. Completion of this document with the assistance of an attorney is crucial. For example, the document requests information regarding non-marital assets, business interests, fair market values, and living expenses. These are categories that require specific legal knowledge and the assistance of a competent attorney to complete both accurately and in your best interest.
Kentucky now requires all parties to a divorce to attend mediation before a Trial Date may be obtained. Mediation involves the use of an independent attorney (usually a former Family Court Judge, or experienced Family litigator) to conduct negotiations regarding all topics in the divorce matter. The Mediator is usually agreed upon by the parties, but may be appointed by the Court. The mediation process is not binding, but provides both sides the opportunity to speak openly about the divorce, their objectives both family and financial, and what they believe is a fair resolution of all issues. Mediation provides an opportunity to fashion a settlement of the divorce without turning your personal, family, and financial future over to the Court system. Mediation will generally address every issue of the divorce, including custody, visitation, and child support matters, marital and non-marital property division, business assets, and debt division. All family Court Judges work very hard to make rulings that are fair, and compliant with the law. Mediation, however, gives you the opportunity to set the outcome, to bring the case to an end, and, in certain circumstances reach agreements that a Court may not provide.
If mediation is unsuccessful, the case will proceed to a Case Management Conference, and then Trial. The Case Management Conference requires the Parties to attend a short conference with the Court. Generally, the Court will review the status of the case and address any temporary issues, if possible. The case will also be set for a final hearing or trial before the Court. Following Trial, the Court will issue a written Opinion and Order regarding all of the matters addressed at the hearing. Each Trial Court has a different method for how it issues Opinions, and how long it takes. A decision is not usually made the day of the hearing or trial.
KEY ISSUES — QUESTIONS IN DIVORCE CASE
What Does “No-Fault” Divorce Mean?
Kentucky is a no-fault divorce state. This means that you do not have to allege fault on the part of either party to achieve a divorce. A no-fault divorce focuses on if either party believes the marriage is irretrievable broken. This also means that issues like extra-marital affairs, excessive spending, and other negative behaviors are not the factors that the Court considers in whether or not to grant a divorce. These types of issues are only potentially considered in specific areas, like debt division (for excessive spending), and an award of maintenance (also known as alimony)(for issues of extra-marital affairs).
How does the Court Divide Property:
The division of property (or assets) in a divorce is controlled by KRS 403.190. That Kentucky statute sets out the factors that all Kentucky Courts will consider. The statute requires that the Court “. . . shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors including:
- Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as a homemaker;
- Value of the property set apart to each spouse;
- Duration of the marriage; and
- 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.” KRS 403.190.
The phrase “just proportions” has been interpreted by Kentucky Courts in numerous ways. It does not necessarily mean “equal” proportions. The balance of the other factors listed often dictates whether an equal or 50/50 division is put in place.
If my Spouse did not Work, is she/he entitled to a 50/50 division of assets?
As stated above, the division of assets is dependent upon the factors set out in KRS 403.190. The contributions of a spouse, whether economic or non-economic, are considered in the division. Everything accumulated during the marriage is considered marital so all marital efforts are joint, no matter which spouse is working outside the home, or within caring for children or otherwise.
Will I have to Move out of My House?
One of the most challenging issues facing a divorcing couple is what to do with the marital residence. Who is going to stay in the home, and do we have to sell? The basic answer is neither party is required to move from the marital residence unless there is a legitimate reason such as domestic violence or abuse You and your spouse may continue to live in the same residence until an agreement is reached or the Court makes a ruling on the issue. Neither spouse should move out or create additional expense just because they want to or because their spouse tells them to leave. Always get the advice of an attorney before making this significant decision because it may impact the balance of the divorce or custody situation.
The question of whether you must sell the marital home is another issue. The answer to the question will depend very much on the overall division of the marital or non-marital assets, and whether you can afford the payment or refinance the debt. Very often the largest asset of a couple, is the marital home. If the marital home has significant equity that must be divided, then a financial analysis is necessary to determine if one spouse may keep the home, stay in the home, or buy out the equity of the other spouse. This is not a decision that anyone going through a divorce should make on their own without a full review of the options.
What is the difference between Non-Marital Property and Marital Property?
All property acquired during a marriage is presumed to be marital property subject to division by the Court. KRS 403.190(2) defines “martial property” as all property acquired after the marriage. Non-marital property may include property brought into the marriage, inheritance, gifts, property set aside by a pre-martial agreement, or property that was transferred from a non-marital asset to a new asset.
If you have brought assets and property into a marriage, or received property by gift, inheritance, or some other source not due to marital efforts, you may want it to be returned to you. In order to accomplish this, you must prove the non-marital character of the property. This can be a daunting and difficult task, especially in a long term marriage, or where the gift, inheritance of other non-marital source has been commingled with marital assets. The Court will expect documentation of the asset, and testimony confirming the non-marital character of the asset. This is a procedure best navigated with the assistance of an attorney.
Will I be responsible for my Spouse’s Credit card or other debt:
Kentucky does not have a statute that advises a Court how to divide debt. There is no presumption in a divorce as to whether a debt is marital or non-marital, or how or on what percentage basis a debt should be divided. Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001); Bodie v. Bodie, 590 S.W.2d 895 (Ky. App. 1979). In general, the Court will consider who accumulated the debt and for what purpose. It is up to the parties to make a presentation regarding who should be responsible for paying a debt.
Will I have to pay (or will I receive) Maintenance and Alimony:
Maintenance (also called alimony) may be ordered by the Court for any period of time, and in any amount. The determination of maintenance is controlled by Kentucky statute. Not every spouse will be entitled to maintenance. The key question is always: whether the requesting spouse lacks sufficient property and ability to meet his/her reasonable needs and is unable to support his/her self through employment? There are many other factors that will affect the length and amount of any maintenance payment. Some of those factors are: (1) the financial resources of the parties; (2) time necessary to acquire sufficient education or training for employment; (3) the standard of living established during the marriage; (4) the length of the marriage; (5) the age, physical and emotional condition of the requesting spouse; and (6) the ability of the paying spouse to meet his/her needs while paying maintenance.
Will I be responsible for my own Attorney Fees?
In Kentucky, a family Court may advance or award either party a sum for attorney fees. The statute that controls that advance or award of attorney fees is KRS 403.220. In awarding attorney fees, the Court will consider the financial resources of both parties, and the reasonableness of the request for fees in making the decision. An award of fees to either side is not mandatory, and will be based upon the presentation of the issue to the Court, and the Court’s discretion.
Child Custody and Child Support
What is the Difference between Joint Custody and Sole Custody?
Child Custody in Kentucky is divided into two types: Sole Custody or Joint Custody. Sole custody means that one parent makes the major decisions for the child. Joint custody means that both parents are to cooperate in the decision making for the child. The Statute which controls the determination of custody is KRS 403.270. In particular, KRS 403.270(2)(a) through (i), details the considerations that a Court will cover in making a custody determination. The key factor is what custody or parenting schedule is in the best interest of the Children.
One thing that is important to remember about custody is that it is not the same thing as parenting time, or visitation. Joint custody does not mean 50/50 or equal parenting time. Parents may have joint custody, but a different, unequal parenting schedule.
How is Child Support Determined?
Child support calculations are based upon the total gross income of both parties. The child support statutory provisions are found at KRS 403.211, 403.212, 403.213. These statutes control the determination of most child support orders. The amount of child support is based upon the Guideline amounts set out in KRS 403.211 and based upon the number of children. Amounts for work-related day-care, and health insurance deductions are also considered. The Court has broad discretion is setting child support amounts. Many other day to day factors may or may not be considered by the Court in setting a child support amount. It is best to seek the advice of counsel on the issue of child support. Issues like payment for extracurricular activities, the parenting schedule, private school tuition, college tuition, school supplies, health insurance premiums, and work related day care are matters that should be addressed with a skilled family attorney.
In the event that your income and the other parent’s combined gross income exceeds $15,000.00 gross per month, your case will require special attention. The Guidelines are limited by a cap of $15,000 total gross monthly income. If your income and the other parent’s income exceed $15,000 gross monthly, then the Court will consider other evidence and factors to determine the appropriate amount of child support, which may exceed the highest listed on the Guideline chart.
What is a Custodial Evaluation or Issued Focused Assessment?
Kentucky Courts are faced with many challenging custody decisions. If the parents cannot agree on what type of custody arrangement or parenting/visitation arrangement is in the best interest of their Children, then the Court may enlist the help of a neutral counselor to interview the parties and make a recommendation to the Court. This type of help is referred to as a custodial evaluation, or sometimes, an issue-focused evaluation. Both the custodial evaluation and issue focused evaluation are expensive and time-consuming obligations. The process involves the Court appointment of a Counselor. The Counselor then meets with all the parties, and the Children involved. Generally, there are several sessions involving the parents and Children. Some Counselors also require psychological testing, and evaluation. The process generally cost between $3,000 and $5,000, but may cost more. The Counselor then makes a recommendation to the Court. The Court is not required to follow the recommendation, but certainly considers the opinion as evidence in the case.