Maintenance & Property Division

Maintenance

Though generally Kentucky is a no fault state. Fault of the party seeking alimony is considered. In other words if you are trying to get maintenance, then your misconduct will be considered. However, if you are trying to avoid paying maintenance, the court will not punish you for your marital misconduct by awarding maintenance to your spouse.

403.200 Maintenance — Court may grant order for either spouse.

  1. In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of a marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only 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.
  2. The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
    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.

Modification & Termination of Maintenance

A maintenance award may be modified by two methods (1) agreement of the parties pursuant to a separation agreement, or (2) changed circumstances so substantial and continuous as to make the terms of award unconscionable.

The controlling statute is KRS 403.250.  Usually the court compares the parties’ present circumstances to the circumstances existing at the time the court’s separation decree was first entered.

403.250 Modification or termination of provisions for maintenance and property disposition.

  1. Except as otherwise provided in subsection (6) of KRS 403.180, the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.
  2. Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

PROPERTY DIVISON

In Kentucky, marital property and debts can either be divided between the parties through a marital settlement agreement, or ordered by the court. Kentucky is an “Equitatable Distribution” state. The marital fault of the parties is not considered.

What is Equitable Division?

Equitable property division does not mean equal. To be equitable, the division must be fair and just.

How is the property divided by the court?

First, the court classifies the property and debt as either marital or non-marital. Only marital assets and debts will be divided Second, the court assigns a monetary value on the marital property and debt and distributes the marital assets between the two parties equitably.

403.190 Disposition of property.

  1. In a proceeding for dissolution of the marriage or for legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse’s property to him. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors including:
    1. Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker;
    2. Value of the property set apart to each spouse;
    3. Duration of the marriage; and
    4. 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.
  2. For the purpose of this chapter, “marital property” means all property acquired by either spouse subsequent to the marriage except:
    1. Property acquired by gift, bequest, devise, or descent during the marriage and the income derived therefrom unless there are significant activities of either spouse which contributed to the increase in value of said property and the income earned therefrom;
    2. Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
    3. Property acquired by a spouse after a decree of legal separation;
    4. Property excluded by valid agreement of the parties; and
    5. 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.
  3. All property acquired by either spouse after the marriage and before a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (2) of this section.
  4. If the retirement benefits of one spouse are excepted from classification as marital property, or not considered as an economic circumstance during the division of marital property, then the retirement benefits of the other spouse shall also be excepted, or not considered, as the case may be. However, the level of exception provided to the spouse with the greater retirement benefit shall not exceed the level of exception provided to the other spouse. Retirement benefits, for the purposes of this subsection shall include retirement or disability allowances, accumulated contributions, or any other benefit of a retirement system or plan regulated by the Employees Retirement Income Security Act of 1974, or of a public retirement system administered by an agency of a state or local government, including deferred compensation plans created pursuant to KRS 18A.230 to 18A.275 or defined contribution or money purchase plans qualified under Section 401(a) of the Internal Revenue Code of 1954, as amended.