Legal Separation separates property, custody and for all practical purposes results in the same ending as a divorce, with one exception… your still married! However, it is a good alternative for couples who have religious reasons behind not getting divorced, or if one spouse is being financially irresponsible and the other spouse and children are paying the price.
The law allows the separation to be converted to a divorce within 12 months of issuance of separation. This is helpful in cases wherein the parties are trying to reconcile, but need time to do so, or if one spouse or children still need benefits, but must remain married to do so. See KRS 403.190(2).
Annulment absolutely VOIDS the marriage. It is a judicial Order that the marriage never existed. It is rare, but the Court may find that, within 90 days or 1 year from the time the of annulment was realized; Some fraud as to the essentials of marriage was perpetrated upon one of or both spouses. An annulment is different from a divorce: a divorce ends a marriage; an annulment means no valid marriage ever existed. If your marriage was legally invalid from the start, you may be eligible to have your marriage annulled.
You must have a legal "ground" (reason) for your marriage to be annulled in Kentucky. Generally, your marriage may be annulled if any of the following circumstances was present at the time of the marriage:
The Courts may also grant annulments for any other reason that a judge believes justifies setting aside the marriage. Some grounds for annulment have additional conditions:
A spouse is unable to consent to marriage if they are unable to understand what the marriage means. The spouse must have been unable to consent at the time of the marriage. Mental disability can be a reason that a spouse can’t consent to the marriage, but the disability must be severe enough that the person did not understand what marriage means. A person who is intoxicated may also be unable to consent to a marriage. The court won’t grant an annulment unless there is very convincing evidence that a spouse couldn’t consent to the marriage.
Fraud must be significant to be a ground to annul a marriage, and it must be directly related to the marriage itself. For example, in Kentucky, courts have annulled marriages based on a wife lying about being pregnant to convince her husband to marry. On the other hand, courts have refused to annul a marriage when a wife did not tell her husband that she had an illegitimate child.
If one party is under 18 when he or she is married, but continues to live with the other spouse after reaching 18, the marriage can no longer be annulled.
Statute of Limitations
Kentucky has a special "statute of limitations" (deadline) that applies to annulments. If you believe your divorce should be annulled because of force, duress or fraud, you have to file for an annulment within 90 days of finding out about the reason for the annulment. If the marriage is being annulled because of incest, bigamy or mental disability, you have to file for annulment within a year of discovering the reason for the annulment.
When an annulment is granted, it means you and your spouse were never legally married. After an order of annulment, both spouses can say that there was never a marriage between them.
In Kentucky, where the statute of limitations only makes annulment possible for a very short time, there is no right to alimony or property division after an annulment.
A marriage can still be annulled even if the couple had children during the marriage. In Kentucky, the children of an annulled marriage are always considered legitimate, meaning both parents have the duty to financially support the children. A child born within 10 months of an annulled marriage is also considered legitimate.
For the full text of the law on annulment in Kentucky, see the Kentucky Revised Statutes, Title XXXV, Chapters 402-403 http://www.lrc.ky.gov/krs/titles.htm
Contact information for all the Kentucky Circuit Courts is here:http://courts.ky.gov/courts/clerks/Pages/default.aspx
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We have all heard of PRE marital (nuptial) agreements (Prenups), there is also POST Marital agreements (Postnups). It is the same as an Uncontested Divorce Marital Settlement Agreement, as explained above, with one exception… You remain married; and if you ever get divorced, the agreement will be accepted by the Court and enforced by Decree (Order). WITH ONE EXCEPTION- Both parties must have separate lawyers to review and sign along with the parties.
Usually, spouses do not consider drafting a postnup until a marital difficulty has arisen. At that time, a postnup can serve as a contract between the parties to gain promises from each to improve the marriage or define what will occur if divorce is undertaken. No matter the reason it is utilized, a well-drafted postnup can save time and expense in later divorce litigation by resolving issues in advance.
Divorce from bed and board is a relic from the era of fault-based divorce that is still available under Kentucky law. Prior to 1972, a party seeking divorce had to demonstrate that the other spouse was somehow at fault before a court would grant a divorce. Divorce from bed and board was utilized if fault could not be sufficiently proven, though the parties could no longer stand to live together.
This option still exists under Kentucky law. See KRS 403.050 (last modified in 1942). However, in actuality it is no longer utilized. The standard to obtain divorce is now merely “irretrievable breakdown” as alleged by one of the parties, so it is not difficult to obtain a divorce if desired. If some measure short of divorce is preferred, legal separation more cleanly establishes each party’s rights under the modern family law statutes.
Under Kentucky Law, Divorce is a No-Fault judicial proceeding, meaning that it is no longer necessary to establish any fault on the part of the other spouse. All a spouse has to do is swear or affirm under oath that the marriage is Irretrievably Broken.
Typically, parties will enter into some sort of Family Counseling if the parties believe that there is hope in saving the marriage. Usually Counseling will not be ordered, however; it may be requested by the Court under special circumstances, especially if children are involved.
All persons seeking a Divorce must file and comply with all rules and regulations associated with Divorce. Specifically, all law in the Kentucky Revised Statutes, and all the procedures and rules of the local courts Kentucky Family Court Rules of Procedure and Practice, the particular county’s local rules like the Fayette County Family Court Rules. See also: KRS 403.180.
Uncontested Divorce: Legal Fees- $650.00 + Court Cost ($176.00 in Fayette County and $151.00 in Jessamine County). A Divorce that can be agreed upon and over with shortly at low cost (Fees, court costs, postage and handling average $800.00 - $1000.00) is actually the majority of divorces that Creech Law Office is hired to do. Agreed divorces are easy and less stressful.
Mr. Creech will meet with one or both parties; gather all information needed, then draft all documents for the uncontested divorce, submit and file within a three day period. If there are no children the divorce is eligible for entry of decree the same day. (Occasionally, the Judge will be in office and if requested expedition for good cause is shown, it can be decreed same day).
Mediated Divorce: Legal Fees- $1,100.00 + Court Costs ($176.00 in Fayette County and $151.00 in Jessamine County).
Married Couples who want to agree, but simply don’t know the law or how the Judicial System applies to their specific case will probably want to choose a mediated divorce. One of our attorney’s will gather the asset/income/debt and other vital statistic information; then assist the couple in organizing and classifying marital division and custody/timesharing/child support decisions in an educated manner.
Child support can be agreed upon by the parties or waived completely in exchange for a fair and equitable substitute (usually in the form of share of marital home or retirement/pension)
Contested Divorce: Legal Fees- $2,500.00 + Court Costs ($176.00 in Fayette County and $151.00 in Jessamine County).
Many Contested Divorcing couples ultimately end up agreeing upon division of property even though it starts out Contested Fayette County Family Court Judges strongly prefer Mediation and will occasionally Order the parties to Mediate. Jessamine / Garrard Family Court Judge, Jeff Moss prefers mediation of the matter prior to setting a trial date. If however, no agreement can be made; the parties must litigate their case at a formal hearing where arguments, testimony and evidence is put before a Judge who will render a final decree of custody timeshare and division of property based upon the Court’s findings of facts after a hearing (trial).
Marital Versus Non Marital Property
It is essential you are restored all property rightfully yours pursuant to the law of non-marital property. Your spouse is not entitled to any property you owned prior to the marriage, or any money or property you received as a gift or inheritance before or after the marriage.
Family Court Decision-making Authority for Property Division
Our Family Courts abide by Legislative Acts [KRS Chapter 403, and its related statutes] and by precedent [Court Decisions from previous cases that interpreted the legislative Acts]. In those cases on Non Marital versus Marital property, the Courts focus on Contribution allocation. According to KRS 403.190(1), the court must divide marital property “in just proportions”. It may consider “all relevant factors”, but marital misconduct/adultery may not be considered. Kentucky Courts ruled in Croft v. Croft, 240 S.W.3d 651 (Ky. Ct. App. 2007). Division of assets need not be equal. The court is to consider, Contribution of each spouse to acquisition of the marital property”.
Gifts and Inheritance (*Note, inheritances CAN be used to calculate child support).
Certainly all gifts and Inheritance’s are non marital, and if used to purchase an asset, be it car, farm, or television set; it remains Non Marital.
All property owned by the parties in a divorce is first presumed to be Marital Property acquired during the marriage. The burden to remove property from the divorce proceedings is on the party claiming that property is not marital and should not be calculated as part of the marital esatate. The Law regarding Marital property is located in KRS 403.190(3).
Once you provide documentation and proof of any asset obtained outside of marriage or by gift or inheritance, the Burden to keep the property in the Divorce action is shifted to the other party.
Tracing Property is the key to shifting the burden to the party claiming your property is a part of the divorce. To trace property, you and your attorney will obtain proof of the gift/inheritance and prior to marriage purchases. This research can be intense, and involves research into the parties’ assets, finances and above all, proof in the form of; supporting documentation.
The original Value of property owned at the time of marriage is non marital. If you own property before the marriage and then it increases in value after the marriage, only that amount of increase may be subject to division. The Court would decide if the other party contributed to that increase in value and divide the increased value portion of the asset by percentage of contribution.
House owned before marriage: generally speaking, the Court’s take a snapshot of the value of the property on the date of marriage, and compare that with a value of the property upon the day of divorce.
Example: Husband owned house worth $100,000.00 on date of marriage. After marrying, and upon now divorcing, the house is worth $120,000.00. The marital portion of the home is only $20,000.00 (to be divided equally or equitably depending on what equity is in real estate).
Your college vehicle may have been purchased before the marriage, and certainly it is likely to only decrease in value. In that case, the car is non-marital property, and will not be allowed to be part of the divorce allocation of assets.