What the requirements to file divorce (aka dissolution of marriage) or legal separation in the Commonwealth of Kentucky?

What are the requirements to file divorce (aka dissolution of marriage) or legal separation in the Commonwealth of Kentucky?

If you want an overview of the process, then click HERE. What follows is a detailed look at the requirements to file divorce (aka dissolution of marriage) or legal separation. If you prefer to simply get together with me, then call my office at (502) 509-1490 to make an appointment. I'll complete the paperwork with you sitting there and we'll file it with the court the same day. 

If it is an uncontested divorce / dissolution of marriage / legal separation where you agree on who gets what (how to divide your assets and debts), with no minor children, neither spouse is pregnant, and have lived 60 days without sexual cohabitation with your spouse, then ...

Now, there is a simple process if either you or your spouse have resided in Kentucky for 180 days before filing the petition, you and your spouse agree the marriage is irretrievably broken with no hope of reconciliation, neither you nor your spouse are pregnant, you and your spouse have no minor children, you and your spouse discussed and agree on how to divide your property and your debts, you and your spouse have not sexually cohabitated with one another in the last 60 days, and you and your spouse are willing to use one attorney and have the money to hire me.

You'll be divorced as soon as the judge reviews it, determines everything is in order and the agreement meets the statutory requirements, and the clerk enters the order. You will not have to go to court (unless the judge sees something that causes him / her concern). 

If it is an uncontested divorce / dissolution of marriage / legal separation where you agree on who gets what (how to divide your assets and debts), with minor children, neither spouse is pregnant, and lived 60 days without sexual cohabitation with your spouse, then ...

What if all those things are true and we have minor children? In other words, one of us has resided in Kentucky for 180 days before filing the petition, we agree that the marriage is irretrievably broken with no hope of reconciliation, we have one or more minor children, we discussed and agree on how to divide our property and our debts, we have not sexually cohabitated with one another in the last 60 days, and we are willing to use one attorney. Is there a simple process?

In that case, call my office at (502) 509-1490 to make an appointment. I'll complete the 1st part of the paperwork with you sitting there and we'll file it with the court the same day. Here's the difference, the 60 day clock starts once we file your spouse's entry of appearance and waiver. You will make an appointment for a date and time that is convenient to you sometime after the 60 days have passed before you leave the office to sign the final paperwork.

During the 60 day waiting period, you, your spouse, and each school aged child will attend separate Families in Transition or Parent's Education Classes (see my blog Families in Transition (FIT) Bullitt County, Hardin County, Jefferson County Frequently Asked Questions and Schedule for 2022). You will provide proof of completion which we will file with the Court.

You will come into the office to sign the final paperwork - we'll do it electronically - and we'll file it with the court. You'll be divorced as soon as the judge reviews it, determines everything is in order and the agreement meets the statutory requirements, and the clerk enters the order. You will not have to go to court (unless the judge sees something that causes him / her concern).

What is my situation is different that the two above? All other scenarios - contested divorce / dissolution of marriage / legal separation

In all other cases, the process for divorce depends on several considerations:

  • Have you or your spouse resided or been stationed in Kentucky for the least 180 days before filing the divorce or disssolution of marriage petition?
  • Do you or your spouse believe the marriage is irretrievably broken with no hope of reconciliation?
  • Did you and your spouse have or adopt any children who are minors?
  • What is the military status of you and your spouse? 
  • Are or do you or your spouse plan to be an active duty service member, reservist and the member of the National Guard?
    • If so, is the servicemember deployed?
  • Is one of the spouses pregnant?
  • Have you and your spouse lived without sexual cohabitation for at least 60 days?
  • Do you or your spouse want to stay on the other spouse's insurance after the decree is entered?
  • Whether assets are being hidden?
  • Sometimes, one or both of the spouses just want the fight or hold entrenched and unreasonable beliefs about how the process will play out.

Each of these considerations pays a role in determining the process for divorce (aka dissolution of marriage) or legal separation in Kentucky. 

Why do one of the spouses have to reside or be stationed in Kentucky for the 180 days immediately before filing the petition for divorce (dissolution of marriage) or legal separation?

Ky. Rev. Stat. § 403.140 states in relevant part: (1) The Circuit Court shall enter a decree of dissolution of marriage if: (a) The court finds that one (1) of the parties, at the time the action was commenced, resided in this state, or was stationed in this state while a member of the armed services, and that the residence or military presence has been maintained for 180 days next preceding the filing of the petition . . . [.] KRS 403.140(1)(a).

What is jurisdiction?

“Jurisdiction is an essential prerequisite to any judicial action. It is the "ubiquitous procedural threshold through which all cases . . . must pass prior to having their substance examined." Nordike v. Nordike, 231 S.W.3d 733, 737 (Ky. 2007).” Fehr v. Fehr, 284 S.W.3d 149, 152 (Ky. Ct. App. 2009).

"The question of jurisdiction is ordinarily one of law..." Harrison v. Park Hills Bd. of Adjustment, 330 S.W.3d 89, 93 (Ky. App. 2011); (quoting Appalachian Regional Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53-54 (Ky.2007)) Maggi v. Maggi, No. 2013-CA-000377-MR, at *3 (Ky. Ct. App. Apr. 25, 2014).

What is subject matter jurisdiction?

It is called subject matter jurisdiction or "the court's power to hear and rule on a particular type of controversy." Nordike v. Nordike, 231 S.W.3d 733, 737 (Ky. 2007).

Subject matter jurisdiction of a dissolution action is automatically conferred to the family court via Kentucky Revised Statutes (KRS) 23A.100; KRS 403.140; Jeffrey v. Jeffrey, 153 S.W.3d 849 (Ky.App. 2004) Fehr v. Fehr, 284 S.W.3d 149, 152 (Ky. Ct. App. 2009)

"Subject matter jurisdiction cannot be waived or otherwise conferred by the parties. It either exists or it is absent." Fehr v. Fehr, 284 S.W.3d 149, 152 (Ky. App. 2008). 

What is personal jurisdiction?

Personal jurisdiction is "the court's authority to determine a claim affecting a specific person." Id. (citation omitted) Maggi v. Maggi, No. 2013-CA-000377-MR, at *2-3 (Ky. Ct. App. Apr. 25, 2014). 

“Personal jurisdiction in a dissolution action is conferred by KRS 403.140(1)(a), which requires a finding that one of the parties, at the time the action was commenced, resided (or stationed added by John Schmidt) in the state for 180 days immediately preceding the filing of the petition.” Maggi v. Maggi, No. 2013-CA-000377-MR, at *2-3 (Ky. Ct. App. Apr. 25, 2014).

How does one establish legal residence in Kentucky?

Does residence mean something different than domicile in Kentucky for the purpose of divorce / dissolution of marriage / legal separation?

The court held that "residence" and "domicile" are almost universally used interchangeably in statutes. Domicile in Kentucky is that place where a person has their fixed, permanent home, and to which they have, whenever absent, the intention of returning and from which they have no present intention of moving. St. John v. St. John, 291 Ky. 363, 366 (Ky. Ct. App. 1942). 

How do I establish residence or a domicile in Kentucky for divorce / dissolution of marriage / legal separation?

It is further universally held that in order to acquire a domicile all that is necessary is residence in the new locality and an intention to remain there, accompanied by an intention to abandon the old domicile. As it has been frequently expressed, there must be a concurrence of the fact and the intent, the factum and the animus manendi. St. John v. St. John, 291 Ky. 363, 366 (Ky. Ct. App. 1942). 

What proof do I need to show that I have established residence or a domicile in Kentucky for divorce / dissolution of marriage / legal separation?

Courts often look to see if a person has changed their voter registration to Kentucky, whether they voted in Kentucky, whether their minor child(ren) live in Kentucky, leased or bought a residence, utilities in their name, maintains bank accounts in Kentucky, has an incorporated business in Kentucky, their passport lists Kentucky as their "abode", their last will and testament and power of attorney assert that they are of Kentucky, Kentucky driver's license, etc. as evidence of a residence in the new locality and an intention to remain there, accompanied by an intention to abandon the old domicile. Finance v. Slagel, 253 S.W.3d 74, 76 (Ky. Ct. App. 2008).

What if I'm a service member stationed assigned to a military post?

Does a service member in the United States Armed Forces have the right to acquire a legal residence in a locality to which he has been assigned?

Yes, the right of a soldier to acquire a legal residence in a locality to which he has been assigned cannot be doubted. 28 C. J. S. 418, Domicile, Sec. 12; Matter of Cunningham, 45 Misc. 206, 91 N.Y. S. 974; Matter of Grant's Estate, 83 Misc. 257, 144 N.Y. S. 567; Percy v. Percy, 188 Cal. 765, 207 P. 369. St. John v. St. John, 291 Ky. 363, 365 (Ky. Ct. App. 1942)

What if one or both of us is / are a service member in the United States Armed Forces on land ceded by a state to the federal government like Ft. Knox or Ft. Campbell?

The rule holds good even though the soldier is assigned to a military post on land ceded by a state to the federal government so that residence at the post would not constitute him a resident of the state. The text of 17 A. J. 634, based on the authority of Trigg v. Trigg, 226 Mo. App. 284, 41 S.W.2d 583, says:

"* * * if a person engaged in military service by animus ad factum establishes a residence near but outside the military post, with the purpose of making such residence the home of himself and his wife, he may acquire a domicile in such place." St. John v. St. John, 291 Ky. 363, 365 (Ky. Ct. App. 1942)

As a service member in the United States Armed Forces can I lose my residence if I leave my post involuntarily under orders?

Having acquired a legal residence, it can only be lost or changed by the exercise of conscious volition on the part of the soldier, and the mere fact that he leaves his post involuntarily under army orders does not cause him to lose his actual or legal residence. Radford v. Radford, 82 S.W. 391, 26 Ky. Law Rep. 652. St. John v. St. John, 291 Ky. 363, 365-66 (Ky. Ct. App. 1942)

Do you or your spouse believe the marriage is irretrievably broken with no hope of reconciliation?

What is one spouse does not believe the marriage is irretrievably broken with no hope of reconciliation?

The court may order a conciliation conference after the hearing. Ky. Rev. Stat. § 403.170

Did any children who are minors come from the union of you and your spouse or did you and your spouse adopt any children who are minors?

If so, then the 60 day clock starts once “sixty (60) days have elapsed from the date of service of summons, the appointment of a warning order attorney or the filing of an entry of appearance or a responsive pleading by the defendant, whichever occurs first.” Ky. Rev. Stat. § 403.044. The 60 days is the minimum in a contested divorce / dissolution of marriage / legal separation. The next question is usually, "How long will it take if 60 days is the minumum?" I can only say that it is possible to dsicuss a plan, pursue it aggressively, try to anticipate what the other side will do to prolong the case, and work hard to bring it to conclusion if a quick resolution is what you seek. Quick in most cases is many months not many weeks.

During the 60 day waiting period, you, your spouse, and each school aged child will attend separate Families in Transition or Parent's Education Classes (see my blog Families in Transition (FIT) Bullitt County, Hardin County, Jefferson County Frequently Asked Questions and Schedule for 2022). You will provide proof of completion which we will file with the Court.

Is one of the spouses pregnant?

Is the spouse pregnant by the husband? If so, an acknowledgement of paternity affidavit may be sufficient, but it remains up to the judge on how they want to proceed.

Is the spouse pregnant by another man? If so, a three-party affidavit of paternity may need to be provided to the court and then it remains up to the judge on how they want to proceed. The three-party affidavit usually includes:

  1. A declaration in authentic form by the husband or former husband presumed to be the father of the child that he is not the father of the child.
  2. A declaration in authentic form by the biological father that he is the father of the child and that a certified report of blood or tissue sampling indicates by a ninety-nine and nine-tenths percentage point threshold probability that he is the biological father of the child.
  3. A declaration in authentic form by the mother, husband or former husband presumed to be the father of the child, and the biological father of the child that each understands the form and has executed it voluntarily, and that each has received written notice of the consequences of executing the affidavit.

Usually, however, the practice is to wait until the child is born to determine paternity so the judge has the complete picture.

Have you and your spouse lived without sexual cohabitation for at least 60 days?

Generally speaking, "sexual cohabitation" is widely understood but the court characterizes it as where the spouses “enjoy some of the marital benefits including sexual(ly)” living together. Kleet v. Kleet, 264 S.W.3d 610, 618-19 (Ky. Ct. App. 2008). It is possible to stay married, just live together where you and your spouse continue to fool around with each other. 

Can we live in the same dwelling (aka house, apartment, etc) or do we need live in different dwellings?

The law (aka statute) says in Ky. Rev. Stat. § 403.170 that “No decree shall be entered until the parties have lived apart for 60 days. Living apart shall include living under the same roof without sexual cohabitation”; therefore, spouses may live in the same dwelling so long as they do not have a sexual relationship for 60 days.

When does the 60 day clock start?

When there are no minor children of the divorcing parties, then the court can take testimony and enter the decree as soon as the parties lived apart without sexual cohabitation for 60 days.

When minor children of the divorcing parties are involved, except for necessary temporary motions, "no testimony . . . shall be taken or heard before sixty (60) days have elapsed from the date of service of summons, the appointment of a warning order attorney or the filing of an entry of appearance or a responsive pleading by the defendant, whichever occurs first.” Ky. Rev. Stat. § KRS 403.044

The legislature explained the reason for the additional delay when minor children of the divorcing parties are involved when it said the Chapter is intended to "[s]trengthen and preserve the integrity of marriage and safeguard family relationships . . . ." KRS 403.110(1) and another purpose was to "[m]itigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage . . . ." KRS 403.110(3)Reece v. Mason, No. 2018-CA-000222-MR, at *14 (Ky. Ct. App. Oct. 11, 2019)

Do you or your spouse want to stay on the other spouse's insurance after the decree is entered?

If so, then you may want to consider legal separation which allows you to remain on your spouse's insurance.

Are assets being hidden?

In that case, call my office at (502) 509-1490 to make an appointment. We zealously represent our clients and there are steps we can take to protect you and to lock up the assets and prevent dissipation of the marrital estate.

Shepherdsville Divorce & Family Law Attorney

If you’re contemplating a divorce, the Law Offices of John Schmidt & Associates is here to help - we're here for you. We have the ability to be as persuasive and as aggressive as you want as the situation demands. We like to get results quickly and solve your problem(s), but you are the client and you get to decide how aggressively you want us to pursue solutions.

We will use our experience in resolving child custody battles and other many types of family law matters to benefit you. Our office is conveniently located in Shepherdsville, but we are also proud to serve the surrounding legal communities of Louisville, Elizabethtown, Jeffersontown, Mount Washington, and Radcliff, Kentucky. Call today to schedule a free meeting and ensure sure that you know facts from fiction.

Finding a Good Lawyer

One good way to find a lawyer is to check out their online recommendations, ask friends, acquaintances, or other lawyers and attorneys for referrals and then interview the candidates. You can call my office at 502-509-1490 to schedule a consultation to discuss your options or set an appointment here: https://www.johnschmidtlaw.com/schedule-appointment/

Let Our Experienced Team Help

If you’re facing divorce, custody, grandparent's rights, paternity, adoption, criminal charges, personal injury, or need deeds or wills prepared in or around Shepherdsville or Shelbyville or Taylorsville or Radcliff or Elizabethtown or Louisville, Kentucky, rely on our team at the Law Offices of John Schmidt & Associates. We will fight aggressively to help you protect your rights with the goal of obtaining the most favorable outcome. Schedule an appointment here: https://www.johnschmidtlaw.com/schedule-appointment/

 


Recent Posts