Family Law FAQ

Q: What is the difference between marital property and non-marital property?

Generally speaking, all property you or your spouse acquire during the marriage is marital property.  Being labeled “marital property” means it is subject to division in a divorce.  There are many important exceptions to this, such as property you inherit or property you receive as gift.  Those assets, along with the assets you had prior to your marriage, are generally considered non-marital property.  Unlike marital property, non-marital property is not divided or redistributed in a divorce.  It’s important to note that how a property is titled – i.e., whose name it is in – does not determine what happens to it in a divorce.  A prenuptial agreement can also change or override these rules. 

Every situation is unique, and some assets – for example, a house you own both before and during your marriage – can be partly marital and party non-marital.  Characterizing these assets and determining their value are two the most important things a divorce attorney can do for you.  If you have concerns about how your assets could be handled during a divorce, you should consult an attorney.   

Q: How do I apply for an Emergency Protective Order?

A: An Emergency Protective Order (EPO) is issued by a Judge in response to an allegation of violence. An EPO is intended to protect the individual - and his/her child, if necessary - from further acts of violence from the offending party. All courts must provide twenty-four (24) hour access to apply for an EPO. Any family member or member of an unmarried couple who is a Kentucky resident or has fled to Kentucky to escape domestic violence and abuse may file a verified petition in the county in which he/she resides. The individual who desires to obtain an EPO - called the "Petitioner" - must fill out a detailed affidavit describing the actions and behavior of the person who placed his/her physical or mental well-being at risk. After this affidavit is submitted to the Judge, he/she will issue the EPO or deny the request. If the EPO is issued, both parties will receive a copy of the EPO and the Court will schedule a court date.

The Kentucky General Assembly recently extended these protections to victims of dating violence and stalking.  These changes have greatly expanded the number of people who can apply for protection.  If you are uncertain whether you qualify, consult an attorney familiar with these changes. 

Q: Can the Court order my spouse to pay my attorney's fees?

A: From time to time, the Court may order a party to pay a reasonable amount for the costs incurred by the other party, including attorney's fees, to maintain or defend a divorce, custody, or related action. The Court shall determine whether such an Order is appropriate after considering the financial resources of each party.

Q: How is child support calculated?

A: Child support in Kentucky is based upon the parties' incomes. Kentucky Child Support Guidelines help determine how much child support is appropriate for a particular case. The goal of child support is to allow a child to maintain the same financial situation he/she would be if the parents had remained in one household. Expenses such as work-related child-care and payment for the child's health insurance premiums are also taken into account to calculate the appropriate obligation via the Child Support Worksheet.

The Court or parties may also "deviate" from the Child Support Guidelines, which means that a party may pay either more or less than the amount calculated in the Child Support Worksheet.  This is increasingly common as parents more often share equal time with their children and/or make arrangements for the children’s expenses outside of traditional child support. 

Q: Am I entitled to maintenance (alimony)?

A: Maintenance, which was previously called alimony, is financial support paid from one party to the other party. The Court may award maintenance where one party: 1) lacks sufficient property to provide for his/her reasonable needs; and is unable to support himself or herself 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.

If the Court finds that a party is entitled to an award of maintenance, the Court will calculate the appropriate amount and duration of such maintenance by considering: (1) the financial resources of the party seeking support; (2) the time needed to complete an education to gain employment; (3) the standard of living while married; (4) the length of the marriage; (5) the age and health condition of the parties; and (6) the ability of the spouse from whom maintenance is sought to meet his/her needs while also meeting those of the spouse seeking maintenance.

The Court may order maintenance during the divorce proceedings and/or after the entry of a divorce decree. Additionally, the parties may agree that neither party will receive maintenance or may specify the amount and duration for a maintenance obligation.

Q: What is the difference between sole and joint custody?

A: Custody dictates only which party - or parties - has decision-making power for the child with respect to major life decision, including but not limited to healthcare, education, and religion. Sole custody means that one party possesses the decision-making power for these important life decisions. Joint custody means that the parties are expected to work together to determine and agree upon the major life decisions for a child.

How often a child sees each parent is called visitation or timesharing, and it is separate issue from deciding custody itself. 

Q: I'm getting married. Do I need a prenuptial agreement?

A: A prenuptial agreement - sometimes referred to as a premarital agreement - is a written contract signed by two individuals in contemplation of marriage. Prenuptial agreements address and resolve a variety of issues, and are particularly beneficial where a party:

• owns an interest in a business or professional practice;
• seeks to set, establish, or limit spousal maintenance (alimony) in the event of divorce;
• desires to distribute property a certain way upon his/her death;
• has prior-born minor children and desires to preserve certain inheritance(s);
• wants to remain free of the other party's previously-incurred financial obligations;
• desires to protect his/her financial interests and assets in the event of divorce.