Asset Division

Asset division is an aspect of every divorce. Generally in a divorce, there are items which must be assigned to the respective owner and others that must be somehow divided because they are jointly owned by both parties.
The asset division issues in a divorce is a three-step process:

  1. The court characterizes each item of property as marital or non-marital
  2. The court assigns each party's non-marital property to that party
  3. The court equitably divides the marital property between the parties 

In Kentucky, it is presumed that all property acquired during the marriage is marital unless it falls within a few narrow statutory exceptions.

An attorney can assist in the asset division issues of the divorce and can ensure all non-marital property is retained and to obtain the best possible distribution of marital property.

The most contentious property-related issue in a divorce involves classifying certain property as marital or non-marital. The court must return each spouse's non-marital property at divorce, so a determination that certain property is non-marital guarantees the return to the owning spouse. However, often property takes a different form throughout the duration of a marriage. For example a spouse's inheritance or pre-marriage savings may be used to purchase or pay a down payment on a home. In that case, the property ownership must be traced so they could receive the car or that part of the home assets as his/ her non-marital property. Tracing is a fact process and will involve research into the parties' finances and supporting documentation.

The other hotly litigated property-related issue is the equitable division of marital property. In Kentucky, the court must divide marital property "in just proportions". It may consider "all relevant factors", but marital misconduct/adultery may not be considered. Kentucky decisions have routinely held that a property division "in just proportions" does not mean an equal, or 50-50 division. Because the division need not be equal, attorneys will argue for a division that is better for their client given "all relevant factors." The court is to consider, for example, the "[c]ontribution of each spouse to acquisition of the marital property," so an attorney may argue his or her client contributed more and is therefore entitled to more at divorce.

In addition to these issues, property division and settlement of the marital estate also involves the division of debts. Furthermore, there may be tax consequences to a particular property division arrangement. That is why it is important to discuss a proposal with a good attorney and/or experienced accountant.

Maintenance (Alimony)

Maintenance, also known as alimony or spousal support, is a money award provided by one spouse after their marriage terminates. The goal of maintenance is to ensure that each spouse does not have post-marital financial circumstances radically different than that of their former spouse. Sometimes this involves maintaining the standard of living established during the marriage. In other times, this may result in maintenance being awarded for so long a time as to allow the recipient to acquire the education or job skills to be self-supporting.

Maintenance may only be awarded if the party requesting it:

  1. Lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs; and
  2. Is unable to support himself or herself through appropriate employment or is the custodial parent of a child whose conditions or circumstances require extra care and it is appropriate for that spouse not to seek employment outside the home.
  3. Both of these conditions must be found for maintenance to be appropriate. Such requirements incorporate legal standards ("sufficient property", "reasonable needs", "appropriate employment") and therefore invite the family judge to use a fair amount of discretion. Furthermore, the party seeking maintenance has the burden of proof in proving he or she is entitled to an award.

Maintenance is utilized to provide a former spouse with a standard of living close or equivalent to that experienced during the marriage or to afford the opportunity to "rehabilitate" himself or herself to become self-supporting. Temporary maintenance may be requested between the time the petition for dissolution or legal separation is filed and when the final decree terminating the marriage is entered. A "permanent" maintenance award can then begin when the final decree is entered.

Maintenance is often awarded in the following circumstances:

  1. When the parties had a lengthy marriage and the requesting spouse has fewer economic prospects due to age, work experience, health condition, etc.
  2. When the parties enjoyed a high standard of living during the marriage and the paying spouse is financially capable of continuing this for the requesting spouse after the marriage ends
  3. When the requesting spouse has a low education level or little work experience 
  4. When the requesting spouse has sought positions in line with his or her education or training, but none are available or do not provide a sufficient salary 
  5. When the requesting spouse has to take care of a child or children, especially those with medical problems or developmental issues, making it difficult to also hold a job 
  6. When the requesting spouse is seriously ill or at least presently injured 
  7. When the requesting spouse contributed to the paying spouse's high earning capacity (such as by supporting a spouse who obtained a professional degree or license) 
  8. When the paying spouse has a lot of marital and non-marital (property owned individually before the marriage, inherited property, etc.) assets to provide for his or her own needs 
  9. When the paying spouse is voluntarily underemployed (employed at a job paying far less than his or her earning capacity) 
  10. When the paying spouse has intentionally reduced his or her income, such as through an "unreasonable" early retirement

Occasionally, after the entry of a maintenance award, it becomes necessary to seek an increase or decrease in the award. Motions must also be filed with the court to either terminate the award entirely or seek its enforcement.

If you wish to talk with one of our attorneys call Sutton Law at 859-578-6600 or contact us online to discuss your legal matter and learn about your options.
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