CHAPTER 401 Change of Name

401.010. Adult may have name changed by District Court.

Any person at least eighteen (18) years of age may have his or her name changed by the District Court of the county in which he or she resides. If he or she resides on a United States Army post, military reservation, or fort, his or her name may be changed by the District Court of any county adjacent thereto.

History. 3717: amend. Acts 1964, ch. 155, § 1; 1968, ch. 100, § 12; 1968, ch. 200, § 9; 1974, ch. 66, § 1; 1974, ch. 386, § 88; 1976 (Ex. Sess.), ch. 14, § 395, effective January 2, 1978; 2013, ch. 89, § 1, effective March 22, 2013.

NOTES TO DECISIONS

1.In General.

This section does not change or substantially limit the common-law right of persons to change their names, its primary effect being the requirement that a permanent record be made of the new change. Winkenhofer v. Griffin, 511 S.W.2d 216, 1974 Ky. LEXIS 479 ( Ky. 1974 ).

Person changing his name is not required to give notice to or obtain consent from persons bearing the proposed new name. Winkenhofer v. Griffin, 511 S.W.2d 216, 1974 Ky. LEXIS 479 ( Ky. 1974 ).

2.Legislative Intent.

This chapter is not intended to abrogate the common law, but merely to insure that a permanent record is made of the name change. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

Opinions of Attorney General.

A name change by adoption is a special procedure in the Circuit Court and has no connection with name changing under this section. OAG 65-650 .

This section is not an exclusive method for use of persons desiring to change their names and the statute does not in any way militate against assertion of a married woman’s common-law right to change her first name without legal proceedings. OAG 72-27 .

As this section is merely permissive, expanding the common law rather than providing an exclusive method for changing a name, it is not unconstitutionally discriminatory in its exclusion of married women from its provisions (opinion prior to 1974 amendment). OAG 72-432 .

Although her spouse objects, a married woman who is at least eighteen and a resident of the county can petition the county court for a first name and/or middle name change, including adding a given name never used before, where it appears to the court that the name change would not interfere with the rights of others and is not being done for a fraudulent purpose. OAG 74-349 .

By the common-law method, a married woman can change her first and/or middle name without any statutory or court proceedings, including adding a given name never used before, and she can document her personal unilateral action by newspaper publication, business or personal letters, or a written statement placed in her lock box or private papers. OAG 74-349 .

The action taken by the legislature in amending this section to delete “who is not a married woman” and in enacting KRS 116.085 clearly indicates that it intended that a married woman may use the permissive statute to change her surname from that of her husband to her maiden surname. OAG 74-902 .

A convicted felon whose civil rights have not been restored may seek a change of name and need not place his felony conviction on his petition. OAG 76-126 .

Name change order records must be kept in the order book of the District Court. OAG 78-454 .

Research References and Practice Aids

Cross-References.

Divorce decree may restore maiden name to wife, KRS 403.230 .

Motor vehicle operator changing name must notify transportation cabinet, KRS 186.540 .

Northern Kentucky Law Review.

Comments, Equal Protection of the Sexes in Kentucky: The Effect of the Hummeldorf Decision on a Woman’s Right to Choose Her Surname, 9 N. Ky. L. Rev. 475 (1982).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Change of Name — Adult or Minor (AOC 295), Form 265.01.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Prohibited Marriage), Form 252.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Marriage and Cohabitation, § 251.00.

401.020. Parents or guardian may have child’s name changed in District, Family, or Circuit Court.

Both parents, provided both are living, or one (1) parent if one (1) is deceased, or if no parent is living, the guardian, may have the name of a child under the age of eighteen (18) changed by the District Court, or if the Family Court or Circuit Court has a case before it involving the family, the Family Court of a county with a Family Court, or the Circuit Court of a county without a Family Court of the county in which the child resides. However, if one (1) parent refuses or is unavailable to execute the petition, proper notice of filing the petition shall be served in accordance with the Rules of Civil Procedure. If the child resides on a United States Army post, military reservation, or fort, his or her name may be changed by the District Court, or the Family Court of a county with a Family Court, or the Circuit Court of a county without a Family Court of any county adjacent thereto.

History. 3718: amend. Acts 1964, ch. 155, § 1; 1968, ch. 100, § 13; 1974, ch. 386, § 89; 1976 (Ex. Sess.), ch. 14, § 396, effective January 2, 1978; 1980, ch. 259, § 27, effective July 15, 1980; 2013, ch. 89, § 2, effective March 22, 2013.

NOTES TO DECISIONS

1.In General.

Where a mother petitioned court to change the surname of her infant daughter to that of her former husband who was not the child’s father, the former husband was not entitled to notice nor was his consent necessary to the proposed change. Winkenhofer v. Griffin, 511 S.W.2d 216, 1974 Ky. LEXIS 479 ( Ky. 1974 ).

A divorced and remarried mother’s petition to change her child’s surname to a hyphenated name consisting of both the father’s surname and her new surname did not show the required substantial grounds for doing so against the father’s wishes. Leadingham v. Smith, 56 S.W.3d 420, 2001 Ky. App. LEXIS 698 (Ky. Ct. App. 2001).

2.Standing.

Former husband of mother who changed the surname of her daughter who was not the former husband’s child had no standing in court to seek a further name change for the child since he was neither the father nor the guardian of the child. Winkenhofer v. Griffin, 511 S.W.2d 216, 1974 Ky. LEXIS 479 ( Ky. 1974 ).

3.Injunction.

Although a mother may possess the statutory right to change her child’s name, it does not follow that a Circuit Court may not enjoin her exercise of that right if it has jurisdiction to do so as an incident of its statutory jurisdiction to determine custody matters attendant upon a marriage dissolution. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

Since the Circuit Court is vested with continuing jurisdiction of custody matters attendant upon the dissolution of a marriage, and because KRS Chapter 403 mandates that the court safeguard family relationships and mitigate potential harm to parents and children, a Circuit Court has jurisdiction to enjoin a mother from changing a child’s name to his stepfather’s name, otherwise, an unsubstantial statutory right to apply for a name change would take precedence over an express statement of public policy favoring preservation of family relationships. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

4.— Test.

In determining whether to issue an injunction against a mother’s seeking to change the name of her children from that of their natural father the court should use the “best interest” test of subsection (1) (now subsection (2)) of KRS 403.270 . Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

5.— Hearing.

Only after a full hearing, at which all interested parties are given an opportunity to be heard, can the court determine if the proposed name change is or is not in the best interest of the child; such a hearing is mandated by the requirements of due process. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

6.Exclusive Jurisdiction.

The General Assembly has made it clear that the change of name of a child by a parent is not a “custody matter” for the purposes of KRS 403.270 . Exclusive jurisdiction for the change of name of a child is placed by this section in the District Court. Blasi v. Blasi, 648 S.W.2d 80, 1983 Ky. LEXIS 233 ( Ky. 1983 ).

A Circuit Court did not have the jurisdiction to require that a divorced parent petition a District Court in order to change the name of her infant child. Blasi v. Blasi, 648 S.W.2d 80, 1983 Ky. LEXIS 233 ( Ky. 1983 ).

7.Venue.

Where paternity was established in Hart County, the child’s significant contacts were all in that county, the pediatrician was located there, and where at the time of the filing of the petition requesting joint custody, a schedule of visitation and the change of child’s name, it appeared that the mother and the child were living in Hart County and that was the child’s permanent residence, proper venue was in Hart County. Ash v. Thompkins, 914 S.W.2d 788, 1996 Ky. App. LEXIS 13 (Ky. Ct. App. 1996).

Opinions of Attorney General.

Both the mother and the appointed guardian must file a petition for a name change. OAG 70-662 .

The word “guardian” refers to the statutory guardian as treated in KRS Chapter 387. OAG 70-662 .

Either the father or the mother may seek the name change of the child and this section does not require the petitioning parent to secure the consent of or give notice to the other parent or any other person. OAG 75-94 .

This section is not the exclusive method of changing a minor’s name and a parent or guardian of a child may change the child’s name without resort to legal proceedings by simply making a public declaration of the new name. OAG 78-93 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Crome, Domestic Relations, 69 Ky. L.J. 581 (1980-81).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context Parent and Child, § 256.00.

401.030. Information to be entered on order book of court.

The original name, age, and place of birth, the name to which the change is made, and the names of the infant’s father and mother, if known, and of the person on whose motion the change is made shall be entered on the order book of the District Court, Family Court, or Circuit Court in which the action was brought and is authorized to do so pursuant to KRS 401.020 .

History. 3719: amend. Acts 1976 (Ex. Sess.), ch. 14, § 397, effective January 2, 1978; 2013, ch. 89, § 3, effective March 22, 2013.

401.040. Certification of order for name change — Index kept by county clerk.

  1. If the District Court, Family Court, or Circuit Court, as authorized by KRS 401.020 , orders any person’s name to be changed under this chapter, a copy of the order shall be certified by the clerk of that court to the county clerk, for record.
  2. The county clerk shall keep an alphabetical index for each book of records, referring to the page on which each person’s name change appears, and giving the name from and to which it is changed.

History. 3720: amend. Acts 1976 (Ex. Sess.), ch. 14, § 398, effective January 2, 1978; 2013, ch. 89, § 4, effective March 22, 2013.

CHAPTER 402 Marriage

402.005. Definition of marriage.

As used and recognized in the law of the Commonwealth, “marriage” refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.

History. Enact. Acts 1998, ch. 258, § 4, effective July 15, 1998.

Compiler's Notes

On June 26, 2015, the United States Supreme Court in Obergefell v. Hodges, 192 L. Ed. 2d 609, held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

NOTES TO DECISIONS

1.Constitutionality.

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (U.S. 2015).

Ky. Rev. Stat. § 402.005 was not unconstitutional under the Fourteenth Amendment where none of the theories presented, i.e., originalism, rational basis review, animus, fundamental rights, suspect classifications, or evolving meaning, made the case for constitutionalizing the definition of marriage and for removing the issue from the hands of state voters. DeBoer v. Snyder, 772 F.3d 388, 2014 FED App. 0275P, 2014 U.S. App. LEXIS 21191 (6th Cir. Mich. 2014), rev'd, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (U.S. 2015).

To the extent Ky. Rev. Stat. Ann. §§ 402.005 and 402.020(1)(d) and Ky. Const. § 233A denied same-sex couples the right to marry in Kentucky, they violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they were void and unenforceable. Love v. Beshear, 989 F. Supp. 2d 536, 2014 U.S. Dist. LEXIS 89119 (W.D. Ky. 2014 ).

Cited in:

Pinkhasov v. Petocz, 331 S.W.3d 285, 2011 Ky. App. LEXIS 18 (Ky. Ct. App. 2011).

Opinions of Attorney General.

State universities may extend employee health insurance coverage to “domestic partners” or any other persons, but may not condition such benefits upon a legal status defined in a manner substantially similar to that of marriage, since this would constitute the recognition of such a legal status in contravention of Ky. Const. § 233A. If domestic partnership is not defined in terms of a legal status similar to marriage, but is defined in a more inclusive manner, extending such benefits would be constitutional. OAG 2007-04 .

Research References and Practice Aids

Cross-References.

Marriage between one man and one woman only marriage valid or recognized in Kentucky, see Ky. Const. § 233a.

Void Marriages

402.010. Degree of relationship that will bar marriage.

  1. No marriage shall be contracted between persons who are nearer of kin to each other by consanguinity, whether of the whole or half-blood, than second cousins.
  2. Marriages prohibited by subsection (1) of this section are incestuous and void.

History. 2096: amend. Acts 1946, ch. 124.

NOTES TO DECISIONS

1.Incestuous Marriage.

Incestuous marriages in the direct line or between brothers and sisters are not considered valid in Kentucky regardless of where they were performed. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

A marriage between a man and his niece is incestuous. Baker v. Thomas, 272 Ky. 605 , 114 S.W.2d 1113, 1938 Ky. LEXIS 170 ( Ky. 1938 ).

Marriage between father-in-law and daughter-in-law is incestuous and void. Louisville & N. R. Co. v. Turner, 290 Ky. 602 , 162 S.W.2d 219, 1942 Ky. LEXIS 470 ( Ky. 1942 ).

Marriage of first cousins by consanguinity was void ab initio and subject to attack after the death of one of the parties. Ex parte Bowen, 247 S.W.2d 379, 1952 Ky. LEXIS 694 ( Ky. 1952 ).

The provisions of KRS 403.120 do not apply primarily to incestuous marriages under this section but rather encompasses all void and prohibited marriages, such as a bigamous marriage. Ferguson v. Ferguson, 610 S.W.2d 925, 1980 Ky. App. LEXIS 410 (Ky. Ct. App. 1980).

2.Whole or Half-Blood.

No distinction is made between sisters of full and half-blood. Burdue v. Commonwealth, 144 Ky. 428 , 138 S.W. 296, 1911 Ky. LEXIS 624 ( Ky. 1911 ).

3.Father and Daughter-in-Law.

A marriage between a woman and the father of her deceased husband is incestuous. Nicely v. Howard, 195 Ky. 327 , 242 S.W. 602, 1922 Ky. LEXIS 333 ( Ky. 1922 ).

4.Invalidity After Death.

A marriage which is not in the direct line or between brother and sister cannot be invalidated after the death of one of the parties, in a collateral proceeding. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

Cited:

Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ); Bedinger v. Graybill’s Ex’r & Trustee, 302 S.W.2d 594, 1957 Ky. LEXIS 202 ( Ky. 1957 ).

Opinions of Attorney General.

A marriage between a niece and an uncle, though valid in the country where it was celebrated, would not be recognized in Kentucky on the ground that it violates the public policy expressed in this section. OAG 68-346 .

A marriage between first cousins will not be recognized in Kentucky even if it is consummated in another state. OAG 71-78 .

Marriages between first cousins are prohibited in Kentucky with no exceptions. OAG 71-78 .

A marriage between first cousins once removed would be incestuous and void under this section. OAG 71-480 .

This chapter does not require the specific data about divorce judgments in any particular. OAG 78-431 .

The difference between this section and KRS 530.020 is that the criminal statute is designed to protect against blood relationships and the adoption and stepparent situation, while the marriage statute covers only the blood relationships. OAG 79-416 .

A marriage between first cousins is incestuous and void ab initio pursuant to this section, and where the issuance of the marriage license and the compiling of the marriage records were all done in good faith by the county clerk, the clerk had no statutory authority to alter the marriage record in any respect, even though the marriage was void ab initio. OAG 80-300 .

State universities may extend employee health insurance coverage to “domestic partners” or any other persons, but may not condition such benefits upon a legal status defined in a manner substantially similar to that of marriage, since this would constitute the recognition of such a legal status in contravention of Ky. Const. § 233A. If domestic partnership is not defined in terms of a legal status similar to marriage, but is defined in a more inclusive manner, extending such benefits would be constitutional. OAG 2007-04 .

Research References and Practice Aids

Cross-References.

Change of name, KRS ch. 401.

Descent and distribution, KRS Ch. 391.

Dower and curtesy, KRS Ch. 392.

Incest, KRS 530.020 .

Legitimacy of children of void marriage, KRS 391.100 .

Marriage of testator does not revoke will, KRS 394.090 .

Statute of frauds, agreement in consideration of marriage, KRS 371.010 .

Kentucky Law Journal.

Whiteside, Domestic Relations — Recent Kentucky Developments, 1950-1955, 44 Ky. L.J. 60 (1955).

Whiteside, Ten Years of Kentucky Domestic Relations Law, 1955-1965, 54 Ky. L.J. 206 (1966).

Miller, Kentucky’s New Dissolution of Marriage Law, 61 Ky. L.J. 980 (1973).

Comments, That Was No Wife, That Was My Lady: Is Marvin v. Marvin Appropriate for Kentucky? 66 Ky. L.J. 707 (1977-1978).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Northern Kentucky Law Review.

Royce and Waits, The Crime of Incest, 5 N. Ky. L. Rev. 191 (1978).

Treatises

Treatises

Petrilli, Kentucky Family Law, Capacity of Parties to Marry, § 4.6.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.4, Form 2.12.

Petrilli, Kentucky Family Law, Marriage in General, §§ 1.3, 1.4b.

402.020. Other prohibited marriages.

  1. Marriage is prohibited and void:
    1. With a person who has been adjudged mentally disabled by a court of competent jurisdiction;
    2. Where there is a husband or wife living, from whom the person marrying has not been divorced;
    3. When not solemnized or contracted in the presence of an authorized person or society;
    4. Between members of the same sex;
    5. Between more than two (2) persons; and
    6. Except as provided in KRS 402.210 , with a person who at the time of marriage is under eighteen (18) years of age.
  2. Subsection (1)(f) of this section shall not apply to a lawful marriage entered into in the Commonwealth of Kentucky prior to July 14, 2018, or to a lawful marriage in another state or country prior to the parties’ residence in the Commonwealth of Kentucky.

HISTORY: 2097: amend. Acts 1960, ch. 8, § 1; 1966, ch. 72; 1968, ch. 200, § 10; 1974, ch. 49, § 6; 1974, ch. 386, § 90; 1976 (Ex. Sess.), ch. 14, § 399, effective January 2, 1978; 1978, ch. 92, § 12, effective June 17, 1978; 1982, ch. 141, § 113, effective July 1, 1982; 1988, ch. 212, § 1, effective July 15, 1988; 1998, ch. 122, § 1, effective March 26, 1998; 1998, ch. 258, § 2, effective July 15, 1998; 2018 ch. 36, § 1, effective July 14, 2018.

Compiler's Notes.

This section was amended by § 124 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

On June 26, 2015, the United States Supreme Court in Obergefell v. Hodges, 192 L. Ed. 2d 609, held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

NOTES TO DECISIONS

Cited:

1.Construction.

This section and KRS 402.030 and 402.250 together make clear the legislative intent that marriages by persons under the required age are not void but only voidable. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

2.Mental Incompetency.

In determining whether one has mental capacity sufficient to contract a valid marriage, the test usually applied is whether there is a capacity to understand the nature of the contract and the duties and responsibilities which it creates. Gellert v. Busman's Adm'r, 239 Ky. 328 , 39 S.W.2d 511, 1931 Ky. LEXIS 781 ( Ky. 1931 ).

Marriage is a civil status arising out of a civil contract and in order to be valid must be the result of an agreement of minds. Johnson v. Sands, 245 Ky. 529 , 53 S.W.2d 929, 1932 Ky. LEXIS 621 ( Ky. 1932 ).

The marriage of an incompetent is void from its inception. Johnson v. Sands, 245 Ky. 529 , 53 S.W.2d 929, 1932 Ky. LEXIS 621 ( Ky. 1932 ).

Evidence supported finding of chancellor that aged man, who died two days after marriage, was physically and mentally competent to marry. Johnson v. Sands, 276 Ky. 492 , 124 S.W.2d 774, 1939 Ky. LEXIS 550 ( Ky. 1939 ).

Where husband had been found incompetent in 1926, married in 1930 and restored as a person of sound mind in 1934 but evidence indicated husband lived normal life after the marriage, marriage was not void under Indiana statute almost identical with this section. Cook v. Cook, 243 S.W.2d 900, 1951 Ky. LEXIS 1176 ( Ky. 1951 ).

In an annulment proceeding, evidence of a determination of the husband’s incompetency under KRS 387.010 without description of the nature of such incompetency two years prior to the wedding, testimony of the committee that he believed the husband to be of unsound mind, and medical testimony that he was unsound five years before and three years after the wedding was not sufficient to overcome the presumption of a valid marriage where the presumption is supported by medical and lay testimony that the husband was mentally sound at the time of the marriage. Littreal v. Littreal, 253 S.W.2d 247, 1952 Ky. LEXIS 1072 ( Ky. 1952 ).

The marriage of an idiot or a lunatic violates the fundamental public policy of this state, and thus a marriage entered into by a Kentucky resident who is an idiot or lunatic in another state will not be recognized in Kentucky, even though such marriage was only voidable in the state where solemnized. Beddow v. Beddow, 257 S.W.2d 45, 1952 Ky. LEXIS 1152 ( Ky. 1952 ).

3.Duress.

Where a marriage ceremony is performed while the woman is under duress and has a living husband, the marriage is void and no judicial decree is needed to nullify it. Tarter v. Medley, 356 S.W.2d 255, 1962 Ky. LEXIS 94 ( Ky. 1962 ).

4.Husband or Wife Living.

A subsequent marriage during the lifetime of a prior undivorced spouse is absolutely null and void. Donnelly v. Donnelly's Heirs, 47 Ky. 113 , 1847 Ky. LEXIS 129 ( Ky. 1847 ) (decided under prior law).

Polygamous marriages are not considered valid in Kentucky regardless of where they were performed. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

A woman whose husband has been absent from the state for five years without being heard from is lawfully competent to enter into a marriage contract. Strode v. Strode, 66 Ky. 227 , 1867 Ky. LEXIS 174 ( Ky. 1867 ) (decided under prior law).

A subsequent marriage by person who has a husband or wife living at the time is void from its inception. Harris v. Harris, 85 Ky. 49 , 2 S.W. 549, 8 Ky. L. Rptr. 727 , 1887 Ky. LEXIS 12 ( Ky. 1887 ). See Barth's Adm'r v. Barth, 102 Ky. 56 , 42 S.W. 1116, 19 Ky. L. Rptr. 905 , 1897 Ky. LEXIS 74 ( Ky. 1897 ).

If one of the parties to a marriage is at the time the lawful wife or husband of another person, the marriage is void as between the contracting parties. Bates v. Meade, 174 Ky. 545 , 192 S.W. 666, 1917 Ky. LEXIS 227 ( Ky. 1917 ).

Even though defendant before marrying plaintiff advised him that she believed her first husband was dead but was not certain, and plaintiff said he would shield her from possible developments and promised that he would have his lawyers procure a quiet divorce for her if her first husband ever showed up, plaintiff after living with defendant for more than ten years was not barred from having the marriage declared bigamous and void and from avoiding any responsibility for her support. Rose v. Rose, 274 Ky. 208 , 118 S.W.2d 529, 1938 Ky. LEXIS 246 ( Ky. 1938 ).

Absence of spouse from state without communication for two years is not sufficient to raise presumption of divorce. Payne v. Payne's Adm'r, 290 Ky. 461 , 161 S.W.2d 925, 1942 Ky. LEXIS 428 ( Ky. 1942 ).

Remarriage by undivorced wife is bigamous. Louisville & N. R. Co. v. Turner, 290 Ky. 602 , 162 S.W.2d 219, 1942 Ky. LEXIS 470 ( Ky. 1942 ).

This section provides a marriage is void where there is a husband or wife living from whom the person marrying has not been divorced. Hurley v. Hurley, 298 Ky. 178 , 182 S.W.2d 652, 1944 Ky. LEXIS 872 ( Ky. 1944 ).

Where, in divorce action by A against B, it was adjudged that A and B had been legally married, and A was granted a divorce, B was entitled, in a subsequent action brought by him against C, to a declaratory judgment as to whether his marriage to C, prior to date of divorce judgment, was void under this section. Hurley v. Hurley, 298 Ky. 178 , 182 S.W.2d 652, 1944 Ky. LEXIS 872 ( Ky. 1944 ).

Bigamous marriage performed in Ohio was void both in Ohio and in Kentucky. Fields v. Commonwealth, 301 Ky. 551 , 192 S.W.2d 478, 1946 Ky. LEXIS 513 ( Ky. 1946 ).

In prosecution for carnal knowledge growing out of alleged bigamous marriage, proof of issuance of marriage license for first marriage, admissions by accused to witnesses that he was married, and the filing of a divorce action by accused against alleged first wife, shortly after time of second marriage, were sufficient to prove the first marriage, notwithstanding that there was no record of the first marriage having been performed. Fields v. Commonwealth, 301 Ky. 551 , 192 S.W.2d 478, 1946 Ky. LEXIS 513 ( Ky. 1946 ).

5.Presence of Authorized Person.

Marriages are void when not solemnized in the presence of an authorized person or society. Stewart v. Munchandler, 65 Ky. 278 , 1867 Ky. LEXIS 74 ( Ky. 1867 ) (decided under prior law).

All marriages not solemnized or contracted in the presence of an authorized person or society are absolutely void. Robinson v. Redd's Adm'r, 102 Ky. 354 , 43 S.W. 435 (1897). See Klenke v. Noonan, 118 Ky. 436 , 81 S.W. 241, 26 Ky. L. Rptr. 305 , 1904 Ky. LEXIS 58 ( Ky. 1904 ).

Evidence that minister had not obtained a license from county court of county in which marriage was performed was insufficient to invalidate marriage, where there was no proof that minister resided in that county or had not obtained a license from the county of his residence. Manning v. Street, 279 Ky. 253 , 130 S.W.2d 735, 1939 Ky. LEXIS 266 ( Ky. 1939 ).

6.Under Age.

A marriage contracted at a time when the male is under 16 (now 18) or the female under 14 (now 18) years of age is not voidable in an action by a next friend where it was entered into with parental consent or has been ratified by cohabitation after statutory age has been reached. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

Marriage of a Kentucky girl under 14 years of age is not against public policy; thus, where such a marriage was performed in a state in which it was valid, it was valid in Kentucky and the next friend of the girl was without authority to maintain an action for annulment. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

7.— Avoidance.

A marriage contrary to subdivision (5) (now subdivision (4)) of this section can be avoided only by an action brought by a next friend under KRS 402.030 , or by an action brought by the one under age under KRS 402.250 . Crummies Creek Coal Corp. v. Napier, 246 Ky. 569 , 55 S.W.2d 339, 1932 Ky. LEXIS 780 ( Ky. 1932 ).

Despite the fact that this section declares under age marriages “void,” these marriages are merely “voidable,” and the marriage is valid absent a court declaration to the contrary. Holbert v. West, 730 F. Supp. 50, 1990 U.S. Dist. LEXIS 1362 (E.D. Ky. 1990 ).

8.Validity.

A marriage valid where it takes place is valid everywhere except where it is against the public policy of the domiciliary state. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

Marriage of a person under 16 was voidable, not void, and thus, was not against Kentucky public policy; the denial of defendant’s request for an instruction under KRS 510.035 since he was married to the victim was error, and his convictions for third-degree rape were improper. However, defendant’s convictions for second degree rape as they related to the period preceding defendant’s marriage to the victim were proper. Robinson v. Commonwealth, 212 S.W.3d 100, 2006 Ky. LEXIS 298 ( Ky. 2006 ).

As a matter of law in Kentucky, a same-sex life partner is not the stepparent of his or her life partner’s biological child because same-sex marriages are void as against public policy, and “stepparent-like” adoptions are not recognized. S.J.L.S. v. T.L.S., 265 S.W.3d 804, 2008 Ky. App. LEXIS 282 (Ky. Ct. App. 2008).

To the extent Ky. Rev. Stat. Ann. §§ 402.005 and 402.020(1)(d) and Ky. Const. § 233A denied same-sex couples the right to marry in Kentucky, they violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they were void and unenforceable. Love v. Beshear, 989 F. Supp. 2d 536, 2014 U.S. Dist. LEXIS 89119 (W.D. Ky. 2014 ).

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (U.S. 2015).

9.Effect on Appointment of Administrator.

Where intestate decedent and widow had married six days prior to entry of final divorce decree between decedent and his prior wife, decedent’s son had no standing to attack validity of the marriage ten years later, since subsection (2) (b) of KRS 403.120 allows only parties to the marriage to attack it, and then only within one year of obtaining knowledge of a prohibitive condition; thus, the widow was properly appointed as administratrix of the estate under subsection (1) of KRS 395.040 , despite the fact that the bigamous marriage was void and prohibited under this section. Ferguson v. Ferguson, 610 S.W.2d 925, 1980 Ky. App. LEXIS 410 (Ky. Ct. App. 1980).

Cited:

Hatfield Campbell-Creek Coal Co. v. Adams, 275 Ky. 744 , 122 S.W.2d 787, 1938 Ky. LEXIS 506 ( Ky. 1938 ); Manning v. Street, 279 Ky. 253 , 130 S.W.2d 735, 1939 Ky. LEXIS 266 ( Ky. 1939 ); Board of Education v. Bentley, 383 S.W.2d 677, 1964 Ky. LEXIS 51 , 11 A.L.R.3d 990 ( Ky. 1964 ); Murphy v. Bowen, 756 S.W.2d 149, 1988 Ky. App. LEXIS 122 (Ky. Ct. App. 1988); Glidewell v. Glidewell, 790 S.W.2d 925, 1990 Ky. App. LEXIS 73 (Ky. Ct. App. 1990).

Opinions of Attorney General.

Consent of the parents to the marriage of minor children as provided by KRS 402.210 is not required in order for the county clerk to issue a marriage license, where a Circuit Judge has issued an order giving the parties, upon their application, permission to marry based on a finding that the boy is 17 years of age and the girl is 15 and pregnant. OAG 62-876 .

Where at the time a man married his second wife a suit for divorce from his first wife had been filed but the divorce was not yet granted, the second marriage was not valid even though the divorce was subsequently granted. OAG 62-904 .

An application by underage persons to a Circuit Judge for permission to marry should properly be made by a motion filed in the Circuit Court in an ex parte proceeding. OAG 63-986 .

Upon the basis of an affidavit from a doctor that the girl is pregnant, the Circuit Judge may in his discretion enter an order granting permission to marry and directing the county clerk to issue a marriage license to the parties. OAG 63-986 .

The pregnant female applicant for a marriage license should be a resident of the county in which the application is made. OAG 66-475 .

Subdivision (5) (now (1)3.) of this section is not applicable where the child is born prior to making the application for a marriage license. OAG 68-203 .

Except in a pregnancy situation involving imminent birth, the county judge (now county judge/executive) has no authority to waive the three-day waiting period. OAG 68-321 .

A county clerk should issue a license (provided other statutory requirements are met) to a male negro and a white female, since miscegenation statutes have been held unconstitutional by the Supreme Court of the United States as being in violation of United States Const., Amend. 14. OAG 68-368 .

If the male applicant is under the age of 18, no license can be validly issued except in cases of pregnancy, and the 1968 amendment to KRS 402.210 did not authorize the marriage of persons under the age of 18 even with the consent of the parent. OAG 68-529 .

This section prohibits and renders void the marriage of a male under 18 years of age except when the female is pregnant and the 1968 amendment to KRS 402.210 which lowered the age at which the consent of the parent is no longer required from 21 to 18 did not, by implication, repeal this section. OAG 68-529 .

Where a male under the age of 18 is married under a license issued with consent, as provided in KRS 402.210 , but the female was not pregnant and the permission of the Circuit Judge was not obtained pursuant to the provisions of this section, the marriage is, pursuant to the provisions of this section, void. OAG 69-189 .

This statute is broad enough to authorize a county judge (now county judge/executive) to permit a 14-year-old girl who has given birth to a child to marry the alleged father of the illegitimate child, since the statute does not require the condition of pregnancy coexist with the application to marry. OAG 69-470 .

The three-day waiting period required by KRS 402.080 is applicable to a license issued pursuant to the provisions of subdivision (5) (now (1)3.) of this section permitting the issuance of a license with the permission of the court in the event of the pregnancy of the female. OAG 70-22 .

A boy under 18 years of age cannot be issued a marriage license with the written consent of his parents where pregnancy is not involved. OAG 71-125 .

This section requires that the female be pregnant at the time an application is made and, therefore, it does not apply where the child of the female making such application is in fact eight months old. OAG 72-553 . (But see OAG 69-470 .)

Where there was no indication that the 14-year-old female was pregnant when the application for marriage was made and the child of the couple involved was six months of age and the underage female was not a resident of Kentucky, a marriage license could not be legally issued to this couple. OAG 73-725 . (But see OAG 69-470 .)

Where a pregnant girl under 18 applies to county judge (now county judge/executive) for a marriage license under subsection (4) (now (1)3.), the application should be made in the county of the girl’s residence as required by KRS 402.080 . OAG 74-295 .

If a pregnant female under the age of 18 cannot obtain the consent of a parent or guardian as required by KRS 402.210 , she may apply under subsection (4) (now (1)3.) or KRS 402.150 (repealed) to the county judge (now county judge/executive) for permission to marry. OAG 74-524 .

If an unmarried female under the age of 18 who has just had a child cannot procure consent of her parents under KRS 402.210 , she is not qualified to apply to the county judge (now county judge/executive) under this section for an order granting the permission to get married since the term “pregnancy” mentioned in subsection (4) (now (1)3.) simply means physically and actually pregnant at the time the application for permission to marry is made. OAG 74-607 .

Regardless of the age of a person under 18, such person may legally apply for a marriage license provided he procures the consent of one of the parents or the guardian. OAG 74-607 .

If either applicant for a marriage license is under 18 and the girl is pregnant and one of the parents or the guardian of the applicant under 18 gives consent, then it is not necessary for the applicants to apply to the county judge (now county judge/executive) for permission to marry. OAG 74-674 .

As concerns applicants for a marriage license under 18, there is no longer any minimum age since the consent of either parent or guardian takes care of the age factor. OAG 74-674 .

If the clerk has any valid reason, after a discussion with the applicants, to believe that one or both of the applicants is married to another without a final decree of divorce being effectively entered, then the clerk should not issue the license in view of this section. OAG 78-431 .

A divorced girl under 18 does not require the consent of her father, mother, or guardian in making her application for marriage since KRS 402.210 makes it clear that it is only where the applicant is under 18 and not before married that parental or a guardian’s consent is required. OAG 80-138 .

The General Assembly in this section expressed a sensitive and social concern about the marriages of persons of tender age; accordingly, the county clerk may require that the applicants for marriage produce for copying a driver’s license, or a birth certificate or copy thereof, or in lieu of any of the above an affidavit of the parents or guardian as to the specific age of the applicants. OAG 82-453 .

While there is no express statutory provision covering the proof of age of applicants for a marriage license, any reasonable requirement of the clerk as to proof of age would be upheld by the courts. In order for the legislative intent expressed in KRS 402.210 , 402.080 , and this section to be practically accomplished, the strong implication is that any reasonable kind of proof of age would be upheld by the courts. OAG 82-453 .

The literal language of subdivision (4) (now (1)3.) of this section, as relates to the language, “in case of pregnancy,” means that the under age female has to be pregnant at the time the application is made in order for her to be married over her parents’ refusal of permission; accordingly, where an unmarried 17-year-old had already had her baby, she was simply no longer pregnant and, therefore, she could not get married without the consent of her parents. OAG 83-109 .

State universities may extend employee health insurance coverage to “domestic partners” or any other persons, but may not condition such benefits upon a legal status defined in a manner substantially similar to that of marriage, since this would constitute the recognition of such a legal status in contravention of Ky. Const. § 233A. If domestic partnership is not defined in terms of a legal status similar to marriage, but is defined in a more inclusive manner, extending such benefits would be constitutional. OAG 2007-04 .

Research References and Practice Aids

Cross-References.

Bigamy, KRS 530.010 .

Legitimacy of children of void marriage, KRS 391.100 .

Kentucky Law Journal.

Miller, Kentucky’s New Dissolution of Marriage Law, 61 Ky. L.J. 980 (1973).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Turnipseed, How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America, 96 Ky. L.J. 275 (2007).

Northern Kentucky Law Review.

General Law Issue: Article: De-Clothing Sex-Based Classifications - Same-Sex Marriage is Just the Beginning: Achieving Formal Sex Equality in the Modern Era, 36 N. Ky. L. Rev. 1 (2009).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition and Order for Permission to Marry (AOC Form 201), Form 251.05.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Change of Minor’s Name, Form 265.03.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Prohibited Marriage), Form 252.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Marriage and Cohabitation, § 251.00.

Petrilli, Kentucky Family Law, Annulment of Marriage, § 10.5.

Petrilli, Kentucky Family Law, Capacity of Parties to Marry, §§ 4.1, 4.4, 4.5, 4.7.

Petrilli, Kentucky Family Law, Marriage in General, §§ 1.3, 1.4c, 1.4d, 1.4e, 1.4f.

Petrilli, Kentucky Family Law, Marriage License, §§ 5.3, 5.5, 5.7, 5.8, 5.12; 1991 Supp., § 5.5.

Petrilli, Kentucky Family Law, Solemnization, § 6.1.

Petrilli, Kentucky Family Law, Forms, Marriage, Form 1.1.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.2, Form 2.4, Form 2.12.

402.030. Courts may declare certain marriages void.

  1. Courts having general jurisdiction may declare void any marriage obtained by force or fraud, or, provided that the petition is brought by a party who was under the age of majority as defined by KRS 2.015 at the time of marriage, a marriage obtained by duress.
  2. At the instance of any next friend, courts having general jurisdiction may declare any marriage void where the person was under eighteen (18) years of age at the time of the marriage, and the marriage was without the consent required by KRS 402.210 .

HISTORY: 2100: amend. Acts 1960, ch. 8, § 2; 1974, ch. 386, § 91; 1976 (Ex. Sess.), ch. 14, § 400, effective January 2, 1978; 1988, ch. 212, § 2, effective July 15, 1988; 1998, ch. 122, § 2, effective March 26, 1998; 1998, ch. 258, § 5, effective July 15, 1998; 2018 ch. 36, § 2, effective July 14, 2018.

NOTES TO DECISIONS

1.Construction.

This section and KRS 402.020 and 402.250 together make clear the legislative intent that marriages by persons under the required age are not void but only voidable. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

2.Force or Duress.

The force or duress need not have been by the defendant, but may have been by his or her friends or relatives. Marks v. Crume, 29 S.W. 436, 16 Ky. L. Rptr. 707 (1895).

A marriage executed under duress may be ratified. Shepherd v. Shepherd, 174 Ky. 615 , 192 S.W. 658, 1917 Ky. LEXIS 226 ( Ky. 1917 ).

When the husband who alleges duress had previous to the marriage seduced or had intercourse with the wife, he must prove conclusively that duress was the sole impelling motive causing him to enter into the marriage. Shepherd v. Shepherd, 174 Ky. 615 , 192 S.W. 658, 1917 Ky. LEXIS 226 ( Ky. 1917 ).

3.Fraud.

The option to have a fraudulent marriage held void cannot be exercised by third parties or the party in fault. Shepherd v. Shepherd, 174 Ky. 615 , 192 S.W. 658, 1917 Ky. LEXIS 226 ( Ky. 1917 ).

Fraudulent marriages are voidable only at the election of the defrauded party, and said option cannot be exercised after his death by his executors or devisees. Johnson v. Sands, 245 Ky. 529 , 53 S.W.2d 929, 1932 Ky. LEXIS 621 ( Ky. 1932 ).

False representation to paramour by woman that she was pregnant in order to induce him to marry her constitutes fraud authorizing annulment of marriage. Parks v. Parks, 418 S.W.2d 726, 1967 Ky. LEXIS 224 ( Ky. 1967 ).

4.Under Age.

When one of the parties was under age, the marriage can be avoided only under this section or under KRS 402.250 . Crummies Creek Coal Corp. v. Napier, 246 Ky. 569 , 55 S.W.2d 339, 1932 Ky. LEXIS 780 ( Ky. 1932 ).

Despite the fact that KRS 402.020 declares under age marriages “void,” these marriages are merely “voidable,” and the marriage is valid absent a court declaration to the contrary. Holbert v. West, 730 F. Supp. 50, 1990 U.S. Dist. LEXIS 1362 (E.D. Ky. 1990 ).

A marriage contracted at a time when the male is under 16 (now 18) or the female under 14 (now 18) years of age is not voidable in an action by a next friend where it was entered into with parental consent or has been ratified by cohabitation after statutory age has been reached. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

Marriage of a Kentucky girl under 14 years of age is not against public policy; thus, where such a marriage was performed in a state in which it was valid, it was valid in Kentucky and the next friend of the girl was without authority to maintain an action for annulment. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

5.Consent.

The marriage cannot be avoided at the instance of a next friend if consent was given. Moody v. Whittle, 271 Ky. 29 , 111 S.W.2d 401, 1937 Ky. LEXIS 181 ( Ky. 1937 ).

6.Validity.

A marriage valid where it takes place is valid everywhere except where it is against the public policy of the domiciliary state. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

Marriage of a person under 16 was voidable, not void, and thus, was not against Kentucky public policy; the denial of defendant’s request for an instruction under KRS 510.035 since he was married to the victim was error, and his convictions for third-degree rape were improper. However, defendant’s convictions for second degree rape as they related to the period preceding defendant’s marriage to the victim were proper. Robinson v. Commonwealth, 212 S.W.3d 100, 2006 Ky. LEXIS 298 ( Ky. 2006 ).

Cited:

Beddow v. Beddow, 257 S.W.2d 45, 1952 Ky. LEXIS 1152 ( Ky. 1952 ); Eck v. Eck, 793 S.W.2d 858, 1990 Ky. App. LEXIS 110 (Ky. Ct. App. 1990).

Opinions of Attorney General.

State universities may extend employee health insurance coverage to “domestic partners” or any other persons, but may not condition such benefits upon a legal status defined in a manner substantially similar to that of marriage, since this would constitute the recognition of such a legal status in contravention of Ky. Const. § 233A. If domestic partnership is not defined in terms of a legal status similar to marriage, but is defined in a more inclusive manner, extending such benefits would be constitutional. OAG 2007-04 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Prohibited Marriage), Form 252.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Petrilli, Kentucky Family Law, Annulment of Marriage, §§ 10.1, 10.2, 10.3, 10.9, 10.12, 10.17.

Petrilli, Kentucky Family Law, Court Procedure, § 23.12.

Petrilli, Kentucky Family Law, Marriage in General, § 1.4f.

Petrilli, Kentucky Family Law, Marriage License, § 5.8; 1991 Supp., § 5.5.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Forms 2.2, 2.4, 2.12, 2.23.

Out of State Marriages

402.040. Marriage in another state.

  1. If any resident of this state marries in another state, the marriage shall be valid here if valid in the state where solemnized, unless the marriage is against Kentucky public policy.
  2. A marriage between members of the same sex is against Kentucky public policy and shall be subject to the prohibitions established in KRS 402.045 .

History. 2101; 1998, ch. 258, § 3, effective July 15, 1998.

Compiler's Notes

On June 26, 2015, the United States Supreme Court in Obergefell v. Hodges, 192 L. Ed. 2d 609, held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

NOTES TO DECISIONS

1.Validity.

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (U.S. 2015).

The validity of a marriage performed in another state must be decided by the laws of that state. Dumaresly v. Fishly, 10 Ky. 368 , 1821 Ky. LEXIS 149 ( Ky. 1821 ) (decided under prior law).

A marriage valid in the state where performed is valid in other state where the parties may reside, even though it would have been invalid if performed there. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law). See Dannelli v. Dannelli's Adm'r, 67 Ky. 51 , 1868 Ky. LEXIS 78 ( Ky. 1868 ) (decided under prior law).

The fact that residents of Kentucky went to another state to have performed a marriage that would have been invalid in Kentucky with the express intent to avoid the Kentucky laws does not invalidate the marriage if it was legal in the state where performed. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

Validity of marriage performed in another state must be determined by the laws of that state. Klenke v. Noonan, 118 Ky. 436 , 81 S.W. 241, 26 Ky. L. Rptr. 305 , 1904 Ky. LEXIS 58 ( Ky. 1904 ).

In absence of pleading and proof of validity of marriage solemnized in another state, the presumption is that the common law as administered in this state prevails in the other state. Rose v. Rose, 274 Ky. 208 , 118 S.W.2d 529, 1938 Ky. LEXIS 246 ( Ky. 1938 ).

A marriage valid where it takes place is valid in Kentucky unless it is against the public policy of the state. Gilbert v. Gilbert, 275 Ky. 559 , 122 S.W.2d 137, 1938 Ky. LEXIS 468 ( Ky. 1938 ).

Where marriage took place in West Virginia, its validity must be determined by the laws of that state. Finding that husband was in fact competent made it unnecessary for court to decide whether West Virginia marriage could be attacked by third parties after death of husband, alleged to be incompetent. Johnson v. Sands, 276 Ky. 492 , 124 S.W.2d 774, 1939 Ky. LEXIS 550 ( Ky. 1939 ).

A marriage valid where it takes place is valid everywhere except where it is against the public policy of the domiciliary state. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

A marriage contracted at a time when the male is under 16 (now 18) or the female under 14 (now 18) years of age is not voidable in an action by a next friend where it was entered into with parental consent or has been ratified by cohabitation after statutory age has been reached. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

Marriage of a Kentucky girl under 14 years of age is not against public policy; thus, where such a marriage was performed in a state in which it was valid, it was valid in Kentucky and the next friend of the girl was without authority to maintain an action for annulment. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

Marriage of a person under 16 was voidable, not void, and thus, was not against Kentucky public policy; the denial of defendant’s request for an instruction under KRS 510.035 since he was married to the victim was error, and his convictions for third-degree rape were improper. However, defendant’s convictions for second degree rape as they related to the period preceding defendant’s marriage to the victim were proper. Robinson v. Commonwealth, 212 S.W.3d 100, 2006 Ky. LEXIS 298 ( Ky. 2006 ).

Because same-sex marriage was void as against public policy under KRS 402.040(2), a Family Court’s creation of the legal fiction that a same-sex life partner was a stepparent of her partner’s biological child was an invalid attempt to avoid the statutory restriction in order to approve the adoption. S.J.L.S. v. T.L.S., 265 S.W.3d 804, 2008 Ky. App. LEXIS 282 (Ky. Ct. App. 2008).

2.Mentally Incompetent.

The marriage of an idiot or a lunatic violates the fundamental public policy of this state, and thus a marriage entered into by a Kentucky resident who is an idiot or lunatic in another state will not be recognized in Kentucky, even though such marriage was voidable only in the state where solemnized. Beddow v. Beddow, 257 S.W.2d 45, 1952 Ky. LEXIS 1152 ( Ky. 1952 ).

3.Bigamous Marriage.

Bigamous marriage performed in Ohio was void both in Ohio and in Kentucky. Fields v. Commonwealth, 301 Ky. 551 , 192 S.W.2d 478, 1946 Ky. LEXIS 513 ( Ky. 1946 ).

4.Cohabitation.

Evidence that parties lived together as husband and wife in Kentucky is competent as corroboration of evidence that they lived together as husband and wife in Ohio, in action to establish her right to dower. Hoffman v. Hoffman, 285 Ky. 55 , 146 S.W.2d 347, 1940 Ky. LEXIS 598 ( Ky. 1940 ).

5.Common-Law Marriage.

A common-law marriage in another state, in which state such a marriage is legal, will be upheld here. Klenke v. Noonan, 118 Ky. 436 , 81 S.W. 241, 26 Ky. L. Rptr. 305 , 1904 Ky. LEXIS 58 ( Ky. 1904 ). See Howard v. Asher, 219 Ky. 158 , 292 S.W. 1089, 1927 Ky. LEXIS 340 ( Ky. 1927 ).

Common-law marriage valid in the state where entered into is valid in Kentucky. Brown's Adm'r v. Brown, 308 Ky. 796 , 215 S.W.2d 971, 1948 Ky. LEXIS 1052 ( Ky. 1948 ).

Illicit cohabitation in Kentucky prior to moving to Florida where cohabitation continued did not prevent valid common-law marriage in Florida in face of uncontradicted evidence that Florida cohabitation was for the purpose of contracting a common-law marriage. Brown's Adm'r v. Brown, 308 Ky. 796 , 215 S.W.2d 971, 1948 Ky. LEXIS 1052 ( Ky. 1948 ).

Where Kentucky citizens went to Florida and entered into a common-law marriage which was valid there, and then returned to Kentucky to live, on husband’s death the wife was entitled to the widow’s statutory portion of his estate. Brown's Adm'r v. Brown, 308 Ky. 796 , 215 S.W.2d 971, 1948 Ky. LEXIS 1052 ( Ky. 1948 ).

Although Kentucky law does not provide for creation of common-law marriage, common-law marriages validly created in another state are recognized in Kentucky. Tarter v. Medley, 356 S.W.2d 255, 1962 Ky. LEXIS 94 ( Ky. 1962 ).

While Kentucky may recognize common-law marriages legalized in another state, the mere journeying to another state, registering at a motel as husband and wife, exchanging marriage vows in private, and returning the next day does not constitute such a common-law marriage in the other state which will be recognized in Kentucky. Vaughn v. Hufnagel, 473 S.W.2d 124, 1971 Ky. LEXIS 145 ( Ky. 1971 ), cert. denied, 405 U.S. 1041, 92 S. Ct. 1313, 31 L. Ed. 2d 582, 1972 U.S. LEXIS 3079 (U.S. 1972).

6.— Living Husband or Wife.

Where plaintiff had not obtained divorce from former husband at time of consummation of alleged common-law marriage in Ohio, marriage was void. Gilbert v. Gilbert, 275 Ky. 559 , 122 S.W.2d 137, 1938 Ky. LEXIS 468 ( Ky. 1938 ).

7.Extraterritoriality.

The marriage laws of Kentucky have no extraterritorial effect. Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage in General, § 1.2.

ALR

Recognition by foreign state of marriage which would, though invalid where contracted, have been valid if contracted within foreign state. 82 A.L.R.3d 1240.

402.045. Same-sex marriage in another jurisdiction void and unenforceable.

  1. A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky.
  2. Any rights granted by virtue of the marriage, or its termination, shall be unenforceable in Kentucky courts.

History. Enact. Acts 1998, ch. 258, § 1, effective July 15, 1998.

Compiler's Notes

On June 26, 2015, the United States Supreme Court in Obergefell v. Hodges, 192 L. Ed. 2d 609, held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

NOTES TO DECISIONS

1.Constitutionality.

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (U.S. 2015).

Kentucky’s denial of recognition for valid same-sex marriages under this provision and KRS 402.045 violates the guarantee of equal protection under the law, even under the most deferential standard of review; accordingly, this provision and KRS 402.045 are unconstitutional. Bourke v. Beshear, 996 F. Supp. 2d 542, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky.), rev'd, 772 F.3d 388, 2014 FED App. 0275P, 2014 U.S. App. LEXIS 21191 (6th Cir. Mich. 2014).

Research References and Practice Aids

Northern Kentucky Law Review.

General Law Issue: Article: De-Clothing Sex-Based Classifications - Same-Sex Marriage is Just the Beginning: Achieving Formal Sex Equality in the Modern Era, 36 N. Ky. L. Rev. 1 (2009).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Prohibited Marriage), Form 252.03.

Solemnization

402.050. Who may solemnize marriage — Persons present.

  1. Marriage shall be solemnized only by:
    1. Ministers of the gospel or priests of any denomination in regular communion with any religious society;
    2. Justices and judges of the Court of Justice, retired justices and judges of the Court of Justice except those removed for cause or convicted of a felony, county judges/executive, and such justices of the peace and fiscal court commissioners as the Governor or the county judge/executive authorizes; or
    3. A religious society that has no officiating minister or priest and whose usage is to solemnize marriage at the usual place of worship and by consent given in the presence of the society, if either party belongs to the society.
  2. At least two (2) persons, in addition to the parties and the person solemnizing the marriage, shall be present at every marriage.

History. 2103, 2107: amend. Acts 1968, ch. 102; 1976 (Ex. Sess.), ch. 14, § 401, effective January 2, 1978; 1978, ch. 384, § 516, effective June 17, 1978; 1992, ch. 50, § 1, effective July 14, 1992; 1996, ch. 205, § 1, effective July 15, 1996.

NOTES TO DECISIONS

1.Presence of Authorized Person.

All marriages not solemnized or contracted in the presence of an authorized person or society are absolutely void. Robinson v. Redd's Adm'r, 102 Ky. 354 , 43 S.W. 435 (1897). See Klenke v. Noonan, 118 Ky. 436 , 81 S.W. 241, 26 Ky. L. Rptr. 305 , 1904 Ky. LEXIS 58 ( Ky. 1904 ).

Cited:

Holbert v. West, 730 F. Supp. 50, 1990 U.S. Dist. LEXIS 1362 (E.D. Ky. 1990 ).

Opinions of Attorney General.

If one of the parties to the marriage is a member of a recognized religious society such as the Quakers, it is legal for the marriage to be solemnized by consent given by the parties in the presence of the society. OAG 63-24 .

Where a group of Quakers did not have a regular place to worship, it would be legal to solemnize a marriage at whatever place was currently designated as the regular place of worship. OAG 63-24 .

A county judge (now county judge/executive) pro tem may solemnize a marriage, in performing the duties of the county judge (now county judge/executive), only if the regular county judge (now county judge/executive) is absent from the county, or is unable or disqualified to perform such function because of sickness or other reason. Conversely, if the county judge (now county judge/executive) is present in the county and is not disqualified from performing the function because of sickness or other valid reasons, the county judge (now county judge/executive) pro tem has no authority to solemnize marriages. OAG 68-111 .

A county judge (now county judge/executive) may perform a marriage in any county in Kentucky. OAG 68-385 .

If the county judge (now county judge/executive) is present in the county and is not disqualified from performing the function of solemnizing marriages because of sickness or other valid reasons, the county judge pro tem has no authority to solemnize marriages. OAG 70-736 .

A justice of the peace may solemnize a marriage of a couple possessing a valid Kentucky marriage license during an airplane flight if the ceremony takes place while the plane is within the geographical boundaries of the Commonwealth of Kentucky. OAG 72-620 .

Where a religious society has no regular place of worship and such worship takes place in the various homes of the believers, the home of one such believer could be designated as a place in which a marriage ceremony is to be held and this would satisfy the requirement of subsection (1)(c) of this section as to “the usual place of worship.” OAG 72-805 .

A justice of the peace who has been properly authorized to solemnize marriages either by the governor or the county court may solemnize marriages in any county in the Commonwealth regardless of whether the license is acquired in the county where the marriage is solemnized or another county, but the return of the license and certificate must be made to the county clerk who issued the license. OAG 74-114 .

This section does not require a minister to be ordained. OAG 74-673 .

An exhorter of the Church of God with headquarters at Cleveland, Tennessee is a minister of the gospel. OAG 74-673 .

Where a county judge (now county judge/executive) determines that an applicant for a license to solemnize marriages is a minister in regular communion with his religious society in that the group is organized and maintained for the support of public worship of God and the applicant is recognized as a minister of such group and is actively engaged in such ministry and thereby qualifies as a minister and also complies with the other requirements of KRS 402.060 (repealed) he may be issued a license to solemnize marriages. OAG 76-603 .

Being a minister in regular communion with his religious society is one of the conditions required under KRS 402.060 (repealed) in order to be issued a license to solemnize marriages and if a group is organized and maintained for the support of public worship of God and the applicant is recognized as a minister of such group, and the minister is actively engaged in such ministry, he would qualify as a minister. OAG 76-603 .

The point of qualification for a minister or priest is that he must be a minister of the gospel of any denomination in regular communion with any religious society, but a particular ritual of ordainment is not a statutory prerequisite. OAG 77-326 .

County judges/executive and justices of the peace can continue to solemnize marriages as a nonjudicial function. OAG 78-33 .

In the absence of any statutory provisions for a fee for solemnizing a marriage, any money for it is purely a matter of gift. OAG 78-57 .

Since performing a marriage is not a judicial act, a justice of the peace can perform marriages provided he has proper written authorization. OAG 78-57 .

County judges/executive are authorized by this section to solemnize marriages. OAG 78-71 .

A “religious society” in Kentucky is a broad term and includes any group organized and maintained for the support of public worship of God and the recognition of a minister can take the form of ordination or license or any other form which expresses clearly the fact that the religious group recognizes the person or looks to the person as a minister of that specific group. OAG 78-303 .

There is nothing in this section suggesting that a minister must be ordained and it establishes no criterion as to the meaning of the phrase “minister of the gospel,” therefore in each case we must look to the particular church group with which the applicant is affiliated; in other words the matter of who is a minister of the religious society is left wholly to the recognition of the particular denomination or organization. OAG 78-303 .

A justice of the peace can solemnize marriages, provided that it is authorized by the governor of Kentucky or the county judge/executive of his county by way of an appropriate executive order. OAG 78-642 .

The term “persons present” is so broad as to include any two human beings or individuals, male or female, present at such wedding, regardless of age and where the witnesses are infants (under 18), the witnesses would qualify where it appears to the person solemnizing the marriage that such infant witnesses are sufficiently intelligent to observe, recollect and narrate (if it were ever necessary) the critical facts as to the marriage and identity of the parties to the marriage, and have a moral sense of obligation to speak the truth (if and when called upon). OAG 79-323 .

There is nothing in the language of subsection (2) of this section or KRS 402.220 to suggest that a witness must be of legal age, which for general purposes is 18. OAG 79-323 .

A 17-year-old minister of the gospel is qualified, under this section and KRS 402.060 (repealed), to apply to the county judge/executive for a license to solemnize marriages in Kentucky, provided he is a resident of the county in which he applies or serves as a minister in a place of worship in that county, satisfies the county judge/executive that he is a person of good moral character and in regular communion with his religious society, and makes the bond required by KRS 402.060 (repealed). OAG 80-256 .

A deputy county judge/executive, as such, has no authority to solemnize a marriage in Kentucky. OAG 82-145 .

In an urban county the power to authorize justices of the peace to solemnize marriages exists in the county judge/executive, pursuant to this section and there is no law that would permit the mayor of urban county government to exercise such authority; of course where the governor has previously authorized one or more of the justices of the peace to perform marriages, the county judge/executive’s authority would be nullified to that extent, since the statute does not envision the duplication of the authority to permit justices of the peace to solemnize marriages. OAG 82-164 .

The authority of a county judge/executive in an urban county to authorize a person to solemnize marriages applies exclusively to the justice of the peace in that county and not to county commissioners, pursuant to subdivision (1)(b) of this section. OAG 82-164 .

This section is not a general law relating to city or county government but is merely a law dealing with the subject of those persons or officials who can perform marriages; thus the marriage ceremony by one qualified by statute to solemnize the marriage does not relate to county or city governmental action, as such. OAG 82-164 .

A justice of the peace may perform marriages if he is expressly authorized to do so in writing by the Governor of Kentucky or the county judge/executive of his county. Such authority should take the form of an executive order as applies to the Governor and the county judge/executive. The original order should be filed in the county clerk’s office. OAG 82-453 .

Since the charge or money received by a county judge/executive for marrying people is not for a governmental service, it belongs to the county judge/executive as a private asset and he is not required to account for that money to the fiscal court or county treasurer. OAG 83-122 .

A county judge/executive, in performing marriages under subsection (1) of this section, may receive whatever reasonable amount of money (it is not a fee in the governmental sense) the married parties may wish to give him. While a minister or other official is generally given a small fee for performing a marriage ceremony, such a fee is not authorized by statute or required by any law and cannot be forced as a condition to the performance of marriage under existing law. OAG 83-122 .

Canadian citizen, who was an ordained minister, within the meaning of subdivision (1)(a) of this section, and who resided in Kentucky, could lawfully apply to the county judge/executive for the issuance of a license to solemnize marriages, pursuant to KRS 402.060 (repealed) and could then conduct marriages in Kentucky by himself. OAG 84-96 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order of County Judge/Executive Authorizing Justices to Perform Marriage Ceremony, Form 17.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Justices of the Peace, § 17.00.

Petrilli, Kentucky Family Law, Proxy Marriage, § 8.2.

Petrilli, Kentucky Family Law, Solemnization, § 6.1.

402.060. Minister or priest to have license to solemnize marriage — Exemption — Special license for nonresident. [Repealed.]

Compiler’s Notes.

This section (2104: amend. Acts 1974, ch. 386, § 92; 1978, ch. 246, § 1, effective June 17, 1978; 1980, ch. 188, § 110, effective July 15, 1980; 1988, ch. 243, § 2, effective April 9, 1988; 1994, ch. 220, § 1, effective July 15, 1994) was repealed by Acts 1996, ch. 205, § 3, effective July 15, 1996.

402.070. Marriage not invalid for want of authority to solemnize.

No marriage solemnized before any person professing to have authority therefor shall be invalid for the want of such authority, if it is consummated with the belief of the parties, or either of them, that he had authority and that they have been lawfully married.

History. 2102.

NOTES TO DECISIONS

1.Belief Minister Had Authority.

Where a minister who had married plaintiff and her husband was not legally qualified because he had not obtained a license but he had held himself out to the public as having authority to perform marriages for several years and he had performed a number of ceremonies in the community, and plaintiff and her husband had believed he had such authority and they consummated the marriage and thereafter lived together as husband and wife, a valid marriage was established and the wife could maintain an action for the wrongful death of her husband. Arthurs v. Johnson, 280 S.W.2d 504, 1955 Ky. LEXIS 163 ( Ky. 1955 ).

Cited in:

Manning v. Street, 279 Ky. 253 , 130 S.W.2d 735, 1939 Ky. LEXIS 266 ( Ky. 1939 ); Barger v. Commonwealth, 256 S.W.2d 364, 1953 Ky. LEXIS 724 ( Ky. 1953 ); Turner v. Commonwealth, 315 S.W.2d 619, 1958 Ky. LEXIS 329 ( Ky. 1958 ); Holbert v. West, 730 F. Supp. 50, 1990 U.S. Dist. LEXIS 1362 (E.D. Ky. 1990 ); Pinkhasov v. Petocz, 331 S.W.3d 285, 2011 Ky. App. LEXIS 18 (Ky. Ct. App. 2011).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Petrilli, Kentucky Family Law, Solemnization, § 6.2.

402.080. Marriage license required — Who may issue.

No marriage shall be solemnized without a license therefor. The license shall be issued by the clerk of the county in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person, in which case it may be issued by any county clerk.

HISTORY: 2105: amend. Acts 1948, ch. 42; 1968, ch. 100, § 14; 1978, ch. 384, § 518, effective June 17, 1978; 1980, ch. 74, § 1, effective July 15, 1980; 1984, ch. 279, § 1, effective July 13, 1984; 2018 ch. 36, § 3, effective July 14, 2018.

NOTES TO DECISIONS

1.License Issued in Wrong County.

A marriage is not invalidated because the license was issued in the wrong county. Gatewood v. Tunk, 6 Ky. 246 , 1813 Ky. LEXIS 112 ( Ky. 1813 ) (decided under prior law). See Dumaresly v. Fishly, 10 Ky. 368 , 1821 Ky. LEXIS 149 ( Ky. 1821 ); Stevenson v. Gray, 56 Ky. 193 , 1856 Ky. LEXIS 24 ( Ky. 1856 ) (decided under prior law).

2.No license.

Based on the plain language of the marriage statutes pursuant to interpretation rules under KRS 446.080 , parties who entered into a purely religious marriage ceremony, solemnized pursuant to their religious faith, but who purposely chose not to obtain a civil marriage license pursuant to KRS 402.080 and 402.220 , did not create a legally valid civil marriage. Pinkhasov v. Petocz, 331 S.W.3d 285, 2011 Ky. App. LEXIS 18 (Ky. Ct. App. 2011).

3.Standing.

Trial court properly concluded that the decedent’s mother and sister lacked standing to attack the validity of the decedent’s and wife’s marriage where the decedent and wife had sought a legally valid civil marriage and completed all steps required to comply, and case law requiring strict compliance with Ky. Rev. Stat. Ann. § 402.080 did not extend standing to a third party to contest a marriage. Marshall v. Marshall, 559 S.W.3d 381, 2018 Ky. App. LEXIS 233 (Ky. Ct. App. 2018).

Opinions of Attorney General.

The medical certificate constitutes a part of the marriage application and it must be filed at the same time that application for marriage license is made, and remain with the application in the clerk’s office for three days before the license is issued. OAG 63-266 .

After January 1, 1965, a female 18 years of age or over, be she a resident or nonresident, may apply for and have issued by any county clerk a marriage license and such a female is not limited to the county of her residence. OAG 64-503 .

The application for a marriage license must remain on file, open to the public, in the office of the county court clerk for three days before the license is issued and such is an absolute condition that must be met. OAG 66-730 .

The marriage license application book kept by the county clerk constitutes a public record open to public inspection. OAG 68-41 .

A circuit judge has no authority to waive the three-day waiting period. OAG 68-321 .

Except in a pregnancy situation involving imminent birth, the county judge (now county judge/executive) has no authority to waive the three-day waiting period. OAG 68-321 .

There are no specific residency requirements in Kentucky for persons applying for marriage licenses who are 18 years of age or over, whether residents or nonresidents, and marriage licenses may be issued to such persons in any county of the state provided other statutory requirements are met. Female residents who are not widows and who are under the age of 18 must obtain a marriage license in the county of their residence. Nonresident females under age 18 cannot validly obtain a marriage license from any county clerk. OAG 68-557 .

The statute does not fix a definite time within which a marriage license must be issued after proper application has been made but, once proper application has been filed, the license must be issued within a reasonable time thereafter and, since a marriage license after issue is only valid for 30 days, a reasonable time for the issuance of the license after the proper filing of application would be a relatively short period of time. OAG 69-453 .

The waiting period required by subsection (2) of this section is applicable to a license issued pursuant to the provisions for pregnancy of KRS 402.020(5) (now KRS 402.020(1)(f)3. OAG 70-22 .

Only the signature of the female on the marriage license application is mandatory. OAG 72-50 .

A marriage license upon receipt of a valid application therefor should be issued within a reasonable time after the three-day waiting period. A reasonable time means a relatively short time and a delay of four months is not a reasonable time. OAG 73-414 .

A nonresident pregnant girl under 16 years of age does not qualify for a marriage license in Kentucky unless she is a widow, since she does not reside anywhere in Kentucky. OAG 74-295 .

The day that the application for the license is filed constitutes the first day of the waiting period, and then on the third day of the waiting period after regular business hours, the clerk may issue the marriage license to the applicants. OAG 78-381 .

If one of the parties is under 60, the waiving of the three-day waiting period of this section cannot be applied since under the literal language of this section both persons (applicants) must be 60 years of age or older. OAG 80-415 .

Where minister, on the basis of presented license of marriage, performed marriage ceremony and completed the certificates mentioned in KRS 402.100 , but in returning the certificate to the clerk, the license-certificate was lost in the mail, in view of the public policy favoring marriage, clerk could issue a certified “duplicate” marriage license to the parties, which could then be delivered to the solemnizing minister for filling out the subject certificates and returning such duplicate license for filing; after first requiring the minister and the wedded parties to sign an affidavit, to be filed with clerk, stating that the minister did on a certain day take the original marriage license and solemnize the marriage between the subject parties. OAG 82-242 .

A county clerk may issue a marriage license where the female is a nonresident and the male is a resident of Kentucky or vice versa, provided applicable statutory requirements are met; where the female is a nonresident, subsection (1) of this section would not apply but where the female is a resident of Kentucky, it would apply. OAG 74-295 modified OAG 82-416 .

Subsection (1) of this section has no bearing on nonresident but merely relates to factual circumstances requiring that application be made in a certain county. OAG 74-295 modified OAG 82-416 .

The marriage license application should not be mailed and returned by mail; the application should be made by the applicants in person in the clerk’s office. OAG 74-295 modified OAG 82-416 .

There is no statute disqualifying nonresidents as such from applying for a marriage license in Kentucky; nonresidents may apply for a marriage license in any county in Kentucky provided they comply with applicable statutory law. OAG 74-295 modified OAG 82-416 .

The General Assembly in KRS 402.020 expressed a sensitive and social concern about the marriages of persons of tender age; accordingly, the county clerk may require that the applicants for marriage produce for copying a driver’s license, or a birth certificate or copy thereof, or in lieu of any of the above an affidavit of the parents or guardian as to the specific age of the applicants. OAG 82-453 .

While there is no express statutory provision covering the proof of age of applicants for a marriage license, any reasonable requirement of the clerk as to proof of age would be upheld by the courts. In order for the legislative intent expressed in KRS 402.020 , 402.210 , and this section to be practically accomplished, the strong implication is that any reasonable kind of proof of age would be upheld by the courts. OAG 82-453 .

In considering that the statutes contain no maximum time during which the application for a marriage license may remain on file, and considering that under KRS 402.190 (repealed and reenacted as KRS 402.105 ) a marriage license is valid for 30 days, including the date of issue, it appears that the marriage license, assuming that any pertinent marriage statutes have been complied with, should be issued by the clerk within a reasonable time after the three-day waiting period; a “reasonable time” would probably be a rather short period of time, perhaps a period of 30 days. OAG 83-359 .

The three-day waiting period is mandatory. OAG 84-79 .

Where the deputy clerk intentionally backdates a marriage application in order to avoid the three-day waiting period of this section, and where the county clerk has no actual knowledge of such wrongful issue until after the issuance has been effected, and the clerk has no reasonable opportunity to retrieve the wrongfully issued license prior to the solemnizing of marriage, the county clerk would not be subject to the penalty described in KRS 402.990(9). A repetition of this offense by the deputy would warrant the clerk’s dismissal of the deputy, where the offense is made known to the clerk, and if the offense is allowed to be repeated, the clerk could be charged under KRS 402.990(9). OAG 84-79 .

Where a county clerk’s deputy deliberately backdates a marriage application in order to avoid the three-day waiting period, the clerk’s failure to take action against the deputy and failure to explain the circumstances when mailing the application to the Department of Human Resources as required under either KRS 213.330 (repealed), for purposes of vital statistics records, or KRS 402.340 , in connection with the sickle cell detection program, would not be relevant to the clerk’s liability under the penalty provision of KRS 402.990(9). OAG 84-79 .

KRS 402.990 clearly differentiates between issuing a marriage license to persons prohibited by this chapter and issuing a license in violation of this chapter; since a license issued in violation of the three-day waiting period constitutes a violation of the chapter, but not an issuance to persons prohibited to marry, the penalty of KRS 402.990 (8) would not be applicable. OAG 84-79 .

Research References and Practice Aids

Cross-References.

Clerk’s fees for marriage license, KRS 64.012 .

Tax on marriage license, KRS 142.010 .

Treatises

Treatises

Petrilli, Kentucky Family Law, Marriage License, §§ 5.1, 5.2.

402.090. Soliciting persons to be married by particular person — Sharing remuneration — Solicitation by minister or justice of the peace.

  1. No person shall, for compensation or reward, solicit, persuade, entice, direct or induce any persons to go before any person authorized to solemnize marriage to be married. No such person shall receive for such services any part of the remuneration paid for solemnizing the marriage.
  2. No person authorized to solemnize marriage shall pay, give to, or divide or share with any other person any sum of money or other thing obtained by him for solemnizing marriage.
  3. No person authorized to solemnize marriage shall solicit, persuade, entice, direct or induce any persons to come before him to be married.

History. 2103: amend. Acts 1946, ch. 29, § 1.

NOTES TO DECISIONS

1.Constitutionality.

The provision forbidding solicitation by a person to induce persons to come before him to be married is a reasonable exercise of the state’s power to regulate the civil aspects of marriage, and is not an unconstitutional interference with the promulgation of religious views. Ladd v. Commonwealth, 313 Ky. 754 , 233 S.W.2d 517, 1950 Ky. LEXIS 975 ( Ky. 1950 ).

2.License Revoked.

Where evidence showed that minister had been guilty of soliciting marriages, it was proper to revoke his license to solemnize marriages. Ladd v. Commonwealth, 313 Ky. 754 , 233 S.W.2d 517, 1950 Ky. LEXIS 975 ( Ky. 1950 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Solemnization, § 6.4.

Licensing and Recording

402.100. Marriage license — Marriage certificate — Confidentiality of Social Security or other government-issued identification card numbers.

Each county clerk shall make available to the public the form prescribed by the Department for Libraries and Archives for the issuance of a marriage license. The department shall issue a marriage license form which provides for the entering of information identifying each party as a “bride,” “groom,” or “spouse.” This form shall provide for the entering of all of the information required in this section, and may also provide for the entering of additional information prescribed by the Department for Libraries and Archives. The form shall consist of:

  1. A marriage license which provides for the entering of:
    1. An authorization statement for any person or religious society authorized to perform marriage ceremonies to unite in marriage the parties named;
    2. Vital information for each party, including the full name, date of birth, place of birth, race, gender, condition (single, widowed, or divorced), number of previous marriages, occupation, current residence, relationship to the other party, and full names of parents;
    3. A statement signed by both parties swearing that, to the best of their knowledge, the information provided on the form is correct; and
    4. The date and place the application was made.
  2. A marriage certificate which provides for the entering of:
    1. A statement by the person performing the marriage ceremony or the clerk of the religious society authorized to solemnize the marriage ceremony that the ceremony was performed. The statement shall include the name and title of the person performing the ceremony or the name of the religious society solemnizing the marriage, the names of persons married, the date and place of the marriage, and the names of two (2) witnesses;
    2. A statement by the person performing the marriage ceremony of his legal qualification under this chapter to perform the ceremony, such statement to include the name of the county or city where his license to perform marriage ceremonies was issued or, in the case of religious societies authorized by KRS 402.050(1)(c) to solemnize marriages, the name of the city or county where the religious society is incorporated. The provisions of this paragraph shall not be construed to require the clerk of a religious society to be present at the marriage so long as the witnesses of the society are present;
    3. The printed name and dated signature of the person performing the ceremony; and
    4. A signed statement indicating that the marriage certificate was recorded in the county in which it was filed. The statement shall also include the title of the county clerk or deputy clerk of the county in which the certificate was filed and indicate the date the marriage certificate was recorded.
  3. A certificate to be delivered by the person performing the marriage ceremony or the clerk of the religious society performing the marriage ceremony to the parties married. This certificate shall provide for the entering of:
    1. A statement by the person performing the marriage ceremony or the clerk of the religious society performing the marriage ceremony that the ceremony was performed. The statement shall include the name and title of the person performing the ceremony, or the name of the religious society performing the ceremony, the names of persons married, the date and place of the marriage, and the names of two (2) witnesses; and
    2. A dated signature of the person performing the ceremony or the clerk of the religious society performing the ceremony.
  4. A Social Security card or other government-issued identification card shall be requested as a means of identification of each party but the number shall not be recorded or retained.

HISTORY: 2103: amend. Acts 1976, ch. 15, § 1; 1984, ch. 279, § 2, effective July 13, 1984; 1994, ch. 220, § 2, effective July 15, 1994; 2000, ch. 428, § 1, effective July 14, 2000; 2005, ch. 99, § 621, effective June 20, 2005; 2006, ch. 101, § 1, effective July 12, 2006; 2016 ch. 132, § 1, effective July 15, 2016; 2017 ch. 177, § 7, effective June 29, 2017.

Legislative Research Commission Note.

This section was amended by 1984 Acts Chapter 111, § 158, and 1984 Acts Chapter 279, § 2, which are in conflict and cannot be compiled together. Pursuant to KRS 7.123 , the amendment in Chapter 279, § 2, the nonrevisory Act, prevails.

Opinions of Attorney General.

Where a marriage was performed by Quakers, the marriage certificate should show that it was effectuated by saying of vows in the presence of the society which event was witnessed by the clerk of the society signing the certificate. OAG 63-24 .

The marriage register or marriage certificate can be typed, but the signatures of the applicants and of the clerk or deputy must be placed on the record, since a basic purpose of the marriage certificate data is to preserve the data as documentary evidence of the fact of marriage. OAG 78-381 .

If either applicant is divorced, they must so state, but there is no express requirement for an attested copy of a divorce decree even though one of the applicants states that he or she is divorced. OAG 78-431 .

Where minister, on the basis of presented license of marriage, performed marriage ceremony and completed the certificates mentioned in this section, but in returning the certificate to the clerk, the license-certificate was lost in the mail, in view of the public policy favoring marriage, clerk could issue a certified “duplicate” marriage license to the parties, which could then be delivered to the solemnizing minister for filling out the subject certificates and returning such duplicate license for filing; after first requiring the minister and the wedded parties to sign an affidavit, to be filed with clerk, stating that the minister did on a certain day take the original marriage license and solemnize the marriage between the subject parties. OAG 82-242 .

The General Assembly in KRS 402.020 expressed a sensitive and social concern about the marriages of persons of tender age; accordingly, the county clerk may require that the applicants for marriage produce for copying a driver’s license, or a birth certificate or copy thereof, or in lieu of any of the above an affidavit of the parents or guardian as to the specific age of the applicants. OAG 82-453 .

Where a marriage license was issued and the bride gave the name of her adoptive parents but she later learned that this couple were only legal guardians, since the data relating to the parents of the parties to the marriage is not a critical factor affecting the validity of the marriage, the validity of the marriage is not affected by this error; moreover where as here, the ceremony can be proved the court will uphold the marriage, and in absence of a court order the clerk has no authority to correct such record. OAG 82-557 .

While an applicant for a marriage license is not required to have a Social Security number, if an applicant does have one, it must be disclosed to the county clerk, or, there must be an express declaration that the applicant does not have such number. OAG 04-004 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.2.

Petrilli, Kentucky Family Law, Forms, Marriage, Form 1.3.

402.105. Marriage license valid for thirty days.

A marriage license shall be valid for thirty (30) days, including the date it is issued, and after that time it shall be invalid.

History. 2105a-3; repealed and reenact., Acts 1984, ch. 111, § 159, effective July 13, 1984.

Compiler’s Notes.

This section was formerly compiled as KRS 402.190 but was repealed and reenacted as this section.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.10.

402.110. Marriage license to be uniform and completely filled out — Exception under KRS 402.100.

Except as provided in KRS 402.100 (1), the form of marriage license prescribed in KRS 402.100 shall be uniform throughout this state, and every license blank shall contain the identical words and figures provided in the form prescribed by KRS 402.100. In issuing the license the clerk shall deliver it in its entirety to the licensee. The clerk shall see to it that every blank space required to be filled by the applicants is so filled before delivering it to the licensee.

History. 2103a: amend. Acts 1984, ch. 279, § 3, effective July 13, 1984; 2016 ch. 132, § 2, effective July 15, 2016.

Opinions of Attorney General.

Where both of the parties are 18, the clerk could issue a marriage license with only the bride or groom present to sign the marriage register. OAG 70-481 .

The marriage license application should not be mailed and returned by mail; the application should be made by the applicants in person in the clerk’s office. OAG 82-416 .

While an applicant for a marriage license is not required to have a Social Security number, if an applicant does have one, it must be disclosed to the county clerk, or, there must be an express declaration that the applicant does not have such number. OAG 04-004 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.2.

402.120. Medical examination required — Exception. [Repealed.]

Compiler’s Notes.

This section (2105a-1a: amend. Acts 1980, ch. 74, § 2, effective July 15, 1980) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.130. Medical examination — Laboratory tests. [Repealed.]

Compiler’s Notes.

This section (2105a-1b: amend. Acts 1972, ch. 157, § 2; 1974, ch. 74, Art. VI, § 107(11)) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.140. Procedure upon return of examination. [Repealed.]

Compiler’s Notes.

This section (2105a-1c: amend. 1974, ch. 74, Art. VI, § 107(10)) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.150. License for marriage of pregnant woman without medical certificate. [Repealed.]

Compiler’s Notes.

This section (2105a-1d: amend. Acts 1974, ch. 74, Art. VI, § 107(10); 1976 (Ex. Sess.), ch. 14, § 402, effective January 2, 1978) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.160. Submission of specimen to laboratory — Report to department. [Repealed.]

Compiler’s Notes.

This section (2105a-1e: amend. Acts 1972, ch. 157, § 2; 1974, ch. 74, Art. VI, § 107(10) and (11)) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.170. Protest after refusal of medical certificate and marriage license — Hearing. [Repealed.]

Compiler’s Notes.

This section (2105a-2a: amend. Acts 1974, ch. 74, Art. VI, § 107(2); 1976 (Ex. Sess.), ch. 14, § 403 effective January 2, 1978) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.180. Appeal to circuit court. [Repealed.]

Compiler’s Notes.

This section (2105a-2b: amend. Acts 1974, ch. 74, Art. VI, § 107(2); 1976 (Ex. Sess.), ch. 14, § 402, effective January 2, 1978) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.190. Marriage license valid for thirty days. — [Renumbered.]

Compiler’s Notes.

This section (2105a-3) was repealed by Acts 1984, ch. 111, § 159 and reenacted as KRS 402.105 , effective July 13, 1984.

402.200. County health officer to advise district court. [Repealed.]

Compiler’s Notes.

This section (2105a-4: amend. Acts 1976 (Ex. Sess.), ch. 14, § 405, effective January 2, 1978) was repealed by Acts 1982, ch. 146, § 4, effective July 15, 1982.

402.205. Petition to court by seventeen year old for permission to marry — Evidentiary hearing — Reasons for denying petition — Effect of pregnancy — Emancipation of minor — Other court-imposed conditions — Fee.

  1. A minor who is seventeen (17) years of age may petition the family court in the county in which the minor resides, or the District Court in that county if a family court division has not been established in that county, for an order granting permission to marry. The petition shall contain the following:
    1. The petitioner’s name, gender, age, date of birth, address, and how long the petitioner has resided at that address, as well as prior addresses and dates of residence for the six (6) months preceding the petition;
    2. The intended spouse’s name, gender, age, date of birth, address, and how long the intended spouse has resided at that address, as well as prior addresses and dates of residence for the six (6) months preceding the petition;
    3. An affidavit attesting to the consent to marry signed by:
      1. The father or the mother of the petitioner, if the parents are married, the parents are not legally separated, no legal guardian has been appointed for petitioner, and no court order has been issued granting custody of petitioner to a party other than the father or mother;
      2. Both the father and the mother, if both are living and the parents are divorced or legally separated, and a court order of joint custody to the parents of the petitioner has been issued and is in effect;
      3. The surviving parent, if the parents were divorced or legally separated, and a court order of joint custody to the parents of the petitioner was issued prior to the death of either the father or mother, which order remains in effect;
      4. The custodial parent, as established by a court order which has not been superseded, where the parents are divorced or legally separated and joint custody of the petitioner has not been ordered; or
      5. Another person having lawful custodial charge of the petitioner;
    4. A statement of the reasons why the petitioner desires to marry, how the parties came to know each other, and how long they have known each other;
    5. Evidence of the petitioner’s maturity and capacity for self-sufficiency independent of the petitioner’s parents and the intended spouse, including but not limited to:
      1. Proof that the petitioner has maintained stable housing or employment for at least three (3) consecutive months prior to the petition; and
      2. Proof that the petitioner has completed high school, obtained a High School Equivalency Diploma, or completed a vocational training or certificate program;
    6. Copies of any criminal records of either party to be married; and
    7. Copies of any domestic violence order or interpersonal protective order involving either party to be married.
  2. Upon the filing of the petition for permission to marry, the court shall set a datefor an evidentiary hearing on the petition that is no sooner than thirty (30) days but not later than sixty (60) days from the date of the filing.
  3. The petitioner may be represented by counsel in court proceeding pertaining to the petition to marry.
  4. The court shall take reasonable measures to ensure that any representations made by a minor party are free of coercion, undue influence, or duress. Reasonable measures shall include but are not limited to in camera interviews.
  5. Following an evidentiary hearing, the court shall grant the minor’s petition for permission to marry unless:
    1. The age difference between the parties is more than four (4) years;
    2. The intended spouse was or is a person in a position of authority or a position of special trust as defined in KRS 532.045 in relation to the minor;
    3. The intended spouse has previously been enjoined by a domestic violence order or interpersonal protective order, regardless of whether or not the person to be protected by the order was the minor petitioner;
    4. The intended spouse has been convicted of or entered into a diversion program for a criminal offense against a victim who is a minor as defined in KRS 17.500 or for a violent or sexual criminal offense under KRS Chapter 506, 507, 507A, 508, 509, 510, 529, 530, or 531;
    5. The court finds by a preponderance of the evidence that the minor was a victim and that the intended spouse was the perpetrator of a sexual offense against the minor under KRS 510.040 , 510.050 , 510.060 , 510.110 , 510.120 , or 510.130 ;
    6. The court finds by a preponderance of the evidence that abuse, coercion, undue influence, or duress is present; or
    7. The court finds that it would otherwise not be in the minor party’s best interest to grant the petition to marry.
  6. A past or current pregnancy of the minor or the intended spouse shall not be sufficient evidence to establish that the best interests of the minor would be served by granting the petition for marriage.
  7. The granting of a petition for permission to marry filed under subsection (1) of this section shall remove the disabilities of minority. A minor emancipated by the petition shall be considered to have all the rights and responsibilities of an adult, except for specific constitutional or statutory age requirements, including but not limited to voting, the use of alcoholic beverages, and other health and safety regulations relevant to him or her because of his or her age.
  8. The minor shall be advised by the court of the rights and responsibilities of parties to a marriage and of emancipated minors. The minor shall be provided with a fact sheet on these rights and responsibilities to be developed by the Office of the Attorney General and the Cabinet for Health and Family Services. The fact sheet shall include referral information for legal aid agencies in the Commonwealth and national hotlines for domestic violence and sexual assault.
  9. The court may make any other orders that the court deems appropriate for the minor’s protection and may impose any other condition on the grant of the petition that the court determines is reasonable under the circumstances for the minor’s protection.
  10. The court may set a fee not to exceed twenty dollars ($20) to file a petition for permission to marry under this section.

HISTORY: 2018 ch. 36, § 7, effective July 14, 2018.

402.210. Requirements for issuance of license.

  1. Both parties to a marriage shall:
    1. Be present for a marriage license to be issued; and
    2. Present to the county clerk documentary proof of age in the form of:
      1. A copy of a birth record;
      2. A certification of birth issued by the state department of health, a local registrar of vital statistics, or other public office charged with similar duties by the laws of another state, territory, or country;
      3. A baptismal record showing the individual’s date of birth;
      4. A passport;
      5. An automobile driver’s license;
      6. Any government or school issued identification card showing the individual’s date of birth;
      7. An immigration record showing the individual’s date of birth;
      8. A naturalization record showing the individual’s date of birth; or
      9. A court record or any other document or record issued by a government entity showing the individual’s date of birth.
  2. If either of the parties is under seventeen (17) years of age, no license shall be issued.
  3. If either of the parties is seventeen (17) years of age, a marriage license shall not be issued unless:
    1. The party who is seventeen (17) years of age presents to the clerk a certified copy of a court order by a family court or District Court judge that grants the party permission to marry and removes the party’s disability of minority, as provided in KRS 402.205 ; and
    2. At least fifteen (15) days have elapsed since the court order was granted.

HISTORY: 2106: amend. Acts 1968, ch. 100, § 15; 1974, ch. 386, § 93; 1988, ch. 212, § 3, effective July 15, 1988; 1998, ch. 122, § 3, effective March 26, 1998; 1998, ch. 258, § 6, effective July 15, 1998; 2018 ch. 36, § 4, effective July 14, 2018.

NOTES TO DECISIONS

1.Construction.

KRS 2.015 did not impliedly amend this section by reducing from 21 to 18 the age at which a person can obtain a marriage license without the consent of parent or guardian. Commonwealth v. Hallahan, 391 S.W.2d 378, 1965 Ky. LEXIS 305 ( Ky. 1965 ).

2.Proof of Consent.

Forgery of a certificate of consent cannot be predicated upon an unattested and unproven writing. Pearson v. Commonwealth, 117 Ky. 731 , 78 S.W. 1128, 25 Ky. L. Rptr. 1866 , 1904 Ky. LEXIS 243 ( Ky. 1904 ).

The clerk has no authority to prove the execution of the consent by one who was not an attesting witness. Commonwealth v. Bradshaw, 210 Ky. 405 , 276 S.W. 124, 1925 Ky. LEXIS 689 ( Ky. 1925 ).

3.Absence of Consent.

Absence of parental consent does not invalidate a marriage otherwise duly performed. Cannon v. Alsbury, 8 Ky. 76 , 1817 Ky. LEXIS 128 ( Ky. 1817 ) (decided under prior law).

4.Action for Marriage Without Consent.

No civil action lies for enticing one to marry without his or her parents’ consent, although an action does lie for loss of service. Jones v. Tevis, 14 Ky. 25 , 1823 Ky. LEXIS 129 ( Ky. 1823 ) (decided under prior law).

Cited:

Board of Education v. Bentley, 383 S.W.2d 677, 1964 Ky. LEXIS 51 , 11 A.L.R.3d 990 ( Ky. 1964 ).

Opinions of Attorney General.

A parent can give his consent to the marriage of his child who is under 21 years of age even though the parent or guardian is not himself a resident of Kentucky. OAG 62-662 .

It is sufficient if the father who is a nonresident of this state mails to the clerk his consent in writing signed by him with his signature being attested to by two subscribing witnesses. OAG 62-662 .

Consent of the parents to the marriage of minor children as provided by KRS 402.210 is not required in order for the county clerk to issue a marriage license, where a Circuit Judge has issued an order under KRS 402.020(5) (now KRS 402.020(1)(f)3.) giving the parties, upon their application, permission to marry based on a finding that the boy is 17 years of age and the girl is 15 and pregnant. OAG 62-876 .

Absence of parental consent does not invalidate a marriage otherwise duly performed. OAG 63-982 .

This section is not changed by KRS 2.015 . OAG 64-503 .

The bond provision only applies to parties under the age of consent. OAG 66-730 .

Where a bond is proper under the statute, the signing of a bond can be properly accomplished through a power of attorney. OAG 66-730 .

For the nonresident father of a boy under age 21 (now 18) to give his consent so that a marriage license may be issued to his son in Kentucky, either the father must appear personally before the county court clerk in Kentucky who issues the license or one of the two subscribing witnesses to the father’s signature on the written consent must personally appear before the Kentucky court clerk issuing the license. OAG 68-94 .

While KRS 402.020(5) (now KRS 402.020(4)) permits application to the county judge (now county judge/executive) for permission to marry where either of the parties is under the required age and the female is pregnant, where the pregnancy has ripened into the birth of a living child, the license cannot be validly procured unless the consent procedure set forth in this section is followed, upon the girl’s reaching the age of 16. OAG 68-100 .

After June 13, 1968, the effective date of KRS 402.210 , persons who have reached the age of 18 years will be legally entitled to apply for a marriage license without their parents’ consent. OAG 68-219 .

KRS 402.210 means that persons 18 or over may apply for marriage license without observing the consent procedure and is not in conflict with KRS 402.020 which prohibits marriage where the male is under 18. OAG 68-226 .

KRS 2.015 is not controlling of the consent procedure outlined in KRS 402.210 . OAG 68-262 .

The age requirements of this section are applicable to both residents and nonresidents. OAG 68-499 .

This statute does not authorize issuance of a marriage license to a male under the age of 18, even though a consent could be obtained. OAG 69-388 .

The provision in this section for the giving of bond where the parties are personally unknown to the clerk applies only where one of the parties to the marriage is under the legal age or where there is some reason to believe that this may be the case. OAG 69-411 .

This section does not authorize the issuance of a license where the male is under 18 and no pregnancy is involved, even though consent could be obtained. OAG 71-125 .

If a pregnant female under the age of 18 cannot obtain the consent of a parent or guardian she may apply under KRS 402.020(4) (now (1)(f)3.) or KRS 402.150 (repealed) to the county judge for permission to marry. OAG 74-524 .

Regardless of the age of a person under 18, such person may legally apply for a marriage license provided he procures the consent of one of the parents or the guardian. OAG 74-607 .

If an unmarried female under the age of 18 who has just had a child cannot procure consent of her parents under this section, she is not qualified to apply to the county judge under KRS 402.020 for an order granting permission to get married since the term “pregnancy” mentioned in KRS 402.020 (4) (now (1)(f)3.) means physically and actually pregnant at the time the application for permission to marry is made. OAG 74-607 .

As concerns applicants for a marriage license under 18, there is no longer any minimum age since the consent of either parent or guardian takes care of the age factor. OAG 74-674 .

A divorced girl under 18 does not require the consent of her father, mother, or guardian in making her application for marriage since this section makes it clear that it is only where the applicant is under 18 and not before married that parental or a guardian’s consent is required. OAG 80-138 .

The marriage license application should not be mailed and returned by mail; the application should be made by the applicants in person in the clerk’s office. OAG 74-295 modified OAG 82-416 .

The General Assembly in KRS 402.020 expressed a sensitive and social concern about the marriages of persons of tender age; accordingly, the county clerk may require that the applicants for marriage produce for copying a driver’s license, or a birth certificate or copy thereof, or in lieu of any of the above an affidavit of the parents or guardian as to the specific age of the applicants. OAG 82-453 .

While there is no express statutory provision covering the proof of age of applicants for a marriage license, any reasonable requirement of the clerk as to proof of age would be upheld by the courts. In order for the legislative intent expressed in KRS 402.020 , 402.080 and this section to be practically accomplished, the strong implication is that any reasonable kind of proof of age would be upheld by the courts. OAG 82-453 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Treatises

Treatises

Petrilli, Kentucky Family Law, Capacity of Parties to Marry, § 4.1.

Petrilli, Kentucky Family Law, Marriage License, §§ 5.3, 5.5, 5.6; 1991 Supp., § 5.5.

402.220. Return of license and certificate to clerk after ceremony.

The person solemnizing the marriage or the clerk of the religious society before which it was solemnized shall within one (1) month return the license to the county clerk of the county in which it was issued, with a certificate of the marriage over his signature, giving the date and place of celebration and the names of at least two (2) of the persons present.

History. 2107: amend. Acts 1984, ch. 279, § 4, effective July 13, 1984; 1994, ch. 220, § 3, effective July 15, 1994.

NOTES TO DECISIONS

1.No license.

Based on the plain language of the marriage statutes pursuant to interpretation rules under KRS 446.080 , parties who entered into a purely religious marriage ceremony, solemnized pursuant to their religious faith, but who purposely chose not to obtain a civil marriage license pursuant to KRS 402.080 and 402.220 , did not create a legally valid civil marriage. Pinkhasov v. Petocz, 331 S.W.3d 285, 2011 Ky. App. LEXIS 18 (Ky. Ct. App. 2011).

Cited:

Barger v. Commonwealth, 256 S.W.2d 364, 1953 Ky. LEXIS 724 ( Ky. 1953 ).

Opinions of Attorney General.

Where the license and certificate were never returned as required under KRS 402.220 , if the party can prove even by parol evidence the celebration of the marriage or ceremony and the essential facts of marriage relating to general reputation, cohabitation, and acknowledgment, the marriage would be deemed valid. OAG 64-776 .

Where members of a religious organization with no clergy are married by the exchanging of vows in the presence of the religious society, the clerk of the society should alter the form of the marriage certificate to reflect this fact. OAG 72-805 .

A justice of the peace who has been properly authorized to solemnize marriages either by the governor or the county court may solemnize marriages in any county in the Commonwealth regardless of whether the license is acquired in the county where the marriage is solemnized or another county, but the return of the license and certificate must be made to the county clerk who issued the license. OAG 74-114 .

The term “persons present” is so broad as to include any two human beings or individuals, male or female, present at such wedding, regardless of age and where the witnesses are infants (under 18), the witnesses would qualify where it appears to the person solemnizing the marriage that such infant witnesses are sufficiently intelligent to observe, recollect and narrate (if it were ever necessary) the critical facts as to the marriage and identity of the parties to the marriage, and have a moral sense of obligation to speak the truth (if and when called upon). OAG 79-323 .

There is nothing in the language of KRS 402.050(2) or this section to suggest that a witness must be of legal age, which for general purposes is 18. OAG 79-323 .

There is nothing in this chapter to suggest that the validity of the marriage hinges upon whether or not the return of the license and certificate to the county clerk, under this section, is effected. OAG 82-242 .

Where minister, on the basis of presented license of marriage, performed marriage ceremony and completed the certificates mentioned in KRS 402.100 , but in returning the certificate to the clerk, the license-certificate was lost in the mail, in view of the public policy favoring marriage, clerk could issue a certified “duplicate” marriage license to the parties, which could then be delivered to the solemnizing minister for filling out the subject certificates and returning such duplicate license for filing; after first requiring the minister and the wedded parties to sign an affidavit, to be filed with clerk, stating that the minister did on a certain day take the original marriage license and solemnize the marriage between the subject parties. OAG 82-242 .

Even though the person solemnizing the marriage does not return the license and certificate to the county clerk within the three months period, the clerk has the authority and duty to file the certificate and record the data required by KRS 402.230 , where the license and certificate reach the clerk after the three months’ period has elapsed; the clerk should make a note of the deadline date and the date of acceptance. OAG 84-152 .

Even though the person who performs the marriage ceremony does not return to the county clerk the license and certificate, as required by this section, within the three months’ period, the marriage is not null and void because of such failure to return the license and certificate. OAG 84-152 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Solemnization, § 6.5.

Petrilli, Kentucky Family Law, Forms, Marriage, Form 1.3.

402.230. Filing of marriage certificate — Record of marriages.

The certificate shall be filed in the county clerk’s office. The county clerk shall keep in a record book a fair register of the parties’ names, the person by whom, or the religious society by which, the marriage was solemnized, the date when the marriage was solemnized, and shall keep an index to the book in which the register is made.

History. 2108, 2108-1; 1994, ch. 220, § 4, effective July 15, 1994.

NOTES TO DECISIONS

1.Proof by Record.

Marriage may be proved by the record. Caldwell v. Williams, 118 S.W. 932 ( Ky. 1909 ). See McDaniel v. McDaniel, 212 Ky. 833 , 280 S.W. 145, 1926 Ky. LEXIS 246 ( Ky. 1926 ).

Opinions of Attorney General.

The obligation to complete marriage records and to file original licenses was imposed upon the clerk in office when the license was issued. The present clerk has no obligation under the statute to complete such records begun in former terms by prior clerks. However, where marriage records involving prior clerks are incomplete and could be completed by transcribing original license or other loose-leaf data, the present clerk is authorized to complete the marriage records by transcribing such data and making proper attestation thereto. OAG 67-290 .

A marriage may not be recorded in this state where a couple procured a Kentucky marriage license and went to Indiana where they were married by a minister who had been bonded to perform marriages in the Commonwealth of Kentucky, because a minister who is a nonresident of this state at the time of the marriage ceremony would not be allowed to perform marriage ceremonies even in Kentucky. OAG 72-622 .

The marriage register or marriage certificate can be typed, but the signatures of the applicants and of the clerk or deputy must be placed on the record, since a basic purpose of the marriage certificate data is to preserve the data as documentary evidence of the fact of marriage. OAG 78-381 .

Where minister, on the basis of presented license of marriage, performed marriage ceremony and completed the certificate mentioned in KRS 402.100 , but in returning the certificate to the clerk, the license-certificate was lost in the mail, in view of the public policy favoring marriage, clerk could issue a certified “duplicate” marriage license to the parties, which would then be delivered to the solemnizing minister for filling out the subject certificates and returning such duplicate license for filing; after first requiring the minister and the wedded parties to sign an affidavit, to be filed with clerk, stating that the minister did on a certain day take the original marriage license and solemnize the marriage between the subject parties. OAG 82-242 .

Even though the person who performs the marriage ceremony does not return to the county clerk the license and certificate, as required by KRS 402.220 , within the three months’ period, the marriage is not null and void because of such failure to return the license and certificate. OAG 84-152 .

Even though the person solemnizing the marriage does not return the license and certificate to the county clerk within the three months period, the clerk has the authority and duty to file the certificate and record the data required by this section, where the license and certificate reach the clerk after the three months’ period had elapsed; the clerk should make a note of the deadline date and the date of acceptance. OAG 84-152 .

The clerk’s record of a marriage under this section is not the exclusive record of the marriage; marriage may be proved by the marriage witnesses or by social reputation. OAG 84-152 .

Research References and Practice Aids

Cross-References.

Cross indexes prepared by W.P.A., approval of, KRS 382.205 .

Treatises

Treatises

Petrilli, Kentucky Family Law, Court Procedure, § 23.30.

Petrilli, Kentucky Family Law, Records and Proof of Ceremonial Marriage, § 9.1.

402.240. County judge/executive to issue license in absence of clerk.

In the absence of the county clerk, or during a vacancy in the office, the county judge/executive may issue the license and, in so doing, he shall perform the duties and incur all the responsibilities of the clerk. The county judge/executive shall return a memorandum thereof to the clerk, and the memorandum shall be recorded as if the license had been issued by the clerk.

History. 2113.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.9.

Miscellaneous Provisions

402.250. Circuit Court may affirm or avoid marriage.

Where doubt is felt as to the validity of a marriage, either party may, by petition in Circuit Court, demand its avoidance or affirmance; but where one (1) of the parties was of the age of majority, as defined by KRS 2.015 at the time of marriage, the party who is of proper age may not bring such a proceeding for that cause against the party under age.

HISTORY: 2115: amend. Acts 1976 (Ex. Sess.), ch. 14, § 406, effective January 2, 1978; 2018 ch. 36, § 5, effective July 14, 2018.

NOTES TO DECISIONS

1.Construction.

KRS 402.020 , 402.030 and this section together make clear the legislative intent that marriages by persons under the required age are not void but only voidable. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

2.Under Age.

The party who is of age cannot sue to avoid the marriage on the ground that the other party was under age. Crummies Creek Coal Corp. v. Napier, 246 Ky. 569 , 55 S.W.2d 339, 1932 Ky. LEXIS 780 ( Ky. 1932 ).

A marriage contracted at a time when the male is under 16 (now 18) or the female under 14 (now 18) years of age is not voidable in an action by a next friend where it was entered into with parental consent or has been ratified by cohabitation after statutory age has been reached. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

Marriage of a Kentucky girl under 14 years of age is not against public policy; thus, where such a marriage was performed in a state in which it was valid, it was valid in Kentucky and the next friend of the girl was without authority to maintain an action for annulment. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ) (decision prior to 1960 amendment of KRS 402.020 ).

3.Marriage Attacked After Death.

Fact that party to marriage void ab initio had died, and marriage was not annulled or attacked prior to such party’s death, did not bar subsequent attack by court. Ex parte Bowen, 247 S.W.2d 379, 1952 Ky. LEXIS 694 ( Ky. 1952 ).

4.Validity.

A marriage valid where it takes place is valid everywhere except where it is against the public policy of the domiciliary state. Mangrum v. Mangrum, 310 Ky. 226 , 220 S.W.2d 406, 1949 Ky. LEXIS 885 ( Ky. 1949 ).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Annulment of Marriage, §§ 10.9, 10.12, 10.17.

Petrilli, Kentucky Family Law, Marriage in General, §§ 1.4a, 1.4f.

Petrilli, Kentucky Family Law, Records and Proof of Ceremonial Marriage, § 9.2.

402.260. Receivership for person under eighteen who marries without judicial consent. [Repealed]

HISTORY: 2116: amend. Acts 1968, ch. 100, § 16; 1974, ch. 386, § 94; 1976 (Ex. Sess.), ch. 14, § 407, effective January 2, 1978; 1988, ch. 212, § 4, effective July 15, 1988; 1998, ch. 258, § 7, effective July 15, 1998; repealed by 2018 ch. 36, § 6, effective July 14, 2018.

402.270. Marriage manual — Preparation by Human Resources Coordinating Commission for distribution to marriage applicants.

  1. The Human Resources Coordinating Commission of Kentucky shall prepare a marriage manual for distribution to all applicants for a marriage license. The manual shall include, but not be limited to, material on family planning, proper health and sanitation practices, nutrition, consumer economics, and the legal responsibilities of spouses to each other and as parents to their children.
  2. When the manual is approved it shall be printed by the Human Resources Coordinating Commission. Copies of the manual shall be sent to the county clerk of each county. Each county clerk shall give a copy to each applicant for a marriage license.

History. Enact. Acts 1972, ch. 26, § 1; 1976, ch. 62, § 123.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.1.

Sickle Cell Disease Detection

402.310. Sickle Cell Disease Detection Act.

KRS 402.310 to 402.340 may be cited as the Kentucky Sickle Cell Disease Detection Act of 1972.

History. Enact. Acts 1972, ch. 122, § 1.

402.320. Marriage license applicants to be tested for trait or genetically transmitted disease affecting hemoglobin — Counseling carriers.

Every physician examining applicants for a marriage license may obtain an appropriate blood specimen from each applicant and forward same to the Division of Laboratory Services, Cabinet for Health and Family Services, or to a laboratory approved by the cabinet, to ascertain the existence or nonexistence of sickle cell trait or sickle cell disease, or any other genetically transmitted disease which affects hemoglobin. In the event the laboratory tests indicate that both applicants are carriers of a trait or disease, the physician may provide genetic counseling or refer the applicants to the cabinet or to an agency approved by the cabinet for such counseling.

History. Enact. Acts 1972, ch. 122, § 2; 1974, ch. 273, § 1; 1998, ch. 426, § 577, effective July 15, 1998; 2005, ch. 99, § 622, effective June 20, 2005.

Opinions of Attorney General.

The medical examination mentioned in KRS 402.130 (repealed) relates only to syphilis tests and the sickle cell test under this section is left to the discretion of the examining physician. OAG 75-594 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.4.

402.330. Testing of newborn child for sickle cell trait or disease. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 122, § 3) was repealed by Acts 1974, ch. 273, § 3.

402.340. Secretary for Health and Family Services to administer and enforce Sickle Cell Disease Detection Act.

The secretary for health and family services shall adopt rules and regulations for the proper administration and enforcement of KRS 402.310 to 402.340 .

History. Enact. Acts 1972, ch. 122, § 4; 1974, ch. 74, Art. VI, § 107(10); 1998, ch. 426, § 578, effective July 15, 1998; 2005, ch. 99, § 623, effective June 20, 2005.

Opinions of Attorney General.

Where a county clerk’s deputy deliberately backdates a marriage application in order to avoid the three-day waiting period, the clerk’s failure to take action against the deputy and failure to explain the circumstances when mailing the application to the Department of Human Resources (now Cabinet for Health and Family Services) as required under either KRS 213.330 (repealed), for purposes of vital statistics records, or this section, in connection with the sickle cell detection program, would not be relevant to the clerk’s liability under the penalty provision of KRS 402.990(9) (now (7)). OAG 84-79 .

Penalties

402.990. Penalties.

  1. Any party to a marriage prohibited by KRS 402.010 shall be guilty of a Class B misdemeanor. If the parties continue after conviction to cohabit as man and wife, either or both of them shall be guilty of a Class A misdemeanor.
  2. Any person who aids or abets the marriage of any person who has been adjudged mentally disabled, or attempts to marry, or aids or abets any attempted marriage with any such person shall be guilty of a Class B misdemeanor.
  3. Any authorized person who knowingly solemnizes a marriage prohibited by this chapter shall be guilty of a Class A misdemeanor.
  4. Any unauthorized person who solemnizes a marriage under pretense of having authority, and any person who falsely personates the father, mother, or guardian of an applicant in obtaining a license shall be guilty of a Class D felony.
  5. Any person who falsely and fraudulently represents or personates another, and in such assumed character marries that person, shall be guilty of a Class D felony. Indictment under this subsection shall be found only upon complaint of the injured party and within two (2) years after the commission of the offense.
  6. Any clerk who knowingly issues a marriage license to any persons prohibited by this chapter from marrying shall be guilty of a Class A misdemeanor and removed from office by the judgment of the court in which he is convicted.
  7. Any clerk who knowingly issues a marriage license in violation of his duty under this chapter shall be guilty of a Class A misdemeanor.
  8. If any deputy clerk or any person other than a county clerk knowingly issues a marriage license in violation of this chapter, but not for a prohibited marriage, he shall be guilty of a Class A misdemeanor, and if he knowingly issues a license for a marriage prohibited by this chapter, he shall be guilty of a Class A misdemeanor.
  9. Any person who violates any of the provisions of KRS 402.090 shall be guilty of a violation.
  10. Any county clerk who violates any of the provisions of KRS 402.110 or 402.230 shall be guilty of a violation.
  11. Any person failing to make the return required of him by KRS 402.220 shall be guilty of a violation.

History. 216aa-50, 1209, 1210, 2103, 2103a, 2104, 2105a-2c, 2105a-5, 2107, 2109 to 2112, 2114: amend. Acts 1970, ch. 92, § 94; 1972, ch. 122, § 5; 1974, ch. 273, § 2; 1978, ch. 92, § 13, effective June 17, 1978; 1978, ch. 384, § 519, effective June 17, 1978; 1982, ch. 141, § 114, effective July 1, 1982; 1982, ch. 146, § 2, effective July 15, 1982; 1992, ch. 463, § 45, effective July 14, 1992; 1996, ch. 205, § 2, effective July 15, 1996.

Compiler’s Notes.

This section was amended by § 125 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Indictment.

An indictment in the words of the statute is sufficient. Barclay v. Commonwealth, 116 Ky. 275 , 76 S.W. 4, 25 Ky. L. Rptr. 463 , 1903 Ky. LEXIS 185 ( Ky. 1903 ).

2.Wife as Witness.

On an indictment against the husband as an accessory before the fact to the violation of this section, the wife is a competent witness. Barclay v. Commonwealth, 116 Ky. 275 , 76 S.W. 4, 25 Ky. L. Rptr. 463 , 1903 Ky. LEXIS 185 ( Ky. 1903 ).

Opinions of Attorney General.

This section clearly differentiates between issuing a marriage license to persons prohibited by this chapter and issuing a license in violation of this chapter; since a license issued in violation of the three-day waiting period constitutes a violation of the chapter, but not an issuance to persons prohibited to marry, the penalty of subsection (8) of this section would not be applicable. OAG 84-79 .

Where the deputy clerk intentionally backdates a marriage application in order to avoid the three-day waiting period of KRS 402.080 , and where the county clerk has no actual knowledge of such wrongful issue until after the issuance has been effected, and the clerk has no reasonable opportunity to retrieve the wrongfully issued license prior to the solemnizing of marriage, the county clerk would not be subject to the penalty described in subsection (9) of this section. A repetition of this offense by the deputy would warrant the clerk’s dismissal of the deputy, where the offense is made known to the clerk, and if the offense is allowed to be repeated, the clerk could be charged under subsection (9) (now (7)) of this section. OAG 84-79 .

Where a county clerk’s deputy deliberately backdates a marriage application in order to avoid the three-day waiting period, the clerk’s failure to take action against the deputy and failure to explain the circumstances when mailing the application to the Department of Human Resources (now Cabinet for Health and Family Services) as required under either KRS 213.330 (repealed), for purposes of vital statistics records, or KRS 402.340 , in connection with the sickle cell detection program, would not be relevant to the clerk’s liability under the penalty provision of subsection (9) (now (7)) of this section. OAG 84-79 .

Research References and Practice Aids

Cross-References.

Incest, Penal Code, KRS 530.020 .

Treatises

Petrilli, Kentucky Family Law, Marriage License, §§ 5.3, 5.12.

Petrilli, Kentucky Family Law, Solemnization, §§ 6.2, 6.3, 6.4, 6.5.

Petrilli, Kentucky Family Law, Forms, Marriage, Form 1.3.

CHAPTER 403 Dissolution of Marriage — Child Custody

General Provisions

403.010. Court may grant divorce — Remarriage.

A jury shall not be impaneled in any action for divorce, alimony or maintenance, but courts having general jurisdiction may grant a divorce for the cause set out in this chapter. A decree of dissolution of marriage authorizes either party to marry again.

History. 2117, 2118: amend. Acts 1972, ch. 182, § 27; 1976 (Ex. Sess.), ch. 14, § 408, effective January 2, 1978.

Compiler’s Notes.

Section 26 of Acts 1972, ch. 182, reads:

“(1) This act applies to all proceedings commenced on or after its effective date.

“(2) This act applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered. Pending actions for divorce or separation are deemed to have been commenced on the basis of irretrievable breakdown. Evidence adduced after the effective date of this act shall be in compliance with this act.

“(3) This act applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this act.

“(4) In any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this act, the law in effect at the time of the order sustaining the appeal or the new trial governs the appeal, the new trial, and any subsequent trial or appeal.”

Section 28 of Acts 1972, ch. 182, reads:

“This act does not repeal any laws relating to:

“(1) The contents of and forms for marriage licenses and methods of registering marriages and providing for license or registration fees;

“(2) The validity of premarital agreements between spouses concerning their marital property rights;

“(3) Marital property rights during a marriage or when the marriage terminates by the death of one of the spouses;

“(4) The scope and extent of the duty of a parent to support a child of the marriage;

“(5) Custody of and support duty owed to an illegitimate child;

“(6) Any applicable laws relating to wage assignments, garnishments, and exemptions other than those providing for family support and maintenance.”

NOTES TO DECISIONS

1.Alimony.

An action for alimony is an equitable action, but controverted issues of fact may be tried by a jury; however, the jury verdict is advisory only. Wood v. Wood, 264 S.W.2d 260, 1954 Ky. LEXIS 659 ( Ky. 1954 ). (Decision prior to 1972 amendment).

In an action for alimony where the uncorroborated testimony of the husband was the only support for a verdict and judgment in his favor and such testimony was completely at variance, not only with the known facts and circumstances, but with the ordinary concept of human conduct, the judgment was reversed. Wood v. Wood, 264 S.W.2d 260, 1954 Ky. LEXIS 659 ( Ky. 1954 ). (Decision prior to 1972 amendment).

In a suit for alimony where the evidence was not sufficient to sustain the jury verdict, the Court of Appeals could reverse and direct a judgment, since it was an equitable action in which the jury verdict was only advisory. Wood v. Wood, 264 S.W.2d 260, 1954 Ky. LEXIS 659 ( Ky. 1954 ). (Decision prior to 1972 amendment).

2.Divorce.

The power of courts to grant divorce is wholly statutory. Williams v. Williams, 136 Ky. 71 , 123 S.W. 337, 1909 Ky. LEXIS 460 ( Ky. 1909 ).

The entry of a divorce judgment on the order book of the court is indispensable to establish the fact that a divorce has been granted. Robinson v. Robinson, 166 Ky. 485 , 179 S.W. 436, 1915 Ky. LEXIS 719 ( Ky. 1915 ).

A divorce judgment is not in the category of a recorded instrument and knowledge of it is not chargeable against anyone not a party to the litigation. Wides v. Wides' Ex'r, 299 Ky. 103 , 184 S.W.2d 579, 1944 Ky. LEXIS 1037 ( Ky. 1944 ).

3.— Obtained by Fraud.

A judgment of divorce obtained by fraud on the jurisdiction of the court will not be vacated if the marital status of the parties has been changed by remarriage. Moran v. Moran, 281 Ky. 739 , 137 S.W.2d 418, 1940 Ky. LEXIS 108 ( Ky. 1940 ).

4.— Foreign Judgment.

Where a properly authenticated Nevada divorce decree was placed before the court, the wife had been before the Nevada court on constructive service, and validity of the Nevada divorce was not put in issue, the court properly determined that the Nevada divorce terminated the marriage and dismissed the wife’s suit for divorce. Davis v. Davis, 303 S.W.2d 256, 1957 Ky. LEXIS 234 ( Ky. 1957 ).

5.— Committee of Incompetent.

The committee of an incompetent person has no authority to maintain an action for divorce on behalf of such person. Johnson v. Johnson, 294 Ky. 77 , 170 S.W.2d 889, 1943 Ky. LEXIS 375 ( Ky. 1943 ), overruled in part, Brooks v. Hagerty, 614 S.W.3d 903, 2021 Ky. LEXIS 7 ( Ky. 2021 ).

6.— Validation of Void Judgment.

Where default judgment of divorce obtained by husband on warning order was void because petition did not substantially comply with CR 4.05 and 4.06 requirements for a warning order, the judgment could not be validated in subsequent proceedings in connection with wife’s motion to redocket the case. Hill v. Hill, 299 Ky. 351 , 185 S.W.2d 245, 1945 Ky. LEXIS 403 ( Ky. 1945 ).

7.— Wife’s Acquiescence.

Where wife had no defense to husband’s divorce action, her voluntary appearance, without offer of defense, and her request that the husband be granted a divorce were not collusive and the dismissal of the husband’s petition was erroneous. Conyers v. Conyers, 311 Ky. 468 , 224 S.W.2d 688, 1949 Ky. LEXIS 1186 ( Ky. 1949 ).

Cited:

Smith v. Smith, 497 S.W.2d 418, 1973 Ky. LEXIS 323 ( Ky. 1973 ); Chapman v. Chapman, 498 S.W.2d 134, 1973 Ky. LEXIS 288 ( Ky. 1973 ); Whalen v. Whalen, 581 S.W.2d 578, 1979 Ky. App. LEXIS 407 (Ky. Ct. App. 1979).

Research References and Practice Aids

Cross-References.

General assembly not to grant divorce by special act, Const., § 59, Tenth.

Judgment granting divorce may not be reversed by Court of Appeals, KRS 22A.020 .

Uniform interstate family support act, KRS Ch. 407.

Kentucky Law Journal.

Abramson, Kentucky’s Future Need for Attorneys, 63 Ky. L.J. 323 (1974-1975).

Comments, Paternal Custody of the Young Child Under the Kentucky No-Fault Divorce Act, 66 Ky. L.J. 165 (1977-78).

Kentucky Law Survey: Savage, Insurance, 66 Ky. L.J. 631 (1977-1978).

Comments, That Was No Wife, That Was My Lady: Is Marvin v. Marvin Appropriate for Kentucky? 66 Ky. L.J. 707 (1977-1978).

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky? 66 Ky. L.J. 889 (1977-1978).

Comments, Child Support, Life Insurance, and the Uniform Marriage and Divorce Act, 67 Ky. L.J. 239 (1978-79).

Kentucky Law Survey, Crome, Domestic Relations, 69 Ky. L.J. 581 (1980-81).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Notes, Antenuptial Contracts and Divorce in Kentucky: A Better Approach, 72 Ky. L.J. 867 (1983-84).

Graham, Using Formulas to Separate Marital and Nonmarital Property: A Policy Oriented Approach to the Division of Appreciated Property Upon Divorce, 73 Ky. L.J. 41 (1984-85).

Northern Kentucky Law Review.

Notes, Workers' Compensation ? Marital Property ? Johnson v. Johnson, 10 N. Ky. L. Rev. 531 (1983).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Divorce, § 253.00.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.1, 23.33.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), §§ 20.1, 20.2.

Petrilli, Kentucky Family Law, Maintenance, § 25.30.

Petrilli, Kentucky Family Law, Support of the Family, § 16.8.

403.020. Grounds for divorce — Procedure in case of divorce on ground of insanity. [Repealed.]

Compiler’s Notes.

This section (2117: amend. Acts 1946, ch. 74; 1950, ch. 162; 1956, ch. 72; 1962, ch. 210, § 49) was repealed by Acts 1972, ch. 182, § 29.

403.025. Proof in action for dissolution of marriage; credible witnesses.

  1. The statements of a petition for dissolution of marriage concerning the residence of the parties and irretrievable breakdown of the marriage shall not be taken as true because of the respondent’s failure to deny the statements, and the facts as to residence of the parties must be proved by one (1) or more credible witnesses.
  2. The petitioner or respondent in an action for dissolution of marriage may be considered a credible witness, within the meaning of subsection (1) of this section, to be utilized in order to prove residency of the parties. The provisions of this subsection shall be retroactive in effect.

History. C.C. 422: amend. Acts 1892, ch. 57; trans. Acts 1952, ch. 84, § 1; 1974, ch. 340, § 1; 1988, ch. 61, § 1, effective July 15, 1988.

NOTES TO DECISIONS

1.Construction.

Allegations of a petition for a divorce are controverted by this section and the lower court is presumed to have had sufficient evidence before it to sustain its jurisdiction. Gribben v. Gribben, 227 Ky. 96 , 11 S.W.2d 998, 1928 Ky. LEXIS 462 ( Ky. 1928 ).

In a suit for divorce, this section effectually and immediately traverses the allegations of the petition, but such statutory traverse does not carry with it the expectancy that the defendant will have any evidence to offer; it gives the defendant no right to do so and merely bars a judgment for the plaintiff until he has proved his case. Dyer v. Dyer, 300 Ky. 559 , 189 S.W.2d 842, 1945 Ky. LEXIS 596 ( Ky. 1945 ).

2.Counterclaim.

A counterclaim seeking a divorce is a petition within the meaning of this section. Carter v. Carter, 292 Ky. 344 , 166 S.W.2d 453, 1942 Ky. LEXIS 85 ( Ky. 1942 ).

3.Residence.

There being no proof other than that of plaintiff wife as to her residence, and she being an incompetent witness in this respect under KRS 421.210 (repealed, now see Kentucky Rules of Evidence, Rules 501 to 511), Court of Appeals held, citing this section, that chancellor should not have granted divorce. Hester v. Hester, 166 Ky. 544 , 179 S.W. 451, 1915 Ky. LEXIS 725 ( Ky. 1915 ).

Although defendant did not in terms object to jurisdiction of court on grounds of the residence of plaintiff, the first paragraph of her answer contained a denial of facts with reference to residence of the parties, and this was sufficient to challenge the right of court to proceed unless the plaintiff proved the jurisdictional facts. Kinser v. Kinser, 186 Ky. 173 , 216 S.W. 121, 1919 Ky. LEXIS 167 ( Ky. 1919 ).

Where two or three witnesses of plaintiff testified he had always claimed Lawrence County as his home, the mere fact that he rented an apartment in Newport and occupied it when not out on the road was not sufficient to establish his residence in Campbell County. Kinser v. Kinser, 186 Ky. 173 , 216 S.W. 121, 1919 Ky. LEXIS 167 ( Ky. 1919 ).

Where the evidence indicated that the wife had returned to her parents’ home in Kentucky at her husband’s request more than one year before filing her petition for divorce, the fact that she went to Missouri to attempt a reconciliation, but did not live with the husband there, did not prevent her meeting the residence requirement for granting a divorce. Halcomb v. Halcomb, 337 S.W.2d 32, 1960 Ky. LEXIS 360 ( Ky. 1960 ).

4.— Fraud.
5.— — Judgment Void.

Where a divorce was granted on fraudulent evidence that the husband was a resident of the county in which it was granted and the husband was not in fact a resident of such county, the judgment was void and was properly set aside. Kirk v. Kirk, 240 S.W.2d 598, 1951 Ky. LEXIS 987 ( Ky. 1951 ).

6.Proof.

In view of this section, it was incumbent upon appellant to take proof in support of allegations of his counterclaim and appellee had the right to take proof in rebuttal. Carter v. Carter, 292 Ky. 344 , 166 S.W.2d 453, 1942 Ky. LEXIS 85 ( Ky. 1942 ).

7.Witnesses.

An outside witness other than a party is required to testify as to how long the petitioner has lived in this Commonwealth to establish the court’s jurisdiction. Cable v. Cable, 730 S.W.2d 947, 1987 Ky. App. LEXIS 497 (Ky. Ct. App. 1987).

The requirement that the residence of the parties must be proved by one or more creditable witnesses is not discretionary, but is a specific requirement necessary to establish the court’s jurisdiction. Cable v. Cable, 730 S.W.2d 947, 1987 Ky. App. LEXIS 497 (Ky. Ct. App. 1987).

Cited:

Shepherd v. Mann, 490 S.W.2d 760, 1973 Ky. LEXIS 646 ( Ky. 1973 ).

Research References and Practice Aids

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Treatises

Petrilli, Kentucky Family Law, Annulment of Marriage, § 10.14.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.3, 23.17, 23.24, 23.27, 23.33.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.25.

403.030. Proof required for divorce. [Repealed.]

Compiler’s Notes.

This section (2119: amend. Acts 1946, ch. 179) was repealed by Acts 1972, ch. 182, § 29.

403.033. Advisory committee appointment — Functions — Recommendations.

The judge of any Circuit Court may appoint an advisory committee to counsel with litigants in divorce actions. The committee shall serve without salary or expenses. The court may request the parties involved in these proceedings to appear before the said committee at a designated time and place. The committee may make recommendation to the court as to their conclusions from said counseling. These recommendations are not binding on the court.

History. Enact. Acts 1966, ch. 238.

Research References and Practice Aids

Kentucky Law Journal.

Hudson, Family Law — Custody of Children, 59 Ky. L.J. 529 (1970).

Treatises

Petrilli, Kentucky Family Law, Personal Rights and Privileges Resulting from Marriage, § 12.10.

403.035. Required allegations and proof in addition to cause of divorce. [Repealed.]

Compiler’s Notes.

This section (C. C. 423: amend. Acts 1940, ch. 96; 1952, ch. 176; trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1972, ch. 182, § 29.

403.036. Mediation not to be ordered unless conditions are met.

In any court proceeding conducted pursuant to KRS 403.010 to 403.350 , if there is a finding of domestic violence and abuse, as defined in KRS 403.720 , the court shall not order mediation unless requested by the victim of the alleged domestic violence and abuse, and the court finds that:

  1. The victim’s request is voluntary and not the result of coercion; and
  2. Mediation is a realistic and viable alternative to or adjunct to the issuance of an order sought by the victim of the alleged domestic violence and abuse.

History. Enact. Acts 1996, ch. 99, § 15, effective July 15, 1996.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Conciliation Conference, Form 253.13.

403.040. Annulment of divorce decree — Effect.

The court rendering a judgment for divorce may, at any time, annul it on the joint application of the parties, and restore the parties to the condition of husband and wife. The annulment voids the divorce decree and any separation agreement.

History. 2120: amend. Acts 1972, ch. 345, § 1; 1978, ch. 236, § 1, effective June 17, 1978.

NOTES TO DECISIONS

1.In General.

Annulment order relates back to divorce and renders it void and of no effect. Litteral v. Celebrezze, 215 F. Supp. 865, 1963 U.S. Dist. LEXIS 6385 (E.D. Ky. 1963 ).

It is only by virtue of this section and KRS 403.041 that a judgment of absolute divorce may be annulled after the term at which it was rendered. Berning v. Berning, 255 Ky. 699 , 75 S.W.2d 355, 1934 Ky. LEXIS 318 ( Ky. 1934 ).

2.Withdrawal of Consent.

Wife could withdraw consent to petition for annulment of divorce before court acted on petition although she had lived with husband several years after filing petition but before judgment was rendered, where rights of no third parties were involved. Berning v. Berning, 255 Ky. 699 , 75 S.W.2d 355, 1934 Ky. LEXIS 318 ( Ky. 1934 ).

3.Failure to File Petition.

Where procedure for annulment was properly followed and petition for annulment properly ordered, failure of clerk to file the petition and enter the order will not prevent entry of a judgment nunc pro tunc given the public policy favoring marriage. Munsey v. Munsey, 303 S.W.2d 257, 1957 Ky. LEXIS 235 ( Ky. 1957 ).

4.Joint Application Required.

Judgment of absolute divorce could be annulled only on joint petition and consent of both parties and, where consent of one party was lacking, chancellor had no authority to make judgment of annulment. Berning v. Berning, 255 Ky. 699 , 75 S.W.2d 355, 1934 Ky. LEXIS 318 ( Ky. 1934 ).

5.Divorce from Bed and Board.

A divorce from bed and board may at any time be modified or set aside by a court when it is made to appear that such relief is proper or necessary. Simpson v. Simpson, 201 Ky. 282 , 256 S.W. 412, 1923 Ky. LEXIS 277 ( Ky. 1923 ).

A judgment for a divorce from bed and board may be annulled at any time by court entering it by consent of parties. Hill v. Hill, 203 Ky. 182 , 261 S.W. 1115, 1924 Ky. LEXIS 876 ( Ky. 1924 ).

Cited:

Arnz v. Johnson, 299 Ky. 529 , 186 S.W.2d 4, 1945 Ky. LEXIS 454 ( Ky. 1945 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition to Set Aside Decree of Dissolution, Form 253.33.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Divorce, § 253.00.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.26.

Petrilli, Kentucky Family Law, Marriage in General, § 1.2.

403.041. Judgment of divorce may be annulled.

A judgment of divorce from the bond of matrimony may be annulled by the court which rendered it, upon a petition verified by the parties in person so requesting.

History. C. C. 426: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Construction.

This section and KRS 403.040 have been construed as providing the only method by which a judgment granting an absolute divorce may be annulled after the expiration of the term. Bushong v. Bushong, 283 Ky. 36 , 140 S.W.2d 610, 1940 Ky. LEXIS 275 ( Ky. 1940 ).

Cited:

Arnz v. Johnson, 299 Ky. 529 , 186 S.W.2d 4, 1945 Ky. LEXIS 454 ( Ky. 1945 ); Cecil v. Farmers Nat’l Bank, 245 S.W.2d 430, 1951 Ky. LEXIS 1255 ( Ky. 1951 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition to Set Aside Decree of Dissolution, Form 253.33.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Divorce, § 253.00.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.26.

403.042. Judgment of divorce from bed and board may be annulled.

A judgment of divorce from bed and board may be annulled by the court which rendered it, at the instance of either party showing just cause therefor in an equitable action.

History. C. C. 427: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

Cited:

Swartz v. Caudill, 279 Ky. 206 , 130 S.W.2d 80, 1939 Ky. LEXIS 264 ( Ky. 1939 ); Jones v. Tartar, 308 Ky. 813 , 215 S.W.2d 955, 1948 Ky. LEXIS 1046 ( Ky. 1948 ); Cecil v. Farmers Nat’l Bank, 245 S.W.2d 430, 1951 Ky. LEXIS 1255 ( Ky. 1951 ).

Research References and Practice Aids

Kentucky Law Journal.

Moffit, Cecil v. Farmers National Bank — Termination of Limited Divorces, 41 Ky. L.J. 468 (1953).

Treatises

Petrilli, Kentucky Family Law, Marriage in General, § 1.4e.

403.043. Interlocutory decree required; when judgment final; interlocutory decree set aside, when. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 237, § 1) was repealed by Acts 1968, ch. 43, § 1.

403.044. Testimony in certain cases not taken for sixty days after complaint filed.

In divorce actions in which there are minor children who are the issue of the marriage no testimony other than on temporary motions 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.

History. Enact. Acts 1968, ch. 43, § 2; 1972, ch. 253, § 1; 1980, ch. 45, § 1, effective July 15, 1980.

NOTES TO DECISIONS

Cited:

Kentucky Bar Asso. v. Cohen, 625 S.W.2d 573, 1981 Ky. LEXIS 302 ( Ky. 1981 ), cert. denied, 456 U.S. 1007, 102 S. Ct. 2298, 73 L. Ed. 2d 1301, 1982 U.S. LEXIS 2344, 50 U.S.L.W. 3948 (1982); L.B.A. v. H.A., 731 S.W.2d 834, 1987 Ky. App. LEXIS 505 (Ky. Ct. App. 1987).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Uncontested or Contested Trial Date, Form 253.20.

Petrilli, Kentucky Family Law, Court Procedure, § 23.25.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.1.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.15.

403.050. Divorce from bed and board — Grounds and legal effect.

Divorce from bed and board may be rendered for any cause that allows divorce, or for any other cause that the court in its discretion considers sufficient. A divorce from bed and board shall operate as to property thereafter acquired, and upon the personal rights and legal capacities of the parties, as a divorce from the bond of matrimony, except that neither shall marry again during the life of the other, and except that it shall not bar curtesy, dower or distributive right. The judgment may be revised or set aside at any time by the court rendering it.

History. 2121.

NOTES TO DECISIONS

Compiler’s Notes. All of the following cases decided under this section were decided prior to the 1972 enactment of KRS 403.110 to 403.350 which substantially rewrote the Kentucky divorce laws.

1.In General.

Where, in a suit by a wife for divorce, the husband filed a cross-bill for similar relief, and the court denied an absolute divorce to both parties, it was authorized by this section to grant each a divorce from bed and board. Bottom v. Bottom, 143 Ky. 666 , 137 S.W. 198, 1911 Ky. LEXIS 472 ( Ky. 1911 ).

Divorce from bed and board may be granted for less cause than warrants an absolute divorce. Humphries v. Humphries, 214 Ky. 397 , 283 S.W. 391, 1926 Ky. LEXIS 342 ( Ky. 1926 ). See McCampbell v. McCampbell, 103 Ky. 7 45, 46 S.W. 18, 20 Ky. L. Rptr. 552 , 1898 Ky. LEXIS 117 ( Ky. 1898 ); McClintock v. McClintock, 147 Ky. 409 , 144 S.W. 68, 1912 Ky. LEXIS 25 4 ( Ky. 1912 ); Turner v. Turner, 211 Ky. 7 , 276 S.W. 967, 1925 Ky. LEXIS 797 ( Ky. 1925 ); McDaniel v. McDaniel, 292 Ky. 56 , 165 S.W.2d 966, 1942 Ky. LEXIS 25 ( Ky. 1942 ).

Where grounds were insufficient for divorce but circumstances were such that couple could not live happily together, divorce from bed and board should be decreed. Reynolds v. Reynolds, 224 Ky. 668 , 6 S.W.2d 1078, 1928 Ky. LEXIS 655 ( Ky. 1928 ).

To authorize a divorce from bed and board, facts must show a separation is demanded for the interest and protection of the life, health, or happiness of the party complaining, on account of the conduct of the one in default. Quinn v. Quinn, 279 Ky. 286 , 130 S.W.2d 834, 1939 Ky. LEXIS 298 ( Ky. 1939 ).

Where plaintiff husband failed to prove abandonment for one year or that he was without fault or cruel and inhuman treatment, he should not have been granted divorce, but divorce from bed and board under this section should have been granted. Distler v. Distler, 301 Ky. 331 , 191 S.W.2d 226, 1945 Ky. LEXIS 716 ( Ky. 1945 ).

Where chancellor found parties’ dispositions so incompatible and differences irreconcilable that legal separation should be decreed, this section provides for a divorce from bed and board. Flood v. Flood, 302 Ky. 167 , 194 S.W.2d 166, 1946 Ky. LEXIS 622 ( Ky. 1946 ).

Under this statute a limited divorce may be decreed under pleadings asking for an absolute divorce. Grubb v. Grubb, 310 Ky. 449 , 220 S.W.2d 1000, 1949 Ky. LEXIS 947 ( Ky. 1949 ).

A divorce from bed and board should be resorted to only in extreme cases where there is no other adequate solution to the problem. Coleman v. Coleman, 269 S.W.2d 730, 1954 Ky. LEXIS 1019 ( Ky. 1954 ).

A decree of divorce from bed and board is a judgment of limited separation and does not dissolve the marriage but only suspends certain mutual rights and obligations. Dunning v. Dunning, 325 S.W.2d 315, 1959 Ky. LEXIS 48 ( Ky. 1959 ).

Although divorce from bed and board is a poor arrangement, it should be resorted to only in those extreme cases where there is no other adequate solution to the problem. Bailey v. Bailey, 474 S.W.2d 389, 1971 Ky. LEXIS 114 ( Ky. 1971 ).

2.Grounds.

Extreme neglect of the wife by the husband, bordering on a degree of cruelty that must have tended to destroy her peace of mind, warrants a judgment for the wife of divorce from bed and board. Irwin v. Irwin, 96 Ky. 318 , 28 S.W. 664, 16 Ky. L. Rptr. 657 , 1894 Ky. LEXIS 123 ( Ky. 1894 ).

Though husband’s treatment of wife was not such as to justify absolute divorce, his indifference to her happiness and inexcusably harsh treatment of her justified a divorce from bed and board. Ramsey v. Ramsey, 162 Ky. 741 , 172 S.W. 1082, 1915 Ky. LEXIS 140 ( Ky. 1915 ).

Wife was granted divorce from bed and board on cruelty grounds where evidence showed husband married wife to obtain housekeeper and to obtain possession of wife’s money. Phillips v. Phillips, 173 Ky. 608 , 191 S.W. 482, 1917 Ky. LEXIS 508 ( Ky. 1917 ).

Divorce from bed and board was authorized where evidence, although insufficient for divorce for husband’s cruel and inhuman treatment of wife, indicated that parties were so estranged that reconciliation was improbable or that they could not live together peacefully and happily. Nall v. Nall, 287 Ky. 355 , 153 S.W.2d 909, 1941 Ky. LEXIS 555 ( Ky. 1941 ).

Where husband and wife had continued to represent to the public, and to their children, that they were living as husband and wife, they had been living in the same house, frequently occupying same bedroom and on at least one occasion, within two years of the filing of the action, had slept in the same bed, wife could not obtain absolute divorce on ground of “living apart without any cohabitation for five consecutive years,” notwithstanding both parties testified they had not cohabited sexually for more than ten years. However, such evidence was sufficient to warrant divorce from bed and board. Colvin v. Colvin, 300 Ky. 781 , 190 S.W.2d 473, 1945 Ky. LEXIS 651 ( Ky. 1945 ).

Maladjustment of sexual relations between husband and wife justifies granting each a divorce from bed and board. Stevens v. Stevens, 313 Ky. 294 , 231 S.W.2d 49, 1950 Ky. LEXIS 877 ( Ky. 1950 ).

3.Chancellor’s Discretion.

The discretion of the court, under this section, is neither arbitrary nor unlimited, but must arise from a state of facts showing that the separation is demanded for the interest and protection of the life, health, or happiness of the party complaining, on account of the conduct and treatment of the one in default. Irwin v. Irwin, 96 Ky. 318 , 28 S.W. 664, 16 Ky. L. Rptr. 657 , 1894 Ky. LEXIS 123 ( Ky. 1894 ).

Chancellor’s discretionary power to divorce from bed and board is not arbitrary or unlimited, but a sound, legal discretion, one to be exercised with a just and reasonable regard for the rights and obligations of both parties. Phillips v. Phillips, 173 Ky. 608 , 191 S.W. 482, 1917 Ky. LEXIS 508 ( Ky. 1917 ). See Metcalf v. Metcalf, 244 Ky. 536 , 51 S.W.2d 675, 1932 Ky. LEXIS 470 ( Ky. 1932 ).

A wife is entitled to a qualified divorce from bed and board, where her evidence fails to sustain grounds for absolute divorce, if, in the sound judgment of the chancellor, the interests of the parties, their infant children, and the good of society demand it. Cecil v. Cecil, 200 Ky. 453 , 255 S.W. 64, 1923 Ky. LEXIS 105 ( Ky. 1923 ).

4.Other Causes.

Under this section, the “other cause,” authorizing divorce, is one which in severity rises above the ordinary, common, and trivial disputes and differences occurring between husband and wife, though falling below conduct furnishing cause for an absolute divorce. Burns v. Burns, 173 Ky. 105 , 190 S.W. 683, 1917 Ky. LEXIS 423 ( Ky. 1917 ).

5.Both at Fault.

Where both parties are equally guilty so that neither is entitled to an absolute divorce, the chancellor may grant a divorce from bed and board. Grubb v. Grubb, 310 Ky. 449 , 220 S.W.2d 1000, 1949 Ky. LEXIS 947 ( Ky. 1949 ).

Where evidence showed that couple could not live together in peace and harmony and that, though both were in fault, the wife was more to blame, the husband properly was granted a divorce from bed and board. Grubb v. Grubb, 310 Ky. 449 , 220 S.W.2d 1000, 1949 Ky. LEXIS 947 ( Ky. 1949 ).

Where wife was of a nagging, quarrelsome disposition, was subject to tantrums and the use of profanity, and withdrew money from their joint account and concealed it from the husband and he hit her with his fist, often slapped her, and, since their separation, had been going with another woman, the chancellor properly denied the husband an absolute divorce and granted him a divorce from bed and board. Williams v. Williams, 244 S.W.2d 166, 1951 Ky. LEXIS 1207 ( Ky. 1951 ).

6.Entitled to Absolute Divorce.

Court may grant a limited divorce, although the pleadings set forth grounds for an absolute divorce, with prayer for that relief only. Simpson v. Simpson, 201 Ky. 282 , 256 S.W. 412, 1923 Ky. LEXIS 277 ( Ky. 1923 ). See Burns v. Burns, 173 Ky. 105 , 190 S.W. 683, 1917 Ky. LEXIS 423 ( Ky. 1917 ).

Where wife was the only party entitled to a divorce and she sought a divorce from bed and board, the husband could not complain of the failure to grant an absolute divorce. Alford v. Alford, 317 S.W.2d 887, 1958 Ky. LEXIS 114 ( Ky. 1958 ).

Where wife was entitled to a divorce under the evidence which was not controverted and she sought only a divorce from bed and board, it was error for the chancellor to deny her a divorce from bed and board. Hadd v. Hadd, 325 S.W.2d 312, 1959 Ky. LEXIS 46 ( Ky. 1959 ).

Where husband filed suit for an absolute divorce, but was not entitled to a divorce, and wife counterclaimed for a divorce from bed and board and was entitled to an absolute divorce, the trial court properly denied the husband a divorce and granted the wife a divorce from bed and board. Brown v. Brown, 347 S.W.2d 524, 1961 Ky. LEXIS 365 ( Ky. 1961 ).

7.Allowance.

Where a wife is entitled to a divorce from bed and board, she is entitled to an allowance for maintenance, whether or not she is entitled to a divorce. Huffman v. Huffman, 310 Ky. 688 , 221 S.W.2d 649, 1949 Ky. LEXIS 998 ( Ky. 1949 ).

8.Effect on Property.

A divorce from bed and board operates as to subsequently acquired property, but does not affect the property held by the parties at the time of the judgment, and restoration can be granted only upon judgment of absolute divorce. Gentry v. Gentry, 318 S.W.2d 870, 1958 Ky. LEXIS 155 ( Ky. 1958 ).

9.Restoration Improper.

Upon a divorce from bed and board, the status of the parties as to all previously acquired property remains unchanged and an order for restoration of property is improper. Stevens v. Stevens, 313 Ky. 294 , 231 S.W.2d 49, 1950 Ky. LEXIS 877 ( Ky. 1950 ).

By a judgment declaring that the parties were divorced from bed and board, the marriage was not dissolved to the extent that property earned through joint effort must be allocated and restoration under this section did not apply to such divorce. Bailey v. Bailey, 474 S.W.2d 389, 1971 Ky. LEXIS 114 ( Ky. 1971 ).

10.Liability for Medical Expenses.

A husband is not liable for the medical expenses of his wife incurred after a divorce from bed and board, but such support should be provided by a reasonable allowance for alimony or maintenance determined at the time of granting the limited divorce. Gentry v. Gentry, 318 S.W.2d 870, 1958 Ky. LEXIS 155 ( Ky. 1958 ).

11.Valuation of Husband’s Estate.

Improvements made to business property after a divorce from bed and board were excluded from the gross value of the husband’s estate. Duvall v. Duvall, 431 S.W.2d 491, 1968 Ky. LEXIS 364 ( Ky. 1968 ).

12.Reversal.

Court of equity has authority to modify or set aside divorce from bed and board at any time, when it appears such relief is proper or necessary. Metcalf v. Metcalf, 244 Ky. 536 , 51 S.W.2d 675, 1932 Ky. LEXIS 470 ( Ky. 1932 ).

Where final judgment has been entered denying husband’s petition for absolute divorce and granting wife divorce from bed and board, the only remedy for errors in the record is by appeal or motion for new trial within the prescribed periods, and the judgment cannot be vacated or set aside after the term unless there exists something, other than the facts appearing in the record, that the code makes a ground for such relief, such as fraud or subsequent change of circumstances. Swartz v. Caudill, 279 Ky. 206 , 130 S.W.2d 80, 1939 Ky. LEXIS 264 ( Ky. 1939 ).

Where wife was granted divorce from bed and board by Circuit Court, and husband subsequently brought suit in same court for absolute divorce, wife’s petition for writ of prohibition to enjoin such court from hearing husband’s suit was denied since Circuit Court had jurisdiction based on granting of original divorce from bed and board. Jones v. Tartar, 308 Ky. 813 , 215 S.W.2d 955, 1948 Ky. LEXIS 1046 ( Ky. 1948 ).

Where the evidence raises only a doubt as to the propriety of granting the wife a divorce from bed and board instead of an absolute divorce as she requested, the judgment will not be overturned. Baldwin v. Baldwin, 314 Ky. 399 , 235 S.W.2d 1008, 1951 Ky. LEXIS 667 ( Ky. 1951 ).

Notwithstanding terms of KRS 21.060 (repealed — now see KRS 22A.020 ) which denies jurisdiction of Court of Appeals to reverse a judgment of divorce, Court of Appeals has jurisdiction to direct that a judgment of divorce from bed and board be set aside and an absolute divorce granted. Dunning v. Dunning, 325 S.W.2d 315, 1959 Ky. LEXIS 48 ( Ky. 1959 ).

13.Refusal to Provide for Support.

The wife is entitled to a divorce from bed and board when it is made to appear that her husband has abandoned her, with a fixed determination upon his part, without good cause, to separate from her and to refuse to provide for her support. Orr v. Orr, 71 Ky. 156 , 1871 Ky. LEXIS 30 ( Ky. 1871 ) (decided under prior law).

Cited:

Evans v. Evans, 247 Ky. 1 , 56 S.W.2d 547, 1933 Ky. LEXIS 339 ( Ky. 1 933); Keith v. Keith, 270 Ky. 655 , 110 S.W.2d 424, 1937 Ky. LEXIS 130 (1937); Dodd v. Dodd, 278 Ky. 662 , 129 S.W.2d 166, 1939 Ky. LEXIS 481 ( Ky. 1939 ); Quinn v. Quinn, 279 Ky. 286 , 130 S.W.2d 834, 1939 Ky. LEXIS 298 ( Ky. 1939 ); Turner v. Ewald, 295 Ky. 764 , 174 S.W.2d 431, 1943 Ky. LEXIS 233 ( Ky. 1943 ); Cecil v. Farmers Nat’l Bank, 245 S.W.2d 430, 1951 Ky. LEXIS 1255 ( Ky. 1951 ); Smith v. Smith, 497 S.W.2d 418, 1973 Ky. LEXIS 323 ( Ky. 1973 ).

Research References and Practice Aids

Kentucky Law Journal.

Whiteside, Domestic Relations — Recent Kentucky Developments, 1950-55, 44 Ky. L.J. 60 (1955).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Treatises

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.5.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.1.

Petrilli, Kentucky Family Law, Marriage in General, § 1.4e.

403.055. Wife may be allowed maintenance during pendency of action. [Repealed.]

Compiler’s Notes.

This section (C. C. 424: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1972, ch. 182, § 29.

403.060. Disposition of property — Restoration of maiden name. [Repealed.]

Compiler’s Notes.

This section (2121 to 2123) was repealed by Acts 1972, ch. 182, § 29.

403.065. Proceedings for restoration of property. [Repealed.]

Compiler’s Notes.

This section (C. C. 425: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1972, ch. 182, § 29.

403.070. Court to provide for care of children. [Repealed.]

Compiler’s Notes.

This section (2123: amend. Acts 1968, ch. 100, § 17) was repealed by Acts 1972, ch. 182, § 29.

403.080. When wife may obtain order securing alimony and maintenance. [Repealed.]

Compiler’s Notes.

This section (2124) was repealed by Acts 1972, ch. 182, § 29.

403.090. Friend of the court — Appointment — Tenure — Duties — Wage withholding collections — Compensation.

  1. The fiscal court of any county may, by resolution, authorize the appointment of a “friend of the court.” If the Circuit Court of the county has but one (1) judge, the appointment shall be made by the judge. If the court has two (2) or more judges, the appointment shall be made by joint action of the judges, at the general term. The person appointed to the office of friend of the court shall serve at the pleasure of, and subject to removal by, the appointing authority. The person appointed shall be a licensed practicing attorney. The appointed person shall take the constitutional oath of office and shall give bond in such sum as may be fixed by the appointing judge or judges.
  2. Except for those cases administered pursuant to 42 U.S.C. secs. 651 et seq., it shall be the duty of the friend of the court to supervise and enforce the payment of sums ordered or adjudged by the Circuit Court in divorce actions to be paid for the care and maintenance of minor children. All persons who have been ordered or adjudged by the court, in connection with divorce actions, to make payments for the care and maintenance of children, shall, if so ordered by the court, make such payments to the friend of the court. The friend of the court shall see that the payments, except for those cases administered pursuant to 42 U.S.C. secs. 651 et seq., are properly applied in accordance with the order or judgment. However, if the court so directs, the payments may be made through the juvenile session of District Court of the county; in such case the friend of the court shall render such assistance as may be required in keeping records concerning such payments and in the enforcement of delinquent payments, and the Circuit Court may direct that a designated amount or portion of the funds appropriated by the fiscal court for expenses of the friend of the court be paid to the juvenile session of District Court as reimbursement for the expenses incurred by the juvenile session of District Court in connection with the handling of such payments. The friend of the court shall promptly investigate all cases where payments have become delinquent, and when necessary shall cause the delinquent person to be brought before the court for the purpose of compelling payment. The friend of the court shall ascertain the facts concerning the care, custody, and maintenance of children for whom payments are being made, and shall report to the court all cases in which the children are not receiving proper care or maintenance, or in which the person having custody is failing to furnish proper custody. He shall make such other reports to the court as the court may require.
  3. In the event that a waiver is granted under 42 U.S.C. secs. 651 et seq., allowing payment of wage withholding collections to be directed to the friend of the court, an obligor shall be given the option of payment either to the friend of the court or the centralized collection agency.
  4. In any action for divorce where the parties have minor children, the friend of the court, if requested by the trial judge, shall make such investigation as will enable the friend of the court to ascertain all facts and circumstances that will affect the rights and interests of the children and will enable the court to enter just and proper orders and judgment concerning the care, custody, and maintenance of the children. The friend of the court shall make a report to the trial judge, at a time fixed by the judge, setting forth recommendations as to the care, custody, and maintenance of the children. The friend of the court may request the court to postpone the final submission of any case to give the friend of the court a reasonable time in which to complete the investigation.
  5. The friend of the court shall have authority to secure the issuance by the court of any order, rule, or citation necessary for the proper enforcement of orders and judgments in divorce actions concerning the custody, care, and maintenance of children. In performing duties under subsection (4) of this section the friend of the court shall attend the taking of depositions within the county, and shall have authority to cross-examine the witnesses. In the case of depositions taken on interrogatories, the friend of the court may file cross-interrogatories. The friend of the court shall be duly notified of the time and place of the taking of depositions in all divorce actions where the parties have minor children, and shall attend the taking of all such depositions when the friend of the court deems it necessary for the protection of the minor children, or when the friend of the court may be directed by the court to attend.
  6. The friend of the court shall not directly or indirectly represent any party to a divorce action except as herein authorized to represent the minor children of parties to a divorce action, but if an allowance is made for the support of a spouse and an infant child or children, may proceed to enforce the payment of the allowance made to the spouse also.
  7. Where a friend of the court is acting as a designee of the cabinet pursuant to KRS 205.712 and an applicant for Title IV-D services pursuant to KRS 205.721 has requested a modification of an existing child support order pursuant to a divorce or other judicial order, the friend of the court shall seek the modification, providing all jurisdictional requirements are met. The friend of the court’s representation shall extend only for the limited purpose of seeking a modification of an existing child support order consistent with the provisions of KRS 403.212 .
  8. The fiscal court of any county which has authorized the appointment of a friend of the court under this section shall, by resolution, fix a reasonable compensation for the friend of the court and make a reasonable allowance for necessary expenses, equipment, and supplies, payable out of the general fund of the county, upon approval of the appointing judge or judges.

History. Enact. Acts 1946, ch. 166; 1948, ch. 168; 1956, ch. 214; 1964, ch. 169, § 1; 1966, ch. 161; 1968, ch. 150, § 1; 1974, ch. 386, § 95; 1980, ch. 188, § 180, effective July 15, 1980; 1994, ch. 330, § 7, effective July 15, 1994; 1998, ch. 255, § 16, effective July 15, 1998.

NOTES TO DECISIONS

1.Attorney Fees.

A divorced mother is entitled to a fee for an attorney in resisting reduction of child maintenance payment. Thielmeier v. Thielmeier, 420 S.W.2d 557, 1967 Ky. LEXIS 110 ( Ky. 1967 ).

Cited:

Parsley v. Knuckles, 346 S.W.2d 1, 1961 Ky. LEXIS 276 ( Ky. 1961 ).

Opinions of Attorney General.

A “Friend of the Court” appointed under KRS this section is neither a state nor a county officer and therefore a county attorney may properly be appointed as “Friend of the Court” by the Circuit Judge provided he represents no parties in divorce suits, since such representation is prohibited by subsection (5) (now (6)) of this section. OAG 68-339 .

The Circuit Judge may properly designate the “Friend of the Court” appointed under this section as an official designated to receive and disburse payments under KRS 407.300 (repealed, now see KRS 407.5101 et seq.) and 407.320 . OAG 68-339 .

In order to enforce a child support order a custodial parent can make a choice as to whether to proceed in terms of a civil remedy or whether to seek prosecution. OAG 76-336 .

Although courts have inherent power to order paid all expenses necessary for holding court, the legislature has preempted the funding of the compensation and expenses of the friend of the court by enacting the express and explicit provisions of subsection (6) (now (8)) of this section. OAG 82-173 .

Since subsection (6) (now (8)) of this section is designed to fund the compensation and expenses of the friend of the court for any and all of the various functions which the friend of the court may be called upon to perform by the court, the friend of the court may not be additionally compensated for services rendered under subsections (3) and (4) (now (4) and (5)) of this section by taxing same as court costs to be paid by the appropriate party. OAG 82-173 .

The Circuit Court is presently controlled by subsection (6) (now (8)) of this section relating to the fiscal court’s funding of the compensation and expenses of the friend of the court; however, should a fiscal court fail, arbitrarily and capriciously, to fund such compensation and expenses such as to impair or destroy the efficient administration of justice in such cases, the court can require the fiscal court, even under mandamus, to fund such compensation and expenses to the “reasonable” level required by subsection (6) (now (8)) of this section. OAG 82-173 .

There is no statutory authority for the Circuit Judge’s ordering a fee, based on a percentage of the child support payments and added to such payments, for the purpose of reimbursing the fiscal court for the compensation and expenses of the “friend of the court.” OAG 82-173 .

Research References and Practice Aids

Kentucky Law Journal.

Howard, “Friend of the Court,” 45 Ky. L.J. 128 (1956).

Treatises

Petrilli, Kentucky Family Law, Custody of Children, § 26.19.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.23.

Petrilli, Kentucky Family Law, Juvenile Court, § 32.32.

Petrilli, Kentucky Family Law, Maintenance, § 25.28.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.13.

403.100. Compensation of guardian ad litem when petitioner is victim of KRS Chapter 507, 508, 509, or 510 offense committed by respondent.

In any court proceeding conducted pursuant to KRS 403.010 to 403.350 , if the respondent is incarcerated for a conviction pursuant to KRS Chapter 507, 508, 509, or 510, where the petitioner is the victim, the guardian ad litem shall be paid by the Finance and Administration Cabinet.

HISTORY: 2018 ch. 27, § 1, effective July 14, 2018.

Legislative Research Commission Note.

(7/14/2018). 2018 Ky. Acts ch. 27, sec. 2 provided that this statute as created in Section 1 of that Act shall be known and may be cited as Jeanette’s Law.

403.110. Purpose of chapter.

This chapter shall be liberally construed and applied to promote its underlying purposes, which are to:

  1. Strengthen and preserve the integrity of marriage and safeguard family relationships;
  2. Promote the amicable settlement of disputes that have arisen between parties to a marriage;
  3. Mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage;
  4. Make reasonable provision for spouse and minor children during and after litigation; and
  5. Make the law of legal dissolution of marriage effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis for its dissolution.

History. Enact. Acts 1972, ch. 182, § 1.

NOTES TO DECISIONS

1.Stability of Settlements.

The No-Fault Divorce Act clearly promotes the settlement of disputes by agreement, and the law favors stability in such settlements. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

Unpublished Decision Nowhere did Ky. Rev. Stat. Ann. § 403.180 require the agreement to contain a specific caption or form, only that it be in writing; Ky. Rev. Stat. Ann. §§ 403.180 , 403.110 supported the conclusion the mediated agreement qualified as a separation agreement, and incorporation of the agreement into the dissolution decree was not improper. Baas v. Baas, 2018 Ky. App. LEXIS 275 (Ky. Ct. App. Nov. 30, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 977 (Ky. Ct. App. Nov. 30, 2018).

2.Burden of Proof.

Given the nature of the no-fault divorce statute, coupled with the desirability of imparting some degree of finality to settlement agreements, a party challenging an agreement as unconscionable should have a relatively high burden of proof, and since the trial court is in the best position to judge the circumstances surrounding a separation agreement, its finding on the issue of conscionability should not be set aside on appeal unless there is some evidence of fraud, undue influence, overreaching, or evidence of a change of circumstances since the execution of the original agreement. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

3.Change of Child’s Name.

Since the Circuit Court is vested with continuing jurisdiction of custody matters attendant upon the dissolution of a marriage, and because this chapter mandates that the court safeguard family relationships and mitigate potential harm to parents and children, a Circuit Court has jurisdiction to enjoin a mother from changing a child’s name to his stepfather’s name, otherwise, an unsubstantial statutory right to apply for a name change would take precedence over an express statement of public policy favoring preservation of family relationships. Burke v. Hammonds, 586 S.W.2d 307, 1979 Ky. App. LEXIS 461 (Ky. Ct. App. 1979).

An unsubstantial statutory right to apply for a name change as provided in KRS 401.020 does not take precedence over express statements of public policy favoring preservation of family relationships such as those found in subdivisions (1) and (3) of this section. Likins v. Logsdon, 793 S.W.2d 118, 1990 Ky. LEXIS 59 ( Ky. 1990 ).

4.Child Custody.

Where McCracken County had been the residence of both divorced spouses and their children for the last two years, evidence concerning custody of children could best be produced by witnesses living in that county, and it was a convenient forum for the controversy, there was no statutory prohibition or inconsistency in allowing the case to be heard in McCracken County instead of Union County where the divorce decree and custody agreement were originally entered, since the enactment of KRS 403.110 et seq. and former KRS 403.400 et seq. has eroded the doctrine of exclusive and continuing jurisdiction of the original court in custody cases, and where former law regarding jurisdiction in custody cases gave sufficient guidance and direction to establish the proper forum. Shumaker v. Paxton, 613 S.W.2d 130, 1981 Ky. LEXIS 219 ( Ky. 1981 ), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ).

5.Maintenance Award.

A maintenance award in a fixed amount to be paid over a definite period of time is not subject to modification either before or after its termination date; to permit such awards to be modified would do nothing toward finalizing distasteful litigation and would certainly frustrate the purposes sought by this section. Dame v. Dame, 628 S.W.2d 625, 1982 Ky. LEXIS 233 ( Ky. 1982 ), overruled, Woodson v. Woodson, 338 S.W.3d 261, 2011 Ky. LEXIS 71 ( Ky. 2011 ).

Cited:

Chapman v. Chapman, 498 S.W.2d 134, 1973 Ky. LEXIS 288 ( Ky. 1973 ); Edwardson v. Edwardson, 798 S.W.2d 941, 1990 Ky. LEXIS 124 ( Ky. 1990 ); John v. John, 893 S.W.2d 373, 1995 Ky. App. LEXIS 5 (Ky. Ct. App. 1995); Pennington v. Marcum, 266 S.W.3d 759, 2008 Ky. LEXIS 235 ( Ky. 2008 ).

Research References and Practice Aids

Kentucky Law Journal.

Miller, Kentucky’s New Dissolution of Marriage Law, 61 Ky. L.J. 980 (1973).

Comments, That Was No Wife, That Was My Lady: Is Marvin v. Marvin Appropriate for Kentucky? 66 Ky. L.J. 707 (1977-1978).

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Kentucky Law Survey, Harris and Donoho, Domestic Relations, 68 Ky. L.J. 753 (1979-1980).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Northern Kentucky Law Review.

Notes, Workers' Compensation ? Marital Property ? Johnson v. Johnson, 10 N. Ky. L. Rev. 531 (1983).

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Treatises

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.3.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, § 21.1.

Petrilli, Kentucky Family Law, Maintenance, § 25.17.

Petrilli, Kentucky Family Law, Separation Agreements, § 19.1.

403.120. Marriage — Court may declare invalid.

  1. The Circuit Court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:
    1. A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or deformity or because of the influence of alcohol, drugs, or other incapacitating substances, or a party was induced to enter into a marriage by force or duress, or by fraud involving the essentials of marriage;
    2. A party lacks the physical capacity to consummate the marriage by sexual intercourse, and the other party did not at the time the marriage was solemnized know of the incapacity;
    3. The marriage is prohibited.
  2. A declaration of invalidity under paragraph (a), (b) or (c) of subsection (1) may be sought by any of the following persons and must be commenced within the times specified, but only for the causes set out in paragraph (a) may a declaration of invalidity be sought after the death of either party to the marriage:
    1. For a reason set forth in paragraphs (a) and (b) of subsection (1), by party or by the legal representative of the party who lacked capacity to consent, who was the offended party or did not know of the incapacity, no later than 90 days after the petitioner obtained knowledge of the described condition;
    2. For the reason set forth in paragraph (c) of subsection (1), by either party, no later than one (1) year after the petitioner obtained knowledge of the described condition.

History. Enact. Acts 1972, ch. 182, § 2.

NOTES TO DECISIONS

1.Application.

The provisions of this section do not apply primarily to incestuous marriages under KRS 402.010 but rather encompasses all void and prohibited marriages, such as a bigamous marriage. Ferguson v. Ferguson, 610 S.W.2d 925, 1980 Ky. App. LEXIS 410 (Ky. Ct. App. 1980).

Even though there was generally no appeal allowed from a divorce action, an appeal was permitted if the divorce judgment was void. However, a motion to set aside a divorce decree under CR 60.02 based on the fact that a marriage had been annulled by the Roman Catholic Church was properly denied because the motion was untimely filed, there was no evidence of civil fraud, and constitutional reasons did not allow an interface between church and state law. Age v. Age, 340 S.W.3d 88, 2011 Ky. App. LEXIS 23 (Ky. Ct. App. 2011).

2.Challenge of Marriage in Probate Proceeding.

Where intestate decedent and widow had married six days prior to entry of final divorce decree between decedent and his prior wife, decedent’s son had no standing to attack validity of the marriage ten years later, since subsection (2) (b) of this section allows only parties to the marriage to attack it, and only then within one year of obtaining knowledge of a prohibitive condition; thus, the District Court correctly appointed the widow as administratrix of the estate under subsection (1) of KRS 395.040 , despite the fact that the bigamous marriage was void and prohibited under KRS 402.020 . Ferguson v. Ferguson, 610 S.W.2d 925, 1980 Ky. App. LEXIS 410 (Ky. Ct. App. 1980).

3.Force or Duress.

Husband who relied upon duress as ground for annulment or divorce must show that his consent to marry was influenced by fear from threats and that his will was overcome by such threats. Shepherd v. Shepherd, 174 Ky. 615 , 192 S.W. 658, 1917 Ky. LEXIS 226 ( Ky. 1917 ) (decided under prior law).

Although threats and demonstrations to do bodily harm to one unless he married another were made, if he was not influenced by threats to enter into marriage, but acted from other motives, there was no duress entitling him to divorce. Shepherd v. Shepherd, 174 Ky. 615 , 192 S.W. 658, 1917 Ky. LEXIS 226 ( Ky. 1917 ) (decided under prior law).

4.Fraud.

Fact that defendant wife, prior to marriage, had been guilty of fornication or adultery and had given birth to illegitimate child, and did not reveal this to her prospective husband, did not constitute such fraud as would vitiate marriage and did not constitute grounds for divorce. Wesley v. Wesley, 181 Ky. 135 , 204 S.W. 165, 1918 Ky. LEXIS 522 ( Ky. 1918 ) (decided under prior law).

5.Inability to Consummate Marriage.

Where it was physically impossible for wife to have sexual intercourse and she knew the facts before her marriage, but concealed them from the husband until after marriage, the husband was entitled to a divorce even though surgery might remove the malformation. Mutter v. Mutter, 123 Ky. 754 , 97 S.W. 393, 30 Ky. L. Rptr. 76 , 1906 Ky. LEXIS 211 ( Ky. 1906 ) (decided under prior law).

A party seeking a divorce on the ground of malformation of the other party preventing sexual intercourse has the burden of proving the ground. Barnett v. Barnett, 292 Ky. 672 , 167 S.W.2d 845, 1943 Ky. LEXIS 727 ( Ky. 1943 ) (decided under prior law).

6.Annulment.

Judges were entitled to absolute judicial immunity because the claimant failed to set forth sufficient factual allegations to support his claims that the judges acted in complete absence of all jurisdiction since the annulment petition was filed by a representative of family services, which was appointed as the ward's guardian eleven days before the annulment petition was filed. Anderson v. Dickson, 715 Fed. Appx. 481, 2017 FED App. 0593N, 2017 U.S. App. LEXIS 21428 (6th Cir. Ky. 2017 ), cert. denied, 138 S. Ct. 1558, 200 L. Ed. 2d 754, 2018 U.S. LEXIS 2457 (U.S. 2018).

Cited:

Knott v. Garriott, 784 S.W.2d 603, 1989 Ky. App. LEXIS 156 (Ky. Ct. App. 1989); Eck v. Eck, 793 S.W.2d 858, 1990 Ky. App. LEXIS 110 (Ky. Ct. App. 1990).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Physical Incapacity), Form 252.02.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Prohibited Marriage), Form 252.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Annulment (Declaration of Invalidity), § 252.00.

Petrilli, Kentucky Family Law, Annulment of Marriage, §§ 10.1, 10.2, 10.5, 10.9, 10.17.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.1.

Petrilli, Kentucky Family Law, Marriage in General, § 1.4e.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Forms 2.2, 2.3, 2.12, 2.19.

403.130. Rules of Civil Procedure to apply.

  1. The Rules of Civil Procedure apply to all proceedings under this chapter, except as otherwise provided in this chapter.
  2. A proceeding for dissolution of marriage, legal separation, or declaration of invalidity of marriage shall be entitled “In re the Marriage of  . . . . . . . . . . . . . . . . . . . .  and  . . . . . .” A custody or support proceeding shall be entitled “In re the (Custody) (Support) of  . . . . . . . . . . . . . . . . . . . . .”
  3. The initial pleading in all proceedings under this chapter shall be denominated a petition. A responsive pleading shall be denominated a response. Other pleadings, and all pleadings in other matters under this chapter, shall be denominated as provided in the Rules of Civil Procedure.
  4. In this chapter, “decree” includes “judgment.”
  5. A decree of dissolution or of legal separation, if made, shall not be awarded to one (1) of the parties, but shall provide that it affects the status previously existing between the parties in the manner decreed.

History. Enact. Acts 1972, ch. 182, § 3.

NOTES TO DECISIONS

1.Statutory Procedural Requirements.

Under subsection (2) of CR 1, as complemented and made applicable to divorce proceedings by subsection (1) of this section, statutory procedural requirements prevail over inconsistent procedures in the Civil Rules in all statutory proceedings; accordingly, the failure of parties in a divorce action to request the trial court for more definite findings, which ordinarily would prevent the Supreme Court from giving relief under CR 52.04, was not fatal to an appeal challenging the perfunctory manner in which the trial judge made his findings where the trial judge did not comply with the procedural requirements of KRS 403.190 and did not make specific findings of fact as required by CR 52.01. Hollon v. Hollon, 623 S.W.2d 898, 1981 Ky. LEXIS 292 ( Ky. 1981 ), overruled, Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

Cited:

Mathews v. Mathews, 731 S.W.2d 832, 1987 Ky. App. LEXIS 501 (Ky. Ct. App. 1987).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit and Motion for Appointment of Warning Order Attorney, Form 253.08.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Child Support — Child Born Out of Wedlock, Form 263.23.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Caldwell’s Kentucky Form Book, 5th Ed., Response, Form 253.12.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.3, 23.18, 23.22.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.27.

Petrilli, Kentucky Family Law, Maintenance, § 25.30.

403.135. Protection of personal identifiers in domestic relations cases.

  1. If another section of this chapter or KRS 407.5311 or 407.5602 requires the provision of a personal identifier in a pleading, document, or exhibit filed with the court, the party making the filing shall provide the personal identifier in accordance with the Kentucky Rules of Civil Procedure.
  2. The clerk of the court shall allow the unredacted sealed copy of the pleading, document, or exhibit containing personal identifiers to be accessed only by a party to the case, an attorney of record in the case, a judge of the court or other authorized court personnel, a duly authorized employee or agent of the Cabinet for Health and Family Services involved in child support matters attendant to the case, or a person authorized to view the copy by specific order of the court.
  3. As used in this section, “personal identifier” means a Social Security number, name of minor child, date of birth, or financial account number.

HISTORY: Enact. Acts 2006, ch. 126, § 1, effective July 12, 2006; 2015 ch. 18, § 73, effective June 24, 2015.

Dissolution — Legal Separation

403.140. Marriage — Court may enter decree of dissolution or separation.

  1. The Circuit Court shall enter a decree of dissolution of marriage if:
    1. 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;
    2. The court finds that the conciliation provisions of KRS 403.170 either do not apply or have been met;
    3. The court finds that the marriage is irretrievably broken; and
    4. To the extent it has jurisdiction to do so, the court has considered, approved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse, and the disposition of property.
  2. If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects, in which latter event the other provisions of this chapter shall apply.

History. Enact. Acts 1972, ch. 182, § 4.

NOTES TO DECISIONS

1.In General.

The marital relation is a sacred one, and should not be dissolved, unless the grounds authorizing it are clearly established. Bone v. Bone, 200 Ky. 736 , 255 S.W. 530, 1923 Ky. LEXIS 176 ( Ky. 1923 ) (decided under prior law).

The bonds of matrimony should not be severed because one or the other spouse has shortcomings. Dean v. Dean, 314 Ky. 872 , 238 S.W.2d 672, 1951 Ky. LEXIS 821 ( Ky. 1951 ) (decided under prior law).

2.Procedure.

A decree of dissolution of the marriage could be entered prior to the final disposition of the matters enumerated in this section. Putnam v. Fanning, 495 S.W.2d 175, 1973 Ky. LEXIS 391 ( Ky. 1973 ).

3.Legal Separation.

Where the trial court found that there had been an irretrievable breakdown of the marriage and where the husband objected to the request which the wife had made for a legal separation, the trial court was required by this section to dissolve the marriage rather than adjudge a legal separation. Smith v. Smith, 497 S.W.2d 418, 1973 Ky. LEXIS 323 ( Ky. 1973 ).

4.Dissolution.
5.— Irretrievably Broken.

If the trial court clearly erred by finding that the marriage was not irretrievably broken, then under CR 52.01 his findings may be set aside and if the evidence admits of but one conclusion, that is that the marriage is irretrievably broken, dissolution of the marriage must be granted. Laffosse v. Laffosse, 564 S.W.2d 220, 1978 Ky. App. LEXIS 497 (Ky. Ct. App. 1978).

Where both parties testified that the marriage was irretrievably broken and the wife indicated that she wanted a legal separation, rather than dissolution, simply to give her financial security, the trial court’s finding that the marriage was not irretrievably broken was clearly erroneous and would be reversed and remanded with directions to dissolve the marriage. Laffosse v. Laffosse, 564 S.W.2d 220, 1978 Ky. App. LEXIS 497 (Ky. Ct. App. 1978).

6.Jurisdiction.

Subsection (1)(d) of this section is neither a grant nor a withdrawal of jurisdiction, but merely requires the trial court to dispose of issues of custody, support, maintenance and property division, if it otherwise has jurisdiction to do so, when it enters a decree of dissolution of marriage. Hall v. Hall, 585 S.W.2d 384, 1979 Ky. LEXIS 272 ( Ky. 1979 ).

Ordinarily, actual residence in the state for the requisite statutory period is required before a dissolution action may be maintained; however, there is an exception to that rule when the divorcing parties’ absence from the state is temporary in nature. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

Where the parties left Kentucky so that husband could receive advanced training in oral surgery, but they used wife’s parents’ Kentucky address as their permanent address, registered and insured their car in Kentucky, kept Kentucky drivers’ licenses and indicated that they hoped to return to Kentucky, the evidence showed that, at the time the parties left, they only intended to be temporarily absent from this jurisdiction; therefore, the court’s finding that the 180-day residence requirement had been met was not erroneous. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

If the question of jurisdictional residence is raised in the lower court, the lower court’s determination that it has jurisdiction cannot be questioned if there is any evidence to show the necessary residence. Karahalios v. Karahalios, 848 S.W.2d 457, 1993 Ky. App. LEXIS 39 (Ky. Ct. App. 1993).

As it was undisputed that a former wife had lived in Kentucky for 180 days before she filed for divorce, even assuming that she fraudulently alleged her former husband had lived there for 180 days as well — an assumption that found no support in the record — the Kentucky Circuit Court had subject matter over the parties’ divorce action under KRS 403.140(1)(a). Jeffrey v. Jeffrey, 153 S.W.3d 849, 2004 Ky. App. LEXIS 91 (Ky. Ct. App. 2004).

Although she resided in St. Maarten for much of the marriage, at the time the husband filed his petition, there was absolutely no evidence that it was the wife’s intent to establish permanent residency in that country and abandon her Kentucky domicile; thus, the Family Court had subject matter jurisdiction and personal jurisdiction over the parties to grant the dissolution under KRS 403.140 . Fehr v. Fehr, 284 S.W.3d 149, 2008 Ky. App. LEXIS 306 (Ky. Ct. App. 2008).

Trial court properly exercised jurisdiction over the parties’ divorce proceedings despite the fact that they had been absent from the state because the parties left Kentucky for the husband to receive advanced training in oral surgery but they planned to return, used a Kentucky address as their permanent address, registered and insured their car in Kentucky, and kept Kentucky drivers’ licenses, thus, only being temporarily absent and permitting jurisdiction. Brockman v. Brockman, 2019 Ky. App. LEXIS 11 (Ky. Ct. App. Feb. 1, 2019), review denied, ordered not published, 2019 Ky. LEXIS 193 (Ky. June 5, 2019).

7.Marital Property.

The concept of “team or joint efforts” is not germane to the determination of whether property is marital or not; at most it may convert the increase in value of nonmarital property into marital property. Stallings v. Stallings, 606 S.W.2d 163, 1980 Ky. LEXIS 255 ( Ky. 1980 ).

Property acquired by a married person after an “actual” vis-a-vis “legal” separation is marital property. Stallings v. Stallings, 606 S.W.2d 163, 1980 Ky. LEXIS 255 ( Ky. 1980 ).

8.Residence.

Actual residence is that place in which a person abides. Tipton v. Tipton, 87 Ky. 243 , 8 S.W. 440, 10 Ky. L. Rptr. 252 , 1888 Ky. LEXIS 72 ( Ky. 1888 ).

Requirement of former section governing proof of divorce was that of an actual, rather than legal, residence. Tipton v. Tipton, 87 Ky. 243 , 8 S.W. 440, 10 Ky. L. Rptr. 252 , 1888 Ky. LEXIS 72 ( Ky. 1888 ) (decided under prior law).

Actual residence, as opposed to legal residence or domicile, is necessary to give the court jurisdiction of divorce suit. Lanham v. Lanham, 300 Ky. 237 , 188 S.W.2d 439, 1945 Ky. LEXIS 529 ( Ky. 1945 ) (decided under prior law).

Cited:

Shepherd v. Mann, 490 S.W.2d 760, 1973 Ky. LEXIS 646 ( Ky. 1973 ); Bell v. Bell, 494 S.W.2d 517, 1973 Ky. LEXIS 446 ( Ky. 1973 ); Purdom v. Purdom, 498 S.W.2d 131, 1973 Ky. LEXIS 287 (Ky. 1973); Hummeldorf v. Hummeldorf, 616 S.W.2d 794, 1981 Ky. App. LEXIS 242 (Ky. Ct. App. 1981); In re Air Crash Disaster at Gander, 660 F. Supp. 1202, 1987 U.S. Dist. LEXIS 4398 (W.D. Ky. 1987 ); Kirilenko v. Kirilenko, 505 S.W.3d 766, 2016 Ky. LEXIS 562 ( Ky. 2016 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Crome, Domestic Relations, 69 Ky. L.J. 581 (1980-81).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Graham, Using Formulas to Separate Marital and Nonmarital Property: A Policy Oriented Approach to the Division of Appreciated Property Upon Divorce, 73 Ky. L.J. 41 (1984-85).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Northern Kentucky Law Forum.

Sheldon, From Commandments to Consent: Ohio in the Divorce Reform Era, 2 N. Ky. St. L.F. 119 (1974-75).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Decree of Dissolution of Marriage, Form 253.30.

Caldwell’s Kentucky Form Book, 5th Ed., Petition For Legal Separation, Form 253.04.

Petrilli, Kentucky Family Law, Annulment of Marriage, §§ 10.1, 10.6.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.1, 23.3, 23.18, 23.34.

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.23, 24.27.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), §§ 20.1, 20.3.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, §§ 21.4, 21.5.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.1.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Forms 2.1, 2.10, 2.11, 2.16, 2.18, 2.21.

403.150. Procedure — Commencement of action, pleadings, abolition of existing defenses.

  1. All proceedings under this chapter are commenced in the manner provided by the Rules of Civil Procedure.
  2. The verified petition in a proceeding for dissolution of marriage or legal separation shall allege the marriage is irretrievably broken and shall set forth:
    1. The age, occupation, Social Security number, and residence of each party, provided in accordance with KRS 403.135 , and his length of residence in this state. If domestic violence and abuse, as defined in KRS 403.720 , is alleged by either party, the party filing the petition shall certify the existence and status of any domestic violence protective orders. The party filing the petition and alleging the abuse may substitute the party’s attorney’s address as the address of the party and any minor children;
    2. The date of the marriage and the place at which it was registered;
    3. That the parties are separated and the date on which the parties separated;
    4. The names, ages, Social Security numbers, and addresses, provided in accordance with KRS 403.135 , of any living infant children of the marriage, and whether the wife is pregnant;
    5. Any arrangements as to custody, visitation, and support of the children and the maintenance of a spouse; and
    6. The relief sought.
  3. Either or both parties to the marriage may initiate the proceeding.
  4. If a proceeding is commenced by one (1) of the parties, the other party must be served in the manner provided by the Rules of Civil Procedure and may file a verified response.
  5. Previously existing defenses to divorce and legal separation, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are abolished.
  6. The court may join additional parties proper for the exercise of its authority to implement this chapter.
  7. When the wife is pregnant at the time the petition is filed, the court may continue the case until the pregnancy is terminated.

History. Enact. Acts 1972, ch. 182, § 5; 1992, ch. 169, § 1, effective July 14, 1992; 1998, ch. 255, § 17, effective July 15, 1998; 2006, ch. 126, § 2, effective July 12, 2006.

NOTES TO DECISIONS

1.Construction.

Although appellant husband, who had been adjudicated to be disabled and incompetent, contended that a disinterested guardian could bring a dissolution action on his behalf, the use of the words “either” or “both” in Ky. Rev. Stat. Ann. § 403.150(3) unambiguously indicated that only the actual parties to the marriage may commence a dissolution action. Riehle v. Riehle, 2015 Ky. App. LEXIS 148 (Ky. Ct. App. Oct. 30, 2015), aff'd, 504 S.W.3d 7, 2016 Ky. LEXIS 561 ( Ky. 2016 ).

2.Joinder of Parties.

Trial court was entitled to invoke KRS 403.150(6) and join two business entities as additional parties based upon the husband’s continued failure to abide by the trial court’s orders requiring him to pay child support, maintenance, and a property settlement, as well as the fact that one business was solely-owned by the husband and the second business was owned jointly by the husband and wife; it was not a case where innocent third-party shareholders would be harmed. Medical Vision Group, P.S.C. v. Philpot, 261 S.W.3d 485, 2008 Ky. LEXIS 186 ( Ky. 2008 ).

Family court did not abuse its discretion in denying the joinder motion filed by the husband’s parents to collect a debt jointly owed by the husband and wife because the proper action to take to collect the debt would be for the husband or parents to obtain a common law judgment or attempt to collect the debt through a separate lawsuit. Fortwengler v. Fortwengler, 2012 Ky. App. LEXIS 295 (Ky. Ct. App. Dec. 21, 2012), review denied, ordered not published, 2013 Ky. LEXIS 671 (Ky. Dec. 11, 2013).

Cited:

Oliver v. Yates, 555 S.W.2d 263, 1977 Ky. LEXIS 504 ( Ky. 1977 ); Mathews v. Mathews, 731 S.W.2d 832, 1987 Ky. App. LEXIS 501 (Ky. Ct. App. 1987); Stone v. Dubarry, 513 S.W.3d 325, 2016 Ky. LEXIS 557 ( Ky. 2016 ).

Opinions of Attorney General.

A civil summons is unnecessary in a divorce case when the suit is filed as a joint petition and the husband and wife sign an agreement and waiver. OAG 75-574 .

Where the husband has been in prison for two and one-half years without physical access to his wife and where the wife was pregnant on the filing of the divorce petition the court should continue the action and not terminate it as provided by subsection (7) of this section since the wife anticipated having a baby of a man extrinsic to the subject marital relationship while the husband is in prison goes a long way toward establishing the “irretrievable breakdown” proposition provided for in KRS 403.170 and since KRS 406.011 permits the court to make a determination of whether the evidence shows that the marital relationship between the husband and wife ceased at least 10 months prior to the medically expected birth of the child. OAG 76-465 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Notes, Antenuptial Contracts and Divorce in Kentucky: A Better Approach, 72 Ky. L.J. 867 (1983-84).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Dissolution of Marriage, Form 253.06.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Divorce, § 253.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Verification, § 33.00.

Caldwell’s Kentucky Form Book, 5th Ed., Response, Form 253.12.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.3, 23.5, 23.9, 23.18, 23.25.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.4.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, § 21.1.

Petrilli, Kentucky Family Law, Legal Defenses to Dissolution Action, § 22.1.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Forms 2.1, 2.2, 2.3, 2.5, 2.6, 2.11, 2.12.

403.160. Temporary orders — Maintenance, child support, injunction — Disclosure of information on domestic violence or child abuse.

  1. In a proceeding for dissolution of marriage or for legal separation, or in a proceeding for disposition of property or for maintenance or support following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, either party may move for temporary maintenance. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested.
    1. In a proceeding for dissolution of marriage, legal separation, or child support, either party, with notice to the opposing party, may move for temporary child support. The motion shall be accompanied by an affidavit setting forth the number of children of the marriage and the information required to calculate the combined adjusted parental gross income set forth in KRS 403.212(2)(h), and the Social Security numbers, provided in accordance with KRS 403.135 , of all parties subject to the motion. The court shall, within fourteen (14) days from the filing of said motion, order an amount of temporary child support based upon the child support guidelines as provided by law, and the ordered child support shall be retroactive to the date of the filing of the motion unless otherwise ordered by the court. (2) (a) In a proceeding for dissolution of marriage, legal separation, or child support, either party, with notice to the opposing party, may move for temporary child support. The motion shall be accompanied by an affidavit setting forth the number of children of the marriage and the information required to calculate the combined adjusted parental gross income set forth in KRS 403.212(2)(h), and the Social Security numbers, provided in accordance with KRS 403.135 , of all parties subject to the motion. The court shall, within fourteen (14) days from the filing of said motion, order an amount of temporary child support based upon the child support guidelines as provided by law, and the ordered child support shall be retroactive to the date of the filing of the motion unless otherwise ordered by the court.
    2. Upon a showing of good cause, either party may move the court to enter an order for temporary child support without written or oral notice to the adverse party. After reviewing the affidavit required by paragraph (a) of this subsection, the court may issue a temporary child support order based upon the child support guidelines. The order shall provide that the order becomes effective seven (7) days following service of the order and movant’s affidavit upon the adverse party unless the adverse party, within the seven (7) day period, files a motion for a hearing before the court. The motion for hearing shall be accompanied by the affidavit required by paragraph (a) of this subsection. Pending the hearing, the adverse party shall pay child support in an amount based upon the guidelines and the adverse party’s affidavit. The child support order entered following the hearing shall be retroactive to the date of the filing of the motion for temporary support unless otherwise ordered by the court.
  2. As part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, either party may request the court to issue a temporary injunction or restraining order pursuant to the Rules of Civil Procedure.
  3. If the court or agent of the court is made aware that there is reasonable evidence of domestic violence or child abuse, the court shall determine whether disclosure to any other person of the information could be harmful to the parent or child, and if the court determines that disclosure to any person could be harmful, the court and its agents shall not make the disclosure.
  4. On the basis of the showing made and in conformity with KRS 403.200 , the court may issue a temporary injunction or restraining order and an order for temporary maintenance in amounts and on terms just and proper in the circumstances.
  5. A temporary order or temporary injunction:
    1. Does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;
    2. May be revoked or modified before final decree on a showing of the facts necessary to revocation or modification under the circumstances; and
    3. Terminates when the final decree is entered or when the petition for dissolution or legal separation is voluntarily dismissed.

History. Enact. Acts 1972, ch. 182, § 6; 1990, ch. 418, § 7, effective July 13, 1990; 1994, ch. 330, § 9, effective July 15, 1994; 1996, ch. 365, § 5, effective July 15, 1996; 1998, ch. 255, § 18, effective July 15, 1998; 2000, ch. 430, § 15, effective July 14, 2000; 2006, ch. 126, § 3, effective July 12, 2006; 2021 ch. 47, § 6, effective June 29, 2021.

Legislative Research Commission Notes.

(7/14/2000). Although House Committee Amendment 1 (adopted by the House of Representatives and concurred in by the Senate) to the General Assembly version of Senate Bill 218 eliminated a new paragraph (c) in KRS 403.212(2) that had required a conforming amendment to this statute to change a cross-reference from “KRS 403.212(2)(g)” to “KRS 403.212(2)(h)” in subsection (2)(a) of this statute, the conforming amendment was not corrected in the floor amendment. Because of this omission and because of the context of the cross-reference, the change in subsection (2)(a) of this statute constitutes a manifest clerical or typographical error and has not been included in codification. See KRS 7.136(1)(h).

NOTES TO DECISIONS

1.Procedure.

A decree of dissolution of the marriage could be entered prior to the determination of maintenance. Putnam v. Fanning, 495 S.W.2d 175, 1973 Ky. LEXIS 391 ( Ky. 1973 ).

2.Temporary Maintenance.

Where a husband made monthly payments to the wife that were more than the husband was ordered to pay for temporary maintenance, it was error to find that the husband owed a maintenance arrearage. There was no statutory requirement that temporary maintenance be paid out of non-marital property and the husband used a portion of what was later determined to be the wife’s share of monthly consulting payments to satisfy the husband’s temporary maintenance obligation to the wife. Horvath v. Horvath, 250 S.W.3d 316, 2008 Ky. LEXIS 103 ( Ky. 2008 ).

3.Discretion of Court.

The award of temporary alimony is within the sound discretion of the court. Kelly v. Kelly, 179 Ky. 586 , 200 S.W. 925, 1918 Ky. LEXIS 243 ( Ky. 1918 ) (decided under prior law). See Campbell v. Campbell, 50 S.W. 849, 21 Ky. L. Rptr. 19 (1899); Wills v. Wills, 168 Ky. 35 , 181 S.W. 619, 1916 Ky. LEXIS 497 ( Ky. 1916 ); Blackburn v. Blackburn, 198 Ky. 12 , 247 S.W. 1111, 1923 Ky. LEXIS 370 ( Ky. 1923 ) (decided under prior law).

The allowance of alimony pendente lite, or pending appeal, is within the sound discretion of the court and therefore cannot be controlled by writ of mandamus. Cadden v. Smith, 264 S.W.2d 71, 1954 Ky. LEXIS 648 ( Ky. 1954 ), overruled, Penrod v. Penrod, 489 S.W.2d 524, 1972 Ky. LEXIS 33 ( Ky. 1972 ), overruled in part, Penrod v. Penrod, 489 S.W.2d 524, 1972 Ky. LEXIS 33 ( Ky. 1972 ) decided under prior law, overruled on other grounds, Penrod v. Penrod, 489 S.W.2d 524, 1972 Ky. LEXIS 33 (Ky. 1972) (decided under prior law).

4.Factors Considered.

Considerations involved in setting an amount of temporary alimony include the husband’s income, estate, and earning capacity, the wife’s age, health, dependence and station in life, the custody of the children and the reasons for which the suit for alimony was brought. Kelly v. Kelly, 179 Ky. 586 , 200 S.W. 925, 1918 Ky. LEXIS 243 ( Ky. 1918 ) (decided under prior law).

In fixing the amount of the allowance to the wife pending divorce, many elements must be considered by the court, such as the financial condition of the respective parties and the wife’s age, health, and station in life. Brandenburg v. Brandenburg, 246 Ky. 546 , 55 S.W.2d 351, 1932 Ky. LEXIS 786 ( Ky. 1932 ) (decided under prior law).

Standard by which temporary alimony is to be fixed is the husband’s ability and the wife’s necessities measured by the social position in which her marriage placed her. Ahrens v. Ahrens, 299 Ky. 497 , 185 S.W.2d 694, 1945 Ky. LEXIS 441 ( Ky. 1945 ) (decided under prior law).

5.Award Denied.

Where, after the wife was denied a divorce, she left the husband and their children without justification and the husband was anxious for her to return, she was not entitled to alimony or maintenance during pendency of her appeal. Singleton v. Singleton, 302 S.W.2d 121, 1957 Ky. LEXIS 177 ( Ky. 1957 ) (decided under prior law).

6.Award Proper.

Evidence that wife was under indictment for attempt to kill husband established no abuse of discretion in allowance of maintenance pendente lite to wife. Coffee v. Coffee, 247 S.W.2d 501, 1952 Ky. LEXIS 705 ( Ky. 1952 ) (decided under prior law).

7.Credit Against Permanent Award.

Where the chancellor considered the amounts paid as alimony pendente lite in setting the amount of permanent alimony, the husband had no right to credit the amounts so paid against permanent alimony awarded. Hicks v. Hicks, 290 S.W.2d 483, 1956 Ky. LEXIS 325 ( Ky. 1956 ) (decided under prior law).

8.Credit Against Temporary Award.

Trial court did not err in allowing husband credit on arrears of temporary alimony for sums paid to wife by federal government while he was in service. Reid v. Reid, 306 Ky. 305 , 207 S.W.2d 16, 1947 Ky. LEXIS 1006 ( Ky. 1947 ) (decided under prior law).

9.Enforcement.

It was improper to issue an execution on an order directing husband to pay to wife a sum representing temporary alimony in arrears where such order was entered on wife’s motion and no notice was given husband. Reid v. Reid, 306 Ky. 305 , 207 S.W.2d 16, 1947 Ky. LEXIS 1006 ( Ky. 1947 ) (decided under prior law).

10Appealability.

An allowance for maintenance pending an action for divorce does not constitute a final or appealable judgment under CR 54.01. Lebus v. Lebus, 382 S.W.2d 873, 1964 Ky. LEXIS 367 ( Ky. 1964 ) (decided under prior law).

An order denying the allowance of temporary maintenance and support in a divorce proceeding was interlocutory and not appealable. Cannon v. Cannon, 434 S.W.2d 48, 1968 Ky. LEXIS 226 ( Ky. 1968 ) (decided under prior law).

Opinions of Attorney General.

In order to obtain a temporary restraining order the provisions of CR 65.05 must be complied with and such an order may no longer be issued against a husband on an injunction bond without surety. OAG 72-510 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit in Support of Motion for Temporary Child Support, Form 263.04.

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Temporary Child Support, Form 263.03.

Caldwell’s Kentucky Form Book, 5th Ed., Order of Temporary Child Support, Form 263.13.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Child Support, § 263.00.

Caldwell’s Kentucky Form Book, 5th Ed., Restraining Order, Form 253.51.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.23, 23.25, 23.37.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.3.

Petrilli, Kentucky Family Law, Maintenance, §§ 25.1, 25.3, 25.4, 25.9, 25.30.

Petrilli, Kentucky Family Law, Property Rights, § 14.3.

Petrilli, Kentucky Family Law, Separation Agreements, § 19.9.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.1.

Petrilli, Kentucky Family Law, Support of the Family, §§ 16.3, 16.8.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.14.

403.170. Marriage — Irretrievable breakdown.

  1. If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after hearing, shall make a finding whether the marriage is irretrievably broken. 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. The court may order a conciliation conference as a part of the hearing.
  2. If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of reconciliation, and shall:
    1. Make a finding whether the marriage is irretrievably broken; or
    2. Continue the matter for further hearing not fewer than 30 nor more than 60 days later, or as soon thereafter as the matter may be reached on the court’s calendar, and may suggest to the parties that they seek counseling.

      The court, at the request of either party shall, or on its own motion may, order a conciliation conference. At the adjourned hearing the court shall make a finding whether the marriage is irretrievably broken.

  3. A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation.

History. Enact. Acts 1972, ch. 182, § 7; 1978, ch. 236, § 2, effective June 17, 1978.

NOTES TO DECISIONS

1.Conciliation Conference.

Since the only instance in which a conciliation conference is made mandatory occurs under subsection (2)(b) of this section, which is stated as part of an alternative procedure to subsection (2)(a) under which the court may instead find that the marriage is irretrievably broken, court could properly find that the provisions of this section do not apply without granting party’s motion, supported by affidavit to the effect that the marriage is not irretrievably broken, for a conciliation conference. Putnam v. Fanning, 495 S.W.2d 175, 1973 Ky. LEXIS 391 ( Ky. 1973 ).

2.Findings of Court.

The determination of whether a marriage is irretrievably broken or not is a judicial function based upon the evidence in the case. Laffosse v. Laffosse, 564 S.W.2d 220, 1978 Ky. App. LEXIS 497 (Ky. Ct. App. 1978).

3.— Evidence.

If the trial court clearly erred by finding that the marriage was not irretrievably broken, then under CR 52.01 his findings may be set aside and if the evidence admits of but one conclusion, that is that the marriage is irretrievably broken, dissolution of the marriage must be granted. Laffosse v. Laffosse, 564 S.W.2d 220, 1978 Ky. App. LEXIS 497 (Ky. Ct. App. 1978).

Where both parties testified that the marriage was irretrievably broken and the wife indicated that she wanted a legal separation, rather than dissolution, simply to give her financial security, the trial court’s finding that the marriage was not irretrievably broken was clearly erroneous and would be reversed and remanded with directions to dissolve the marriage. Laffosse v. Laffosse, 564 S.W.2d 220, 1978 Ky. App. LEXIS 497 (Ky. Ct. App. 1978).

On the testimony of one party that a marriage is irretrievably broken, a finding by the trial court to that effect is not clearly erroneous. Goldman v. Eichenholz, 851 S.W.2d 463, 1993 Ky. LEXIS 22 ( Ky. 1993 ), dismissed, 2002 Ky. App. LEXIS 680 (Ky. Ct. App. Mar. 22, 2002).

4.Final Judgment.
5.— Mandamus.

Mandamus is not available to attack a final judgment dissolving a marriage where direct appeal is proscribed by statute. Goldman v. Eichenholz, 851 S.W.2d 463, 1993 Ky. LEXIS 22 ( Ky. 1993 ), dismissed, 2002 Ky. App. LEXIS 680 (Ky. Ct. App. Mar. 22, 2002).

Opinions of Attorney General.

Where the husband has been in prison for two and one-half years without physical access to his wife and where the wife was pregnant on the filing of the divorce petition, the court should continue the action and not terminate it as provided by subsection (7) of KRS 403.150 since the wife anticipated having a baby of a man extrinsic to the subject marital relationship while the husband is in prison goes a long way toward establishing the “irretrievable breakdown” proposition provided for in this section and since KRS 406.011 permits the court to make a determination of whether the evidence shows that the marital relationship between the husband and wife ceased at least 10 months prior to the medically expected birth of the child. OAG 76-465 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Notes, Antenuptial Contracts and Divorce in Kentucky: A Better Approach, 72 Ky. L.J. 867 (1983-84).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Northern Kentucky Law Review.

Kruer and Goetz, Common Sense Is No Longer a Stranger In The House of Kentucky Insurance Law, 21 N. Ky. L. Rev. 377 (1994).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Decree of Dissolution of Marriage, Form 253.30.

Caldwell’s Kentucky Form Book, 5th Ed., Findings of Fact and Conclusions of Law — No Settlement Agreement, Form 253.27.

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Conciliation Conference, Form 253.13.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Dissolution of Marriage, Form 253.06.

Caldwell’s Kentucky Form Book, 5th Ed., Petition For Legal Separation, Form 253.04.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Divorce, § 253.00.

Caldwell’s Kentucky Form Book, 5th Ed., Response, Form 253.12.

Petrilli, Kentucky Family Law, Court Procedure, §§ 23.3, 23.19, 23.24, 23.25, 23.33, 23.35, 23.37.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.6.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, §§ 21.1, 21.4.

Petrilli, Kentucky Family Law, Legal Defenses to Dissolution Action, § 22.1.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.9, Form 2.16, Form 2.17.

403.180. Separation agreement — Court may find unconscionable.

  1. To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for maintenance of either of them, disposition of any property owned by either of them, and custody, support and visitation of their children.
  2. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.
  3. If the court finds the separation agreement unconscionable, it may request the parties to submit a revised separation agreement or may make orders for the disposition of property, support, and maintenance.
  4. If the court finds that the separation agreement is not unconscionable as to support, maintenance, and property:
    1. Unless the separation agreement provides to the contrary, its terms shall be set forth verbatim or incorporated by reference in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or
    2. If the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement and state that the court has found the terms not unconscionable.
  5. Terms of the agreement set forth in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.
  6. Except for terms concerning the support, custody, or visitation of children, the decree may expressly preclude or limit modification of terms if the separation agreement so provides. Otherwise, terms of a separation agreement are automatically modified by modification of the decree.

History. Enact. Acts 1972, ch. 182, § 8.

NOTES TO DECISIONS

1.Purpose.

Under this statute the law has established a measure of protection for parties from their own irresponsible agreements. Shraberg v. Shraberg, 939 S.W.2d 330, 1997 Ky. LEXIS 42 ( Ky. 1997 ).

2.Modification.

Since the provisions for modification of separation agreements would not be valid to the extent of impairing vested contractual rights, a wife’s contractual right to maintenance could not be impaired by court modification where the right to alimony had vested in her as a result of alimony provisions attendant to the property settlement incorporated in a 1968 divorce decree. Scott v. Scott, 529 S.W.2d 656, 1975 Ky. LEXIS 60 ( Ky. 1975 ).

Trial court was clearly erroneous in reducing a husband’s maintenance obligation by the amount of the wife’s Social Security benefits as 53 percent of the wife’s benefits were attributable to her earnings; as the maintenance obligation was established in 1979, the pre-1972 modification rules were applicable, and whether the maintenance obligation was subject to modification depended on application of KRS 403.180 and KRS 403.250 . Wheeler v. Wheeler, 154 S.W.3d 291, 2004 Ky. App. LEXIS 84 (Ky. Ct. App. 2004).

In light of the conflicting testimony of the parties where both parents alleged that they had custody of the minor daughter more than 50% of the time, it would not have been an abuse of discretion for the family court to modify the agreement of the parties and to recalculate child support without reference to the split custody arrangement the parties originally envisioned in the original dissolution decree. Johnson v. Johnson, 232 S.W.3d 571, 2007 Ky. App. LEXIS 303 (Ky. Ct. App. 2007).

Changed circumstances rendering the terms of a maintenance award unconscionable is the only ground upon which a court has authority to modify any maintenance award; however, the clear language of Ky. Rev. Stat. Ann. § 403.250(1) prohibits a court from invoking this limited authority when the parties have a separation agreement pursuant to Ky. Rev. Stat. Ann. § 403.180(6) that expressly precluded subsequent modification of the terms of their separation agreement. Jaburg v. Jaburg, 558 S.W.3d 11, 2018 Ky. App. LEXIS 227 (Ky. Ct. App. 2018).

Family court did not have the authority to modify a husband’s maintenance obligations under a marital settlement agreement because its finding that it could modify the settlement agreement due to changed circumstances despite the presence of non-modification clauses was erroneous. Jaburg v. Jaburg, 558 S.W.3d 11, 2018 Ky. App. LEXIS 227 (Ky. Ct. App. 2018).

Decision to deny the husband’s motion to modify maintenance was not an abuse of discretion; the maintenance amount set in the separation agreement was a bargained-for exchange as the wife, who was disabled, waived her claim to the husband’s retirement accounts, and while he had some unemployment, he failed to show that his circumstances was anything other than temporary, not substantial and continuing, and he voluntarily created his exorbitant monthly expenses. His accumulation of debt was not directly related to his change in jobs. Andrews v. Andrews, 611 S.W.3d 271, 2020 Ky. App. LEXIS 82 (Ky. Ct. App. 2020).

3.Unconscionable.

While the use of the specific word “unconscionable” by the trial court would be preferable, this is not required by subsection (2) of this section. Jackson v. Jackson, 571 S.W.2d 90, 1978 Ky. App. LEXIS 583 (Ky. Ct. App. 1978).

Unconscionability may be defined as “manifestly unfair and inequitable.” Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

Divorce litigation, whether terminated by judgment or agreement, is opened to subsequent modification if the party seeking modification can prove the terms of the judgment or agreement are unconscionable, and although subdivision (4)(b) of this section contains an exception to this principle, the purpose of this section is to expand rather than to limit the parties’ ability to settle. Brown v. Brown, 796 S.W.2d 5, 1990 Ky. LEXIS 87 ( Ky. 1990 ).

Separation agreement was unconscionable under this section where wife, without counsel, waived any right to real property, household items, child support, further notice of proceedings, two pick-up trucks, and wife was responsible for an $800 debt, even though wife received one car and custody of child and husband’s total income during six years amounted to $4,689.70, a figure apparently self-imposed. Burke v. Sexton, 814 S.W.2d 290, 1991 Ky. App. LEXIS 92 (Ky. Ct. App. 1991).

Separation agreement was unconscionable where husband pledged himself to pay over $160,000 per year in total support, while his pre-tax income was $200,000. Shraberg v. Shraberg, 939 S.W.2d 330, 1997 Ky. LEXIS 42 ( Ky. 1997 ).

After deciding that separation agreement was unconscionable, trial court could elect to decide case as though no agreement existed, and not effectuate it to the greatest extent possible. Shraberg v. Shraberg, 939 S.W.2d 330, 1997 Ky. LEXIS 42 ( Ky. 1997 ).

Separation agreement where by husband who had a pre-tax income of about $200,000 annually, obligated himself to pay in excess of $160,000 annually for the support of his children and former wife was unconscionable. Shraberg v. Shraberg, 939 S.W.2d 330, 1997 Ky. LEXIS 42 ( Ky. 1997 ).

Since the final decree of dissolution of marriage incorporated the separation agreement, the agreement was found by the trial court that entered the dissolution decree not to have been unconscionable, such that any modification was impermissible absent a showing of a change in circumstances; accordingly, a Family Court should not have applied principles of equity in interpreting and enforcing the agreement, but rather, the agreement should have been enforced as if it was a contract pursuant to KRS 403.180(2) and (5). Bailey v. Bailey, 231 S.W.3d 793, 2007 Ky. App. LEXIS 281 (Ky. Ct. App. 2007).

4.Reconciliation Agreements.

This section neither addresses itself to nor affects or prohibits reconciliation agreements. Whalen v. Whalen, 581 S.W.2d 578, 1979 Ky. App. LEXIS 407 (Ky. Ct. App. 1979).

5.Settlement Agreement.

A settlement agreement should be annulled after a true reconciliation of the parties. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

Where the husband sought divorce, both parties were of age and had been married 10 years, and the husband had read and signed the separation agreement, the court was not clearly erroneous in approving such an agreement despite the fact that it called for payment of $700 of husband’s $934 net income to the wife, an amount that would have been reversed as an abuse of discretion if ordered by the court. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

Trial court erred in awarding both income tax dependency exemptions to the mother, as the parties, pursuant to the divorce, included a non-modification provision in their property settlement agreement pursuant to KRS 403.180(6); thus, the trial court erred in modifying the settlement by awarding the mother both exemptions. Finck v. Finck, 2005 Ky. App. Unpub. LEXIS 908 (Ky. Ct. App. May 27, 2005).

Although the couple drafted a document memorializing their property agreement during a prior separation, since neither party signed the document, the document could not serve as a valid, enforceable property settlement agreement creating two (2) non-marital estates. Heskett v. Heskett, 245 S.W.3d 222, 2008 Ky. App. LEXIS 3 (Ky. Ct. App. 2008).

Under KRS 403.180(2), the parties entered into a valid separation agreement; the wife did not appeal from either the final decree or the Qualified Domestic Relations Order, and was not permitted to do so via a motion to modify. Willis v. Willis, 362 S.W.3d 372, 2012 Ky. App. LEXIS 47 (Ky. Ct. App. 2012).

Former wife did not waive beneficiary rights to her former husband’s individual retirement account (IRA) in a property settlement agreement because it remained silent as to the beneficial interest of the IRA; the property settlement was regarded as an enforceable contract. Moreover, the language contained in the agreement did not refer to the beneficiary designation on the IRA, and the husband, as the owner of the IRA, had the authority to designate the beneficiary. Sadler v. Van Buskirk, 2013 Ky. App. LEXIS 159 (Ky. Ct. App. Nov. 22, 2013).

Husband and wife can enter into a valid postnuptial contract wherein each relinquishes his or her respective interest in the property of the other, if such an agreement is fair and equitable, and supported by an adequate consideration; contracts disposing of property, which are executed in contemplation of dissolution of marriage, do not constitute an exception to this general rule, and the enactment of the statute fortifies this decision. Davis v. Davis, 489 S.W.3d 225, 2016 Ky. LEXIS 9 ( Ky. 2016 ).

6.—Enforcement.

Where the settlement agreement in a marital dissolution action provided that the wife would assume the mortgage and the credit card debt, the husband agreed to assume all other debt; both parties were represented by counsel. The trial court acted within its jurisdiction in granting the wife’s post-judgment motion to transfer a margin loan account to the husband’s name in accordance with the terms of the agreement; the wife failed to allege a change of circumstances that rendered the agreement unconscionable under KRS 403.180(4). Money v. Money, 297 S.W.3d 69, 2009 Ky. App. LEXIS 196 (Ky. Ct. App. 2009).

Decedent's ex-spouse, despite being the designated beneficiary of the decedent's Individual Retirement Account (IRA), had no interest in the IRA because the provisions of the property settlement agreement between the decedent and the ex-spouse clearly and unambiguously assigned the full and exclusive ownership interest of the IRA to the decedent and correspondingly prohibited the ex-spouse from asserting any interest in the IRA that was owned by the decedent. Sadler v. Van Buskirk, 478 S.W.3d 379, 2015 Ky. LEXIS 2009 ( Ky. 2015 ).

Requirements of one section were not satisfied, and thus the agreement could not be enforced as a judgment by the family court. Davis v. Davis, 489 S.W.3d 225, 2016 Ky. LEXIS 9 ( Ky. 2016 ).

Statute does not automatically void settlement agreements which are improperly referenced or are not incorporated into the final decree of dissolution, nor does such a failure to comply with the statute render a prior or contemporaneous property settlement agreement unenforceable; the statute does not automatically foreclose post-decree dispositions or independent enforcement of property agreements not incorporated or referenced in the decree. Davis v. Davis, 489 S.W.3d 225, 2016 Ky. LEXIS 9 ( Ky. 2016 ).

Settlement agreement involving property division that was not incorporated or referenced in the final decree of dissolution may be enforced through an independent contract action, but this holding does not apply to agreements executed prior to or contemporaneously with an agreement that has been duly incorporated or referenced in a dissolution decree, nor does the holding apply to settlement agreements that are made in anticipation of dissolution of marriage but where the divorce is never consummated; the divorce was finalized by the dissolution decree and the agreement was not incorporated, and the ex-wife could bring her contract claim. Davis v. Davis, 489 S.W.3d 225, 2016 Ky. LEXIS 9 ( Ky. 2016 ).

Circuit court did not err in denying a wife's motion to compel the sale of the marital home where it properly interpreted the couple's settlement agreement to require the husband to list the property if he was unable to refinance, that requirement was not tied to the husband's ability to refinance in 90 days, the husband had eventually refinanced and paid the wife in full once an unknown lien was satisfied, and the wife had accepted the payment. Miranda v. Miranda, 536 S.W.3d 196, 2017 Ky. App. LEXIS 552 (Ky. Ct. App. 2017).

7.— Survival.

Where a husband and wife were married nine years, separated, were reconciled, separated again in March, 1978, executed a settlement agreement April 7, 1978, and where the husband and wife then resumed cohabitation from August 21, 1978, to September 14, 1978, the trial court’s decision that the agreement survived cannot be said to be clearly erroneous, whether this case is viewed as one in which only one party intended to reconcile or one where the parties intended reconciliation not to annul their agreement. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

8.— Burden of Proof.

Given the nature of the no-fault divorce statute, coupled with the desirability of imparting some degree of finality to settlement agreements, a party challenging an agreement as unconscionable should have a relatively high burden of proof, and since the trial court is in the best position to judge the circumstances surrounding a separation agreement, its finding on the issue of conscionability should not be set aside on appeal unless there is some evidence of fraud, undue influence, overreaching, or evidence of a change of circumstances since the execution of the original agreement. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

The party challenging a separation agreement as unconscionable has the burden of proof. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

Separation agreement that granted a wife one-half of the husband’s non-marital property was enforceable under KRS 403.180(2) because it was not unconscionable. The burden of proof in challenging the agreement was on the husband because it was prepared by his attorney and the wife signed it without benefit of counsel, and he failed to demonstrate that it was the result of fraud, undue influence, or overreaching. Cameron v. Cameron, 265 S.W.3d 797, 2008 Ky. LEXIS 206 ( Ky. 2008 ).

9.— Setting Aside.

A separation agreement could be set aside on the basis of fraud, undue influence, or overreaching, but could not be held unconscionable solely on the basis that it is a bad bargain. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

An oral promise made by wife was not sufficient to defeat her right to share in the marital assets since any oral promise made before the marriage would not be enforceable for failure to comply with the statute of frauds while any settlement agreement after the marriage attempting to dispose of the marital property must be, according to this section, in writing and signed by the parties to be effective. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

Where the terms of a separation agreement executed by a husband and wife in anticipation of the dissolution of their marriage were not unconscionable, and the decree of dissolution incorporated the contract which contained a clause making the maintenance provision nonreviewable and final, the agreement did not become inequitable and would not be set aside merely because the wife entered into an unmarried cohabitation with another man particularly since the evidence indicated that their relationship was more like a roommate situation with each individual paying his or her own way. Lydic v. Lydic, 664 S.W.2d 941, 1983 Ky. App. LEXIS 347 (Ky. Ct. App. 1983).

Family court committed reversible error in adopting a mediated agreement into the decree dissolving the parties’ marriage because the wife’s attorney improperly left the wife during the mediation and the mediator impermissibly interfered in the negotiating process by continuing the mediation without the wife’s counsel being present and by dispensing of legal advice to the wife regarding the value of a tax exemption. Baas v. Baas, 2018 Ky. App. LEXIS 119 (Ky. Ct. App. Apr. 13, 2018), op. withdrawn, 2018 Ky. App. LEXIS 301 (Ky. Ct. App. Apr. 17, 2018), sub. op., 2018 Ky. App. LEXIS 275 (Ky. Ct. App. Nov. 30, 2018).

10.— Written.

The language of this section does not undertake to describe a permissible or acceptable form for written agreements; therefore, an oral agreement which is dictated to a court reporter at a scheduled deposition, subsequently transcribed, and then in its transcribed form made a part of the clerk’s record, satisfies the requirement of this section that property settlement agreements be “written.” Calloway v. Calloway, 707 S.W.2d 789, 1986 Ky. App. LEXIS 1109 (Ky. Ct. App. 1986).

The statute requires separation agreements to be in writing and signed by the parties and, therefore, an oral separation agreement is not valid. Bratcher v. Bratcher, 26 S.W.3d 797, 2000 Ky. App. LEXIS 88 (Ky. Ct. App. 2000).

11.— Breach.

The husband’s failure to comply with the first divorce decree was treated as a breach of a contract entitling the wife to the appropriate compensatory damages; therefore, the wife was entitled to the fair market value of the car owed her under the first divorce decree as of the date it was repossessed. Gray v. Gray, 745 S.W.2d 657, 1988 Ky. App. LEXIS 9 (Ky. Ct. App. 1988).

12.Economic Circumstances.
13.— Proof.

In an uncontested divorce, although the trial court could request proof of economic circumstances, this section does not require it to do so. Peterson v. Peterson, 583 S.W.2d 707, 1979 Ky. App. LEXIS 437 (Ky. Ct. App. 1979).

14.Equitable Defenses Unavailable.

Since matters of maintenance and child support have the same effect as a money judgment for which KRS 413.090(1) has established a 15-year period in which an action on such judgment shall be brought, equitable defenses of laches or estoppel by acquiescence are not available to bar collection of maintenance and child support arrearages. Heisley v. Heisley, 676 S.W.2d 477, 1984 Ky. App. LEXIS 587 (Ky. Ct. App. 1984).

15.Disposition of Property.

With regard to the disposition of property, market value, investment and earning value, and net asset value are all legitimate considerations in the general case when evaluating a corporation or its stock, and the weight to be accorded each element depends on the circumstances of the individual case. Rupley v. Rupley, 776 S.W.2d 849, 1989 Ky. App. LEXIS 101 (Ky. Ct. App. 1989).

16.— Apportionment of Real Property.

The formula utilized in Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981), provides a useful, though not exclusive, tool in the pursuit of a just and equitable solution with regard to apportionment and the disposition of real property. Rupley v. Rupley, 776 S.W.2d 849, 1989 Ky. App. LEXIS 101 (Ky. Ct. App. 1989).

Recusal must be the rule in those situations where the judge’s knowledge about a case is obtained from a source other than the case record and may bear on the decision. Woods v. Commonwealth, 793 S.W.2d 809, 1990 Ky. LEXIS 67 ( Ky. 1990 ).

17.Expressed Finality.

Under this section — except for terms concerning the support, custody, or visitation of children — by expressly doing so, the parties may settle their affairs with a finality beyond the reach of the court’s continuing equitable jurisdiction elsewhere provided; where an agreement made no such express provision for finality, there was no such limitation on subsequent modification. Brown v. Brown, 796 S.W.2d 5, 1990 Ky. LEXIS 87 ( Ky. 1990 ).

18.Waiver of Statutory Requirement for Modification.

Parties to a separation agreement may waive a statutory requirement that the party moving for an increase in child support prove a material change in circumstances if it does not impair the rights of others, is not contrary to the public interest, and is expressly and voluntarily made. Giacalone v. Giacalone, 876 S.W.2d 616, 1994 Ky. App. LEXIS 17 (Ky. Ct. App. 1994).

19.Disregard of Former Agreement.

While the parties to a divorce are free to enter into a separation agreement to promote the settlement of the divorce, the court still retains control over child custody, support and visitation and is not bound by the parties’ agreement in these areas. Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

20.Agreements Valid.

Contracts are valid between husband and wife, if made in contemplation of the continuance of a previous separation, or in contemplation of an immediate separation, where disagreements have taken place between the parties. Hendricks v. Hendricks, 4 Ky. L. Rptr. 724 (1883) (decided under prior law).

Separation agreements are upheld when untainted by fraud, undue influence or duress if the terms are fair, reasonable and equitable, considering the circumstances of the parties at the time they were made. Pegram v. Pegram, 310 Ky. 86 , 219 S.W.2d 772, 1949 Ky. LEXIS 836 ( Ky. 1949 ) (decided under prior law).

An agreement pursuant to a suit for divorce is not void unless there is some element of fraud or bad conduct present. Arnold v. Arnold's Ex'x, 314 Ky. 734 , 237 S.W.2d 58, 1951 Ky. LEXIS 744 ( Ky. 1951 ) (decided under prior law).

Where a married couple has already separated, an alimony or property settlement, if fair on its face, will be upheld in a subsequent divorce action. Gardner v. Gardner, 280 S.W.2d 198, 1955 Ky. LEXIS 146 ( Ky. 1955 ) (decided under prior law).

There is no legal prohibition against a husband and wife entering into a contract fixing their property rights in contemplation of an immediate separation. Gordon v. Gordon, 335 S.W.2d 561, 1960 Ky. LEXIS 269 ( Ky. 1960 ) (decided under prior law).

Family court did not abuse its discretion when it refused to set aside a separation agreement on the grounds of duress, fraud, and undue influence because the court concluded that the former husband, who actively negotiated the agreement, entered into the separation agreement of the husband's own free will and under no duress or threat of harm by the former wife. The amount of child support was not unconscionable because, while in excess of the guidelines, it was not shocking to the conscious or outside the husband's reasonable fiscal means. Mays v. Mays, 541 S.W.3d 516, 2018 Ky. App. LEXIS 87 (Ky. Ct. App. 2018).

21.Effect of Reconciliation.

Subsequent reconciliation and cohabitation put an end to deeds of separation insofar as they provided for living apart and to provisions of an executory nature. Hendricks v. Hendricks, 4 Ky. L. Rptr. 724 (1883) (decided under prior law).

Where intention of parties is to permanently settle their respective property rights, such agreement is binding even though parties are reconciled and, in subsequent divorce proceedings, court will not restore property so transferred. Hartley v. Hartley, 305 Ky. 350 , 203 S.W.2d 770, 1947 Ky. LEXIS 807 ( Ky. 1947 ) (decided under prior law).

Where the parties entered a separation agreement by which the husband agreed to pay back a loan from the wife, the wife was to receive all of the household furnishings, which she purchased with her own funds, and she agreed not to claim alimony and the parties subsequently resumed cohabitation for nearly a year, the effect of the cohabitation was to annul the provisions of the agreement for the consideration failed. Gardner v. Gardner, 280 S.W.2d 198, 1955 Ky. LEXIS 146 ( Ky. 1955 ) (decided under prior law).

Reconciliation and resumption of cohabitation will usually invalidate an agreed property settlement of the parties made in contemplation of separation, unless the terms of the agreement have been fully executed in which case the court will look to the intent of the parties to determine the effect of the agreement. Gordon v. Gordon, 335 S.W.2d 561, 1960 Ky. LEXIS 269 ( Ky. 1960 ) (decided under prior law).

22.Incorporation in Decree.

A voluntary property settlement of the parties should be incorporated in the divorce decree where there is no overreaching or unfairness in connection with it. Brumley v. Brumley, 247 S.W.2d 987, 1952 Ky. LEXIS 729 ( Ky. 1952 ) (decided under prior law).

23.Property Not Included.

Where a property settlement in contemplation of divorce provides that it is a complete settlement of the property rights between the parties, the rule of ejusdem generis is not applicable to exclude certain property not mentioned in the agreement from coverage by the agreement. Reese v. Greenlee, 308 Ky. 275 , 214 S.W.2d 262, 1948 Ky. LEXIS 909 ( Ky. 1948 ) (decided under prior law).

Where property settlement agreement, made in contemplation of divorce, set out in great detail disposition of various properties, provided that husband would not be required to pay alimony, attorney’s fees, court costs or other expenses, and stated that it represented a complete property settlement, the husband, following granting of divorce, was denied recovery of sum of money and jewelry, which was not mentioned in settlement agreement but which husband contended was obtained by wife by reason of and in consideration of the marriage. Reese v. Greenlee, 308 Ky. 275 , 214 S.W.2d 262, 1948 Ky. LEXIS 909 ( Ky. 1948 ) (decided under prior law).

Cited:

Jackson v. Jackson, 734 S.W.2d 498, 1987 Ky. App. LEXIS 5 29 (Ky. Ct. App. 1987); Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ); Edwardson v. Edwardson, 798 S.W.2d 941, 1990 Ky. LEXIS 124 ( Ky. 1990 ); John v. John, 893 S.W.2d 373, 1995 Ky. App. LEXIS 5 (Ky. Ct. App. 1995); Hoskins v. Hoskins, 15 S.W.3d 733, 2000 Ky. App. LEXIS 28 (Ky. Ct. App. 2000); R.D.P. v. S.M.B., — S.W.3d —, 2003 Ky. App. LEXIS 249 (Ky. Ct. App. 2003).

NOTES TO UNPUBLISHED DECISION

Written.

Unpublished Decision Nowhere did Ky. Rev. Stat. Ann. § 403.180 require the agreement to contain a specific caption or form, only that it be in writing; Ky. Rev. Stat. Ann. §§ 403.180 , 403.110 supported the conclusion the mediated agreement qualified as a separation agreement, and incorporation of the agreement into the dissolution decree was not improper. Baas v. Baas, 2018 Ky. App. LEXIS 275 (Ky. Ct. App. Nov. 30, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 977 (Ky. Ct. App. Nov. 30, 2018).

Research References and Practice Aids

Kentucky Bench & Bar.

Bagby, Estate Planning and Antenuptial Agreements, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 12.

Gilbert and Wise, Apportioning Military Pensions Under The Uniformed Services Former Spouses Protection Act and Kentucky Law, Volume 55, No. 1, Winter 1991 Ky. Bench & B. 26.

Kentucky Law Journal.

Kentucky Law Survey, Wilson, Domestic Relations, 65 Ky. L.J. 383 (1976-77).

Comments, Paternal Custody of the Young Child Under the Kentucky No-Fault Divorce Act, 66 Ky. L.J. 165 (1977-78).

Comments, Child Support, Life Insurance, and the Uniform Marriage and Divorce Act, 67 Ky. L.J. 239 (1978-79).

Kentucky Law Survey, Harris and Donoho, Domestic Relations, 68 Ky. L.J. 753 (1979-1980).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Northern Kentucky Law Forum.

Sheldon, From Commandments to Consent: Ohio in the Divorce Reform Era, 2 N. Ky. St. L.F. 119 (1974-75).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Property Settlement Agreement, Form 253.16.

Petrilli, Kentucky Family Law, Court Procedure, § 23.18.

Petrilli, Kentucky Family Law, Custody of Children, § 26.7.

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.23, 24.25; 1991 Supp., § 24.24.

Petrilli, Kentucky Family Law, Foreign Decrees (Conflict of Laws), § 28.1.

Petrilli, Kentucky Family Law, Maintenance, §§ 25.17, 25.18, 25.19, 25.25, 25.27, 25.28.

Petrilli, Kentucky Family Law, Separation Agreements, §§ 19.1, 19.4, 19.19, 19.22, 19.23.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.5.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.22.

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.

History. Enact. Acts 1972, ch. 182, § 9; 1986, ch. 441, § 1, effective July 15, 1986; 1996, ch. 328, §§ 1, 2, effective July 15, 1996.

Compiler’s Notes.

The major portion of the Employees Retirement Income Security Act of 1974, referred to in this section, is codified throughout Titles 26 and 29 of the United States Code.

Section 401(a) of the Internal Revenue Code of 1954, referred to in this section, is codified as 26 USCS § 401(a).

Legislative Research Commission Note.

(7/15/96). This section was amended by 1996 Ky. Acts ch. 328, secs. 1 and 2 which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.In General.

The fourteenth amendment of the United States constitution does not require that the state, in adjudicating the division of property in divorce cases, ignore its own laws and look to the laws of each state in which rights to the property originated to determine the effect of the divorce upon those rights. Travelers Ins. Co. v. Fields1, 451 F.2d 1292, 1971 U.S. App. LEXIS 6642, 58 Ohio Op. 2d 18(6th Cir. 1971), cert. denied, 406 U.S. 919, 92 S. Ct. 1772, 32 L. Ed. 2d 118, 1972 U.S. LEXIS 2647 (1972), cert. denied, Fields v. Travelers Ins. Co., 406 U.S. 919, 92 S. Ct. 1772, 32 L. Ed. 2d 118, 1972 U.S. LEXIS 2647 (1972) (decided under prior law).

2.Jurisdiction.

Where the court had no jurisdiction of the wife, it could not dispose of chattels not within its jurisdiction or order the wife to return personalty, but it could distribute chattels located within the state. Gaines v. Gaines, 566 S.W.2d 814, 1978 Ky. App. LEXIS 538 (Ky. Ct. App. 1978).

Antenuptial endorsement was within the bankruptcy court’s jurisdiction under 11 U.S.C.S. § 541(a)(1) because the wife brought a declaratory action, which was a “core proceeding” under 28 U.S.C.S. § 157(b)(2), to invalidate the agreement; § 541(a)(5) did not divest the bankruptcy court of jurisdiction; and the wife’s rights to marital property vested at the time the husband filed for divorce under KRS 403.190(1). Brown v. Brown, 2013 U.S. Dist. LEXIS 74323 (E.D. Ky. May 28, 2013).

3.Assignment of Property.

When the trial court assigns “each spouse’s property” record title should not be controlling, and, therefore, a tract of land conveyed by gift from the wife’s brother should be considered as the wife’s nonmarital property unless the trial court finds that husband was named as a grantee for a reason other than his marriage to the wife. Angel v. Angel, 562 S.W.2d 661, 1978 Ky. App. LEXIS 473 (Ky. Ct. App. 1978).

In apportioning marital and nonmarital property, there is established a relationship between the nonmarital contribution and the total contribution, and between the marital contribution and the total contribution, and these relationships, reduced to percentages, shall be multiplied by the equity in the property at the time of distribution to establish the value of the nonmarital and marital properties. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

This section does not dictate that marital property be divided equally and the trial court’s findings with respect to the division of marital property will not be disturbed unless shown to be clearly erroneous. Accordingly, a judgment awarding $32,000 house to wife and two $10,000 certificates of deposit to husband would be upheld. Quiggins v. Quiggins, 637 S.W.2d 666, 1982 Ky. App. LEXIS 236 (Ky. Ct. App. 1982).

This section does not require that the division be equal. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

Since the trial court’s determination to split the carry-forward equally was supported by expert opinion based on the husband and wife’s joint tax return, it was not an abuse of discretion. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

4.Property Acquired by Gift or Devise.

The property each owned at the time of marriage and property acquired by inheritance or by gifts from nonrelated third parties during the marriage are to be regarded as the sole property of the spouse who so inherited or received them. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ) (decided under prior law).

Where plaintiff demanded the house and lot where she and her children were living and which had been acquired by her and her husband, as the lot was given to plaintiff by her father and mother, this was correctly restored to her. Straney v. Straney, 481 S.W.2d 292, 1972 Ky. LEXIS 248 ( Ky. 1972 ) (decided under prior law).

Where property received by a husband from the estate of his father was subject to various liabilities for funeral expenses, administrative expenses and debts and taxes owed by the estate of his father, these liabilities were a charge against the nonmarital property received by the husband from his father’s estate, and the value of those assets should have been reduced accordingly. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

The court erred in its disposition of property by not awarding wife an interest proportionate to the amount she invested in the residence and other marital property and family expenses, which amount was either given by or inherited from her parents. Farmer v. Farmer, 506 S.W.2d 109, 1974 Ky. LEXIS 744 ( Ky. 1974 ).

This statute mandates the trial judge to assign each spouse’s property to him and does not leave open for subsequent inquiry the rights of either or both that have not been adjudicated upon the final determination of the controversy. Ping v. Denton, 562 S.W.2d 314, 1978 Ky. LEXIS 326 ( Ky. 1978 ).

A tract of land received by a wife in the partition of her father’s farm clearly constituted nonmarital property; if the purchase price for any of the other tracts could be traced to an inheritance by either party, then such tracts would constitute nonmarital property, but if the purchase price for a tract could not be traced to an inheritance by either party, that tract would constitute marital property. Angel v. Angel, 562 S.W.2d 661, 1978 Ky. App. LEXIS 473 (Ky. Ct. App. 1978).

Where a son contributed no capital to a corporation which was run by his father, received shares of stock for which he made no payment, and received a salary from the corporation, such stock was a gift and was not marital property. Adams v. Adams, 565 S.W.2d 169, 1978 Ky. App. LEXIS 509 (Ky. Ct. App. 1978).

Where a husband acquired a life estate in two farms by deeds of gift from his father, he was devised a life estate in two other farms under the will of his father, and he also was the owner of a residence which was a gift from his mother and father, the trial court correctly held that this real estate constituted nonmarital property to the extent that its value was not enhanced during the marriage by joint efforts of the parties. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

In determining whether property was a gift, consideration should be given to the source of the money with which the “gift” was purchased, the intent of the donor at that time as to intended use of the property, status of the marriage relationship at the time of the transfer, and whether there was any valid agreement that the transferred property was to be excluded from the marital property. O'Neill v. O'Neill, 600 S.W.2d 493, 1980 Ky. App. LEXIS 332 (Ky. Ct. App. 1980).

Where Veterans Administration granted $17,000 to former career serviceman to defray the expense of special design and features needed for handicapped, the funds were a gift within the meaning of subsection (2) of this section since the grant was a discretionary gift by the Veterans Administration to handicapped ex-servicemen and not an entitlement to the ex-serviceman; thus the funds should be restored to the ex-serviceman as nonmarital property in a dissolution of marriage proceeding. McGlone v. McGlone, 613 S.W.2d 419, 1981 Ky. LEXIS 226 ( Ky. 1981 ).

Gifts during marriage from third parties to both spouses shall be treated as marital property upon dissolution. This is a natural outgrowth of this section, and is consistent with both the Uniform Marriage & Divorce Act and the limited number of decisions in other jurisdictions which have addressed the issue. Calloway v. Calloway, 832 S.W.2d 890, 1992 Ky. App. LEXIS 140 (Ky. Ct. App. 1992).

Whether property is considered a gift for purposes of a divorce proceeding is a factual issue subject to the clearly erroneous standard of review. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Where the wife’s father made a $57,000 loan to both the husband and the wife in order for them to purchase a house, and the loan was forgiven during the marriage, the trial court erred in treating the loan as a nonmarital gift to the wife. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

Trial court’s finding that a father-in-law’s $20,000 check to the wife was a gift and thus non-marital property was not clearly erroneous. Kleet v. Kleet, 264 S.W.3d 610, 2007 Ky. App. LEXIS 243 (Ky. Ct. App. 2007).

Circuit court’s finding that monetary gifts from a husband’s parents were marital property under KRS 403.190(2) and not a gift to the husband alone under § 403.190(2)(a) was not clearly erroneous where the money was given jointly to the parties during the marriage into a joint checking account for jointly titled marital homes, even though the father testified that the gifts were for their son alone. Gertler v. Gertler, 303 S.W.3d 131, 2010 Ky. App. LEXIS 6 (Ky. Ct. App. 2010).

Distributions to a husband under trusts created by his great-grandfather were exempt from characterization as marital property under KRS 403.190(2)(a); the husband’s expenditure of marital funds for litigation involving the trusts did not change the source of the distributions from the trusts. Maclean v. Middleton, 419 S.W.3d 755, 2014 Ky. App. LEXIS 3 (Ky. Ct. App. 2014).

5.— Burden of Proof.

Property acquired by either spouse subsequent to the marriage is presumed to be marital property, except for certain enumerated types including property acquired by gift (see KRS 403.190(2)); the party claiming property acquired after the marriage as his/her nonmarital property through the gift exception bears the burden of proof on that issue. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Since the wife simply showed a temporal proximity between her father’s gift and a down payment made on a residence, but nothing more concrete linking the gift to the down payment, the wife did not meet her burden to show she had a nonmarital interest in the residence. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

6.— Evidence.

The question of whether property is considered marital or nonmarital is dependent on whether the property was a gift or was received as a result of consideration and to overcome the presumption that the property is marital, clear and convincing proof must be presented to show that the property was given as a gift. Adams v. Adams, 565 S.W.2d 169, 1978 Ky. App. LEXIS 509 (Ky. Ct. App. 1978).

With respect to evidence to rebut the marital property presumption when a party asserts a nonmarital interest in property by gift, the preponderance of the evidence standard is the proper standard of proof necessary to rebut the presumption. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Trial court correctly found that only 14.2 percent of an account was marital property where there was substantial evidence that the wife’s father had intended to use a check to purchase stock for the wife; thus the stock was a gift to the wife and was nonmarital property. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

7.Marital Property.

In a situation in which property has been accumulated in the course and by virtue of the joint efforts of husband and wife as a marital unit, one carrying out his responsibilities and the other carrying out hers, each of them has a vested “ownership” interest and, upon dissolution of the marriage, the trial court should be free to weigh it up and determine when, whether and how it is to be cut off and separated out. Cooke v. Cooke, 449 S.W.2d 216, 1969 Ky. LEXIS 31 ( Ky. 1969 ) (decided under prior law).

The distribution or division of property acquired during marriage by the team effort of the marital partners is, strictly speaking, not alimony. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ) (decided under prior law).

Where property is acquired during marriage by the joint efforts of the parties, it should be divided between the spouses according to what is just and reasonable. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ) (decided under prior law).

Property acquired by a married person after an “actual” vis-a-vis “legal” separation is marital property. Stallings v. Stallings, 606 S.W.2d 163, 1980 Ky. LEXIS 255 ( Ky. 1980 ).

The concept of “team or joint efforts” is not germane to the determination of whether property is marital or not; at most it may convert the increase in value of nonmarital property into marital property. Stallings v. Stallings, 606 S.W.2d 163, 1980 Ky. LEXIS 255 ( Ky. 1980 ).

Where much of the property involved was acquired before the marriage but while the parties were living together, the trial court should have determined whether there was property in which the wife had a legally recognizable and enforceable interest at the time of marriage, assigned that interest to her, and then divided the marital property or if there had been an increase in the value of the property after the marriage due to team effort, she was entitled to share that increase. Smith v. Smith, 497 S.W.2d 418, 1973 Ky. LEXIS 323 ( Ky. 1973 ).

That portion of the proceeds from the sale of a farm attributable to the investment of the husband’s $1,400 inheritance constituted nonmarital property while that portion of the proceeds from the sale attributable to the improvements and the payment of the balance of the purchase price for the land which was made as a “team effort,” constituted marital property. Angel v. Angel, 562 S.W.2d 661, 1978 Ky. App. LEXIS 473 (Ky. Ct. App. 1978).

When the nonmarital property of one spouse is expended as a part of the “team effort” for the benefit of the marriage, that amount should be considered by the trial court in measuring the contribution of each spouse to the acquisition of the marital property. Angel v. Angel, 562 S.W.2d 661, 1978 Ky. App. LEXIS 473 (Ky. Ct. App. 1978).

Where husband failed to show that any property owned by the parties at the time of the separation was acquired by use of his inheritance or from the proceeds from the sale of the automobile and furniture owned by him prior to the marriage, it was error for the trial court to award him the value of such items and likewise, the court erred in awarding the wife the sum of $500 which she owned at the time of the marriage and which she could not trace into specific assets owned by the parties at the date of separation. Turley v. Turley, 562 S.W.2d 665, 1978 Ky. App. LEXIS 474 (Ky. Ct. App. 1978).

Any accumulation of income from a husband’s nonmarital property constituted marital property to be divided by the court. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

Where a husband had received, as a gift from his father, farm machinery having a value of $10,165.26, but where the husband did not trace each individual item of farm machinery into farm machinery which he owned at the date of separation, the trial court erred in assigning any portion of the farm machinery to the husband as nonmarital property. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

Where a wife failed to trace the assets which she brought into the marriage into assets owned at the time of the separation, the trial court did not err in refusing to assign any amount to the wife as nonmarital property. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

Property acquired after actual separation but prior to a decree of legal separation is marital property within subsection (3) of this section. Culver v. Culver, 572 S.W.2d 617, 1978 Ky. App. LEXIS 603 (Ky. Ct. App. 1978).

Where the husband had made certain improvements upon the wife’s farm, though in other respects he had allowed it to run down, nevertheless it was undisputed that the farm was more valuable than it would have been without them; therefore some value must be allocated to them as marital property upon divorce; nor could the benefits be received from living on the farm be used as an offset. Allen v. Allen, 584 S.W.2d 599, 1979 Ky. App. LEXIS 431 (Ky. Ct. App. 1979).

Although a professional license is not marital property, the value of the husband’s law practice is to be considered as marital property. Owens v. Owens, 672 S.W.2d 67, 1984 Ky. App. LEXIS 517 (Ky. Ct. App. 1984).

Kentucky law provides that a spouse’s vested interest in a pension or retirement fund is marital property; vested does not refer to whether the fund is in “pay status,” but whether the owning party has a current right to the proceeds of the plan. Owens v. Owens, 672 S.W.2d 67, 1984 Ky. App. LEXIS 517 (Ky. Ct. App. 1984).

Existing assets comprising the husband’s accounting practice — the cash in hand, the accounts receivable, and the depreciated equipment — constituted marital property; moreover the goodwill contained in the business was a factor to be considered in arriving at the value of the practice for the purpose of disposition of marital property. Heller v. Heller, 672 S.W.2d 945, 1984 Ky. App. LEXIS 542 (Ky. Ct. App. 1984).

Any dividend income derived from shares owned or controlled by the husband or wife prior to dissolution was presumably marital property pursuant to subsection (3) of this section, since such income would not fall under the exceptions set out in subsection (2) of this section. Lampton v. Lampton, 721 S.W.2d 736, 1986 Ky. App. LEXIS 1496 (Ky. Ct. App. 1986).

Property is presumed to be marital; the presumption is countered by five exceptions, none of which applied to a husband’s award under a Jones Act claim for disabling injuries suffered on board a tug boat in the course of employment, thus the award was marital property. Reeves v. Reeves, 753 S.W.2d 301, 1988 Ky. App. LEXIS 63 (Ky. Ct. App. 1988).

The fact that husband’s garage business was started before marriage does not render the entire growth of the business over the course of the parties’ 18-year marriage nonmarital; the business was the principal source of the marital funds and accordingly, the wife could contribute to the marital assets in her role as a homemaker. Consequently, the increase in value of the business during the marriage was marital property. Goderwis v. Goderwis, 780 S.W.2d 39, 1989 Ky. LEXIS 98 ( Ky. 1989 ).

In a divorce action, income produced by husband’s business and assets purchased with that income were properly ruled to be marital property where the husband owned a one-half (1/2) interest in the business before marriage and purchased the other half immediately after marriage and the business was the principal employment of the husband. Marcum v. Marcum, 779 S.W.2d 209, 1989 Ky. LEXIS 96 ( Ky. 1989 ).

Trial court was not clearly erroneous in holding that $129,298 paid to him as income by corporation which he owned and managed in an entrepreneurial fashion and which was his principal means of income for his management responsibilities was marital property, even though this sum was derived from a judgment in the corporation’s favor; fact that the value of the corporation decreased during the marriage was not controlling. Walters v. Walters, 782 S.W.2d 607, 1989 Ky. LEXIS 95 ( Ky. 1989 ).

Definition of “disability allowances” in KRS 403.190(4) is limited by its own terms solely to subsection (4) and has no application to KRS 403.190(2); the more reasonable interpretation is that the general assembly, being mindful that “disability allowances” are properly classified as nonmarital property under KRS 403.190(2) and therefore exempt from division as marital property, provided the same protection to a spouse whose spouse was receiving disability benefits. Holman v. Holman, 84 S.W.3d 903, 2002 Ky. LEXIS 132 ( Ky. 2002 ).

Better approach is to classify disability benefits, upon dissolution of marriage, according to the nature of the wages they replace rather than whether or not they are one of the statutorily excepted categories to marital property or whether the source of the funds used to acquire the benefits was marital. Holman v. Holman, 84 S.W.3d 903, 2002 Ky. LEXIS 132 ( Ky. 2002 ).

Firefighter’s disability retirement benefits replaced the post-dissolution income he would have received, but for his disability, and were, therefore, properly classified as his separate property. Holman v. Holman, 84 S.W.3d 903, 2002 Ky. LEXIS 132 ( Ky. 2002 ).

Where a husband filed for workers’ compensation benefits after he and his wife separated and a workers’ compensation settlement agreement was approved after the wife petitioned for dissolution of marriage, the trial court did not err in finding that the husband’s entire workers’ compensation settlement was marital property because workers’ compensation benefits in either the form of a lump sum settlement or ongoing benefits are marital property. Although workers’ compensation payments that accrued and were received after dissolution were not marital property, the husband received his entire workers’ compensation award prior to dissolution. Day v. Day, 302 S.W.3d 86, 2009 Ky. App. LEXIS 248 (Ky. Ct. App. 2009).

Trial court did not err in finding that the husband’s relocation incentive was marital property because it was received during the parties’ marriage, the benefit was more than an expectancy, and it was unlikely that the husband would have to return the incentive. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

Husband earned the right to receive the relocation incentive during the marriage and the trial court did not err in finding the incentive was marital property; the benefits were more than a mere expectancy, as the husband received all of the funds due to him under the incentive during the marriage and the possibility that a triggering event would occur requiring him to pay back a portion of those funds was slim. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

Restricted stock units (RSUs) were a form of deferred compensation representing payment for services over the three-year vesting period, and the marital portion of each RSU allotment was the proportion of time in each three-year vesting period that was marital because they were generally awarded in February of a given year, vesting three years later; their value was reported as ordinary income on the ex-husband’s W-2 in the year of vesting and appropriately taxed at that time; and the grants were a means of hiring and retention for the employer. Normandin v. Normandin, 634 S.W.3d 589, 2020 Ky. LEXIS 456 ( Ky. 2020 ).

8.— No Specific Division.

Where a marriage decree merely dissolved the marriage and made no provision for property division, such judgment had the same effect as if it had specifically said that the spouses each owned an undivided one-half (1/2) interest in two (2) tracts of land bought during the marriage. Kidwell v. Mason, 564 S.W.2d 534, 1978 Ky. LEXIS 378 ( Ky. 1978 ).

Upon the parties’ divorce, the trial court did not err in deciding that the equity in the marital home would be divided evenly between the parties. The court was convinced that the fair market value of the property on the date of dissolution was $74,000; the court valued the equity at $27,000 and ordered the husband to pay the sum of $13,500 to the wife. Chappell v. Chappell, 312 S.W.3d 364, 2010 Ky. App. LEXIS 74 (Ky. Ct. App. 2010).

9.— Discretion of Court.

This section vests in the trial court wide discretion in the division of marital property. Johnson v. Johnson, 564 S.W.2d 221, 1978 Ky. App. LEXIS 498 (Ky. Ct. App. 1978).

The trial judge was not clearly erroneous in awarding two rings to the wife where the evidence supported the determination that the rings were gifts. Ghali v. Ghali, 596 S.W.2d 31, 1980 Ky. App. LEXIS 300 (Ky. Ct. App. 1980).

Since military retirement benefits, waived by husband in order to receive disability compensation, are specifically excluded from division of marital property, where husband so waived his military retirement benefits it was not an abuse of discretion for the trial court to award ownership of a $10,000 certificate of deposit exclusively to wife, as the division of property need not be equal, but only in just proportions. Davis v. Davis, 777 S.W.2d 230, 1989 Ky. LEXIS 78 ( Ky. 1989 ).

Considering that wife received approximately $132,000.00 equity in the marital home, all of the parties’ furniture, an interest in two pension plans, life insurance policies, her car, and interest in an insurance agency totaling approximately $28,000.00 and one-half (1/2) of an account totaling approximately $15,000.00, the Court of Appeals was unable to find that the trial court abused its discretion in awarding her $1,350.00 per month, as well as the cost of providing medical insurance. Underwood v. Underwood, 836 S.W.2d 439, 1992 Ky. App. LEXIS 164 (Ky. Ct. App. 1992), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

Considering the fact that the wife was awarded a larger portion of the marital assets, as best shown by the fact that she received the lion’s share of the farm, and, furthermore, in light of the fact that the wife had a greater pool of nonmarital property from which to draw, the trial court did not abuse its discretion in awarding the husband the entirety of his modest retirement account even though it was marital property. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

10.—Considerations.

Where defendant husband in divorce action added $30,000 in assets to real estate corporation prior to his marriage, then used corporation for sole purpose of owning and operating retail clothing store, with both husband and wife participating in operation of the store, and sold all capital stock in corporation for $120,000, the profit made by defendant was marital property under this section rather than an increase in the value of his nonmarital property, and the wife was entitled to a portion of the profit under this section; however, since the record did not show the net worth of the corporation at any time and it was conceivable that depending upon accounting techniques and other circumstances no profit was realized it is possible that the wife would not receive any of the income in the dissolution proceedings. Sousley v. Sousley, 614 S.W.2d 942, 1981 Ky. LEXIS 239 ( Ky. 1981 ).

When the nonmarital property of one spouse is expended as a part of the team effort for the benefit of the marriage, that amount can be considered by the trial court in measuring the contribution of each spouse to the acquisition of the marital property, and, in addition, the trial court may consider the economic circumstances of each spouse, which would include health and ability to work. Turley v. Turley, 562 S.W.2d 665, 1978 Ky. App. LEXIS 474 (Ky. Ct. App. 1978).

A decree of dissolution which awarded the wife 70% of marital property and gave the husband 30% was reversed and remanded where husband’s nonmarital property and his share of the marital property were awarded to him in the form of a pension fund to which he would have no access for many years, and where husband’s economic situation was as bleak as the wife’s situation. Garrett v. Garrett, 766 S.W.2d 634, 1989 Ky. App. LEXIS 31 (Ky. Ct. App. 1989).

The trial court considered factors other than those utilized by the experts in valuing the insurance business. Although not calculated with mathematical exactitude, the court’s figure clearly fell within the range of competent testimony. A trial court’s valuation in a divorce action will not be disturbed on appeal unless it is clearly contrary to the weight of the evidence. Underwood v. Underwood, 836 S.W.2d 439, 1992 Ky. App. LEXIS 164 (Ky. Ct. App. 1992), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

Trial court abused its discretion in awarding wife 85% of the marital estate merely because it accumulated primarily from her nonmarital property. Upon remand the trial court should make a reapportionment of marital property, giving the factor of “contribution of each spouse to acquisition of marital property” only such weight as was fairly reflected by the evidence while also giving appropriate weight to the other statutory factors. Dotson v. Dotson, 864 S.W.2d 900, 1993 Ky. LEXIS 145 ( Ky. 1993 ).

Where liens are obtained on marital property subsequent to the filing of a lis pendens by a non-debtor spouse, they are extinguished to the extent of the ownership interest awarded to that spouse in dissolution litigation. Strong v. First Nationwide Mortg. Corp., 959 S.W.2d 785, 1998 Ky. App. LEXIS 4 (Ky. Ct. App. 1998).

Although money paid by the wife to the IRS was unquestionably nonmarital, there was no indication that the parties had separated at the time of the gift, nor was there any indication that the parties had agreed that the gift was to be excluded from the marital property; thus, the trial court correctly found that the $14,000 payment to the IRS, so the husband could avoid additional legal trouble, was a generous, marital gift from the wife to the husband. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

It was error for the family court to conclude that it was compelled to assign a goodwill value to the wife’s medical practice when dividing up the marital property. However, under Kentucky law, the family court was not required to differentiate between enterprise goodwill and personal goodwill that had been developed in the business. Gaskill v. Robbins, 2006 Ky. App. LEXIS 364 (Ky. Ct. App. Dec. 8, 2006), sub. op., 2006 Ky. App. Unpub. LEXIS 1101 (Ky. Ct. App. Dec. 8, 2006), aff'd in part, 282 S.W.3d 306, 2009 Ky. LEXIS 22 ( Ky. 2009 ).

The amount to which a wife’s 401(k) account was to be exempted was governed by the limitation found in KRS 403.190(4), i.e. her account was exempt up to an amount that did not exceed the value of the husband’s exempt teacher’s retirement account. Boone v. Ballinger, 228 S.W.3d 1, 2007 Ky. App. LEXIS 133 (Ky. Ct. App. 2007).

Because the ex-husband did not establish that the increase in value of the marital residence was due to general economic circumstances or his sole efforts, where improvements had been made while the parties were married, the appreciation in value of the residence had to be deemed to be marital property. The trial court should also have recognized that marital funds were used to reduce the mortgage debt and should additionally have apportioned some of the increased value in property as marital property. Croft v. Croft, 240 S.W.3d 651, 2007 Ky. App. LEXIS 422 (Ky. Ct. App. 2007).

Where the spouses formed a closely held corporation and entered into that business relationship as business partners, and it was reasonable to conclude that while the husband contributed more than the wife financially, she contributed a corresponding amount in her effort as manager of the business both before and during the marriage, the Family Court acted within its discretion when it found that her nonmarital contribution as manager of the property was equal to the monetary contribution of non-martial funds contributed by the husband and awarded each party a one-half interest in the business. Fehr v. Fehr, 284 S.W.3d 149, 2008 Ky. App. LEXIS 306 (Ky. Ct. App. 2008).

Marital property distribution was affirmed where the wife’s professional degree was not marital property, and the even split was appropriate. Little v. Little, 2021 Ky. App. Unpub. LEXIS 189 (Ky. Ct. App. Mar. 12, 2021).

11.— —Division.

Trial court properly divided the parties’ marital property in just proportions, in part because the trial court clearly considered that the parties really only lived as a married couple for approximately four years, during which the wife worked and supported herself and the husband received disability. The husband had a home of his own and did not need the marital residence for living purposes and the wife had paid for the improvements to the property and paid the property taxes on it throughout the marriage. Muir v. Muir, 406 S.W.3d 31, 2013 Ky. App. LEXIS 114 (Ky. Ct. App. 2013).

Trial court properly divided the property in question, in part because Kentucky law clearly mandated that how title to property was held was not determinative as to whether the property in question is non-marital or marital. Rather, the trial court was required to consider the relevant statutory factors in dividing property between the husband and wife, as it properly held. Muir v. Muir, 406 S.W.3d 31, 2013 Ky. App. LEXIS 114 (Ky. Ct. App. 2013).

Marital and non-marital shares used to construct a single residence that had decreased in value shared proportionally in the loss where the decrease in value of the combined marital and non-marital funds was due to general economic conditions. Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

Family court’s award of two firearms to the mother was affirmed where the family court found in its written order that they were marital property, and nothing in Ky. Rev. Stat. Ann. § 403.190(1) required the court to consider the best interests of the child when awarding property in a dissolution action. Louisville R. Co. v. Masterson, 96 S.W. 534, 29 Ky. L. Rptr. 829 , 1906 Ky. LEXIS 347 (Ky. Ct. App. 1906).

Circuit court did not err in dividing an income tax refund in a dissolution of marriage because the equal division of the tax refund was appropriate as the court considered the parties’ contributions in that, while the husband was the wage earner spouse, the wife contributed to the marriage as a homemaker spouse during most of the 39-year marriage. Paoli v. Paoli, 634 S.W.3d 615, 2021 Ky. App. LEXIS 83 (Ky. Ct. App. 2021).

11.— Division.

Where a husband and wife had acquired a joint bank account of $6,200, from which the wife withdrew $3,100 at the time of separation, which the parties agreed she could use for living expenses in lieu of maintenance and child support, the husband would be entitled to half of the remaining $3,100, since the wife was not chargeable therefor and the marital account was reduced to $3,100. Allen v. Allen, 584 S.W.2d 599, 1979 Ky. App. LEXIS 431 (Ky. Ct. App. 1979).

The trial court abused its discretion by not delaying division of the husband’s interest in an employee pension plan, which qualified for preferential tax treatment, until a more suitable time in light of the severe economic consequences the husband and the other employees of his firm would suffer if the division was currently effective. Owens v. Owens, 672 S.W.2d 67, 1984 Ky. App. LEXIS 517 (Ky. Ct. App. 1984).

The division of the marital assets was not clearly erroneous nor a clear abuse of discretion, where the wife was awarded $300,000 and other assets totaling $512,000, and the husband was awarded assets with a net value of $1,024,525. Wood v. Wood, 720 S.W.2d 934, 1986 Ky. App. LEXIS 1458 (Ky. Ct. App. 1986).

Where the trial court divided marital assets valued at approximately $150,000, restored nonmarital property, and included an award of possession of the marital residence to the husband until the minor child attained age 19 and completed high school, when the wife would pay the husband for his one-half (1/2) interest in the residence plus interest, the court’s apportionment of the marital property was not clearly erroneous. Cochran v. Cochran, 746 S.W.2d 568, 1988 Ky. App. LEXIS 46 (Ky. Ct. App. 1988), overruled in part, Rumpel v. Rumpel, 438 S.W.3d 354, 2014 Ky. LEXIS 331 ( Ky. 2014 ).

Pursuant to 10 USCS § 1408(a)(4), amounts waived in order to receive disability compensation, or VA benefits received in lieu of military retirement pay, are specifically excluded from division as marital property; however, if an inequity arises in an individual case, the trial court can resolve the problem by making an appropriate award of spousal support and/or marital property. Davis v. Davis, 777 S.W.2d 230, 1989 Ky. LEXIS 78 ( Ky. 1989 ).

As the trial court considered all relevant factors, including those listed in KRS 403.190(1)(a)-(d), its award of 57 percent of the marital assets to the wife, and 43 percent to the husband, was not an abuse of discretion. Stipp v. St. Charles, 291 S.W.3d 720, 2009 Ky. App. LEXIS 96 (Ky. Ct. App. 2009).

Where the husband received the parties’ stimulus check after the entry of the final divorce decree, the trial court did not abuse its discretion by reopening of the divorce decree under CR 60.02 for the entry of an order distributing the stimulus payment. Although the wife was not working outside the home, the funds were generated from the marital estate and were fairly classified as marital property; the trial court acted in accordance with KRS 403.190 by equally dividing the check. Wilder v. Wilder, 294 S.W.3d 449, 2009 Ky. App. LEXIS 152 (Ky. Ct. App. 2009).

Where a husband filed for workers’ compensation benefits after he and his wife separated and a workers’ compensation settlement agreement was approved after the wife petitioned for dissolution of marriage, the entire workers’ compensation settlement was marital property, and the trial court did not err in dividing the settlement amount equally between the husband and wife because the marriage was not of a short duration, the husband did not demonstrate that he was totally disabled, the husband had the ability to obtain appropriate job skills but chose not to do so, and the parties contributed equally to the marriage. Day v. Day, 302 S.W.3d 86, 2009 Ky. App. LEXIS 248 (Ky. Ct. App. 2009).

12.— Dissipation.

The concept of dissipation, that is, spending funds for a nonmarital purpose, is an appropriate one for the court to consider when the property is expended during a period when there is a separation or dissolution impending, and where there is a clear showing of intent to deprive one’s spouse of his or her proportionate share of the marital property. Robinette v. Robinette, 736 S.W.2d 351, 1987 Ky. App. LEXIS 524 (Ky. Ct. App. 1987).

The evidence failed to support the determination that the wife dissipated marital funds, where, while there was a showing that over a period of several months the wife used money from the business for nonbusiness-related reasons, there was no showing of what the money was used for, there was no evidence of when the marital breakdown occurred or whether the money was spent at a time when the dissolution was being contemplated, and there was no testimony from which the court could infer that the wife used the money for a personal, as opposed to marital, reason and certainly no evidence that it was spent with the intent of depriving the husband of his share of the estate. Robinette v. Robinette, 736 S.W.2d 351, 1987 Ky. App. LEXIS 524 (Ky. Ct. App. 1987).

Evidence was sufficient to show that the husband dissipated marital assets in contemplation of divorce where he maintained a joint checking account with his mistress and otherwise conducted himself in a manner consistent with an intention of eventually marrying her. Brosick v. Brosick, 974 S.W.2d 498, 1998 Ky. App. LEXIS 60 (Ky. Ct. App. 1998).

Dissipated assets are considered as assets already received by the offending party and, once the court accounts for those assets, the court may divide the remaining assets in such proportions as it deems just. Brosick v. Brosick, 974 S.W.2d 498, 1998 Ky. App. LEXIS 60 (Ky. Ct. App. 1998).

Because the court’s finding that a husband’s gifts of over $2 million to family members over several months were made when a dissolution was anticipated was not clearly erroneous, the court did not err in crediting the husband’s award of marital property with $2,052,297.00, based on dissipation of the marital estate under KRS 403.190 . Kleet v. Kleet, 264 S.W.3d 610, 2007 Ky. App. LEXIS 243 (Ky. Ct. App. 2007).

While the trial court equally divided the marital property, its ruling ignored the significance of the parties’ earlier property division during a separation, and the ex-husband’s subsequent dissipation of his share of the marital property by failing to provide any documents regarding the disposition of his proceeds; thus, the trial court failed to justly divide the parties’ marital property and the ex-wife was entitled to be restored to her $63,310.63 from the down payment on the marital residence. Heskett v. Heskett, 245 S.W.3d 222, 2008 Ky. App. LEXIS 3 (Ky. Ct. App. 2008).

Family court did not err in considering the needs and wants of the parties’ minor children in dividing the marital property under KRS 403.190 ; it was not error for the trial court to award a vehicle to the husband for the children to use as transportation to school. Brooks v. Brooks, 350 S.W.3d 823, 2011 Ky. App. LEXIS 111 (Ky. Ct. App. 2011).

Trial court's ruling that the husband had not dissipated marital assets was upheld where, during their separation, both parties traveled, made extravagant purchases and spent marital property, as they had done in the marriage. Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

Trial court did not err in finding that a husband dissipated marital assets by forfeiting the husband's right to unvested restricted stock units (RSUs) issued by the husband's employer just two months prior to their vesting date because the husband's act of forfeiting the RSUs by terminating the husband's employment during the pendency of the parties' divorce was an intentional waste or a selfish financial impropriety, intended to deprive the wife of the wife's proportionate share of the marital estate. Duffy v. Duffy, 540 S.W.3d 821, 2018 Ky. App. LEXIS 39 (Ky. Ct. App. 2018).

13.Nonmarital Property.

Where a husband traced the proceeds from the sale of the farm which he owned at the time of the marriage into a lot which was owned by the parties, it was not error for the trial court to award him that sum as nonmarital property in lieu of the lot itself. Turley v. Turley, 562 S.W.2d 665, 1978 Ky. App. LEXIS 474 (Ky. Ct. App. 1978).

Where a husband traced $40,000 in savings to proceeds received by him from two life insurance policies following the death of his father, the trial court correctly held that this $40,000 account constituted nonmarital property. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

The gain in value of stocks purchased during the marriage with nonmarital funds was not marital property. Daniels v. Daniels, 726 S.W.2d 705, 1986 Ky. App. LEXIS 1495 (Ky. Ct. App. 1986), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

A 1980 Cadillac which husband gave wife as a Christmas present in 1980 while she was pregnant with their daughter, and which wife used most of the time was properly found to be wife’s nonmarital property. Clark v. Clark, 782 S.W.2d 56, 1990 Ky. App. LEXIS 3 (Ky. Ct. App. 1990).

Evidence was sufficient to require a finding that 27 shares of stock which wife had brought into the marriage and increased to 50 shares by the dissolution is nonmarital property and should be assigned to her. Chenault v. Chenault, 799 S.W.2d 575, 1990 Ky. LEXIS 104 ( Ky. 1990 ).

Where Railroad Retirement disability annuity payments can be traced into identifiable assets, those assets are nonmarital as 45 USCS § 231m(a) provides that such annuity payments shall not “be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever . . . . . ” Elkins v. Elkins, 854 S.W.2d 787, 1993 Ky. App. LEXIS 76 (Ky. Ct. App. 1993).

Where the 112-acre tract of land in question belonged to the ex-husband and his sister prior to the marriage, was conveyed to a third party, who defaulted on it, was purchased by the ex-husband and his sister prior to the marriage, and the sister conveyed her one-half (1/2) interest in the land to the ex-husband and the ex-wife during the marriage, and the purchase was made with joint funds, the appellate court rejected the ex-wife’s challenge to the Circuit Court’s characterization of the disputed one-half (1/2) interest in the property as the ex-husband’s nonmarital property Brewick v. Brewick, 121 S.W.3d 524, 2003 Ky. App. LEXIS 292 (Ky. Ct. App. 2003).

Trial court erred by finding a husband’s Kentucky Employees Retirement System (KERS) account to have been entirely marital where his right to purchase service credit with the KERS arose from his employment before the marriage, was thus non-marital, and, although the husband withdrew those premarital funds, his right to participate in the KERS was not terminated; the fact that the value of the husband’s KERS account was enhanced by marital funds did not alter its non-marital character, and only the increase in value and the funds contributed in pursuit of that increase were subject to division as marital property. Overstreet v. Overstreet, 144 S.W.3d 834, 2003 Ky. App. LEXIS 315 (Ky. Ct. App. 2003).

Trial court’s finding that a gas line purchased during the marriage was separate property was not clearly erroneous and was supported by substantial evidence where the husband purchased an interest in two partnerships owning three (3) gas wells with his proceeds from the sale of a family business, which he received shortly before the marriage. Polley v. Allen, 132 S.W.3d 223, 2004 Ky. App. LEXIS 83 (Ky. Ct. App. 2004).

Trial court erred as the wife’s father demonstrated an overriding desire to preserve as much of his estate as possible for the wife and her sister in making $10,000 per year gifts in order to avoid taxes. Thus, the checks to the husband were only made because he was an available conduit for gift tax purposes and the entirety of the second-to-die policy proceeds should have been the wife’s nonmarital property. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

Where the wife’s father created an irrevocable trust, or a Crummey Trust, where, upon the mother’s death, the trust was to pass tax-free to the wife and her sister, the trial court erred by awarding the husband any interest in the trust. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

Since the husband inherited the life estate in the farm and the accompanying tobacco quota prior to the marriage, those items were the husband’s property. As a result, the trial court should not have classified Tobacco Transition Payment Program payments as marital property. Jones v. Jones, 245 S.W.3d 815, 2008 Ky. App. LEXIS 24 (Ky. Ct. App. 2008).

Under the “source of funds” rule to determine whether property is marital or nonmarital, the property is considered to be acquired as it is paid for; characterization of property as nonmarital or marital depends upon the source of each contribution as payments are made rather than the time at which equitable title to possession of the property is obtained. Under this analysis, the shares of stock sold to the corporation in the 1996 stock redemption agreement were not “acquired,” within the meaning of KRS 403.190 until they were paid for. These shares were paid for during the marriage over a period of years by corporate earnings. Thus, they were “acquired” during the marriage. Because the shares were “acquired” during the marriage, there is a presumption that they are marital property. Allison v. Allison, 246 S.W.3d 898, 2008 Ky. App. LEXIS 35 (Ky. Ct. App. 2008).

The husband’s transfer of real property to a limited partnership and assignment of partnership interests to an irrevocable trust extinguished the wife’s equitable interest in that property. That property was validly excluded from the marital estate by a valid agreement pursuant to KRS 403.190(2)(d) to which the wife gave consent, and, thus, the property was not subject to division. Gripshover v. Gripshover, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

As the evidence supported the trial court’s finding that a former wife used the parties’ tax refund to pay for their child’s tuition and medical care for his inpatient counseling and treatment, its decision not to include the refund in the total value of marital assets to be distributed was not an abuse of discretion. Stipp v. St. Charles, 291 S.W.3d 720, 2009 Ky. App. LEXIS 96 (Ky. Ct. App. 2009).

Family court abused its discretion in determining that a marital investment account was the one spouse's non-marital interest and in assigning it to that spouse because the spouse did not meet the spouse's burden to establish that the account contained the funds which the spouse received from the spouse's parents and therefore, the funds in the account, and any interest earned, should not have been deemed non-marital and assigned to the spouse. McVicker v. McVicker, 461 S.W.3d 404, 2015 Ky. App. LEXIS 15 (Ky. Ct. App. 2015).

Transfer of cash from the husband's parents to partially finance the construction of the parties' residence was nonmarital property because the transfer was a gift made solely to the husband; the parents used their own funds to make gifts to the husband that were intended solely for him, and they received nothing in return. Barber v. Bradley, 505 S.W.3d 749, 2016 Ky. LEXIS 632 ( Ky. 2016 ).

Trial court properly excluded restricted stock units (RSUs) from a husband’s income in calculating maintenance and child support because the RSUs were nonmarital property belonging to the husband; the RSUs did not vest or fall under the husband’s control until the passing of a specified future date. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Trial court did not err in awarding funds from a husband’s retirement account to him as nonmarital property because the husband supported his testimony with documentation showing the roll-over deposit into his account. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Trial court properly ruled that a wife failed to meet her burden of proving her nonmarital interest in the parties’ undeveloped real property because the wife was unable to provide any documentation supporting her nonmarital claim to the property; considering the conflicting testimony offered by the husband and the wife on the issue, the trial court properly found neither party was able to prove a nonmarital interest in their premarital purchase of the property. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

14.— Increase in Value.

An increase in value of nonmarital property during marriage which is the result of a joint effort of the parties establishes the increase in value of the nonmarital property as marital property. The efforts of the parties may include the contribution of one spouse as a primary operator of the business and the other spouse as primarily a homemaker. Goderwis v. Goderwis, 780 S.W.2d 39, 1989 Ky. LEXIS 98 ( Ky. 1989 ).

Income produced from nonmarital property is marital property for purposes of disposition of property pursuant to this section. However, a mere increase in value of nonmarital property remains nonmarital. Therefore, accumulated interest earned from nonmarital funds deposited in a savings account is income and is to be treated as marital property and should be appropriately divided between the parties. Such interest is not an increase in value of a nonmarital asset. Mercer v. Mercer, 836 S.W.2d 897, 1992 Ky. LEXIS 125 ( Ky. 1992 ).

Trial court did not err in finding that the increase in value to a husband’s 401k, IRA, and life insurance policy were attributable to marital contributions where the numbers in a spreadsheet did not match the other documentation regarding the accounts, thus, the spreadsheet was admitted only as indicative of the husband’s position, and the husband did not present any evidence as to the actual growth of the accounts during the marriage, except for the beginning and ending numbers. Cobane v. Cobane, 544 S.W.3d 672, 2018 Ky. App. LEXIS 107 (Ky. Ct. App. 2018).

15.— Exchange During Marriage.

This section mandates restoration to the spouse having a nonmarital interest in property owned at the date of marriage, the appreciated value of that same interest in any property acquired in exchange during the marriage, not attributable to the joint efforts of the parties; the only requirement is that the spouse prove that the nonmarital funds have been reinvested in the property acquired in exchange. Woosnam v. Woosnam, 587 S.W.2d 262, 1979 Ky. App. LEXIS 464 (Ky. Ct. App. 1979).

16.— Tracing.

The requirement that nonmarital assets be “traced” should be fulfilled, where money is concerned, when it has been shown that nonmarital funds were deposited and commingled with marital funds and that the balance of the account was never reduced below the amount of the nonmarital funds deposited, and where that can be done the nonmarital funds must be restored. Allen v. Allen, 584 S.W.2d 599, 1979 Ky. App. LEXIS 431 (Ky. Ct. App. 1979).

The trial court properly awarded the stock purchased with nonmarital money as nonmarital property to the husband, where the husband had traced money which he had inherited to its use in the purchase of stock, and, except for one trade involving the sale of one stock and the purchase of another, the husband had kept intact the securities which he had bought from his cash inheritances. Daniels v. Daniels, 726 S.W.2d 705, 1986 Ky. App. LEXIS 1495 (Ky. Ct. App. 1986), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

Precise requirements for nonmarital asset-tracing may be appropriate for skilled business persons who maintain comprehensive records of their financial affairs, but such may not be appropriate for persons of lesser business skills or persons who are imprecise in their recordkeeping abilities. Chenault v. Chenault, 799 S.W.2d 575, 1990 Ky. LEXIS 104 ( Ky. 1990 ).

Where wife presented unchallenged evidence that she owned her home prior to her marriage, that it was sold during her marriage, that she bought and paid for a $10,000 Treasury Note prior to her marriage, and that it was reinvested during the course of the marriage, where the trial court found that at the time of the dissolution, she had in her possession $91,000 worth of liquid assets, and that during the marriage she had worked little and then only in a low income position, the conclusion was unavoidable that the money she claimed as nonmarital was included in her current asset portfolio and should be assigned to her, even though she was unable to document every interest payment and reinvestment made during a 16-year period. Chenault v. Chenault, 799 S.W.2d 575, 1990 Ky. LEXIS 104 ( Ky. 1990 ).

Contrary to the wife’s position, the fact that the current house was built with insurance proceeds, after the prior house burned, did not alter the appeals court’s conclusion that the house was the husband’s nonmarital property gifted to him by his parents; the proceeds merely served to replace the value of the house that was the husband’s existing nonmarital property. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

While a husband probably had some nonmarital interest in the marital home, he failed to introduce sufficient evidence to award him that interest as he could not produce records of his investments. Kleet v. Kleet, 264 S.W.3d 610, 2007 Ky. App. LEXIS 243 (Ky. Ct. App. 2007).

Trial court erred in awarding real property and a cabinet shop to the husband as his separate property because the property was purchased and the cabinet shop was built after the parties’ marriage and the husband failed to present clear and convincing evidence that the funds used to purchase the property and build the improvements were traced to his nonmarital assets. Because the evidence did not support the husband’s claim that only his premarital assets were used to purchase the lot and build the cabinet shop, the trial court erred in finding that them to be nonmarital property. Crawford v. Crawford, 358 S.W.3d 16, 2011 Ky. App. LEXIS 240 (Ky. Ct. App. 2011).

In finding that deposited funds did not fall below the amount of an inheritance and remained nonmarital property, the family court erred in lumping three accounts together when it applied the rule that cash can be traced by showing that nonmarital funds were deposited and commingled with marital funds and that the balance of the account was never reduced below the amount of the nonmarital funds deposited. Findings were necessary as to the particular account where the inheritance was deposited. Mattingly v. Fidanza, 411 S.W.3d 250, 2013 Ky. App. LEXIS 137 (Ky. Ct. App. 2013).

16.—Tracing.

Circuit court properly denied a wife’s motion to alter, amend, or vacate its findings on timesharing with the parties’ minor son and a portion of its classification and division of marital and nonmarital assets because, while she was obviously dissatisfied with the trial court’s decision, her threadbare recitals of the elements of a legal theory, supported by mere conclusory statements, were insufficient, and the increase in the value of the farm was due to the husband’s expenditure of nonmarital funds where, while the renovations were initially paid for using funds from a marital account, the husband testified that the purpose of depositing his inheritance money into the marital account was to reimburse the cost of renovations. Jones v. Livesay, 551 S.W.3d 47, 2018 Ky. App. LEXIS 170 (Ky. Ct. App. 2018).

As the husband was missing six years’ worth of statements from his retirement account, there was no way he could have accurately traced the interest attributable to his nonmarital portion of the account, and because it was clear he could not meet his burden, there was no error on the trial court’s part in refusing to allow him to testify on the issue. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

17.Property Owned at Time of Marriage.

Where husband owned certain property at the time of marriage and the wife had acquired no interest in it when it was sold a few years later, upon the subsequent divorce of the parties, the husband was entitled to the proceeds without reference to the value of the property at the time of the marriage. Stubblefield v. Stubblefield, 327 S.W.2d 24, 1959 Ky. LEXIS 68 ( Ky. 1959 ) (decided under prior law).

The property owned by each at time of the marriage and any increase in the value of such property to the extent that such increase did not result from joint efforts during the marriage must upon divorce be restored to the original owner. Sharp v. Sharp, 491 S.W.2d 639, 1973 Ky. LEXIS 576 ( Ky. 1973 ) (decided under prior law).

18.Improvements to Separate Property.

The court granting a divorce to the wife might order her to pay the amount expended by the husband in permanent improvements upon her property. Sandusky v. Sandusky, 166 Ky. 472 , 179 S.W. 415, 1915 Ky. LEXIS 711 ( Ky. 1915 ) (decided under prior law).

A wife was not obligated to pay the husband for improvements he made to her property or encumbrances he satisfied where he had use of the property by virtue of their marriage. Rogers v. Rogers, 295 S.W.2d 302, 1956 Ky. LEXIS 156 ( Ky. 1956 ) (decided under prior law).

Upon divorce wife was entitled to restoration of amounts she expended to improve the husband’s land although the expenditures did not enhance the value of the land. Triplett v. Triplett, 328 S.W.2d 544, 1959 Ky. LEXIS 130 ( Ky. 1959 ) (decided under prior law).

Where parties agreed to a property settlement then reconciled, the wife’s claim for funds expended by her after the reconciliation to improve the husband’s property was not affected by the prior agreement and these amounts were properly restored to the wife. Triplett v. Triplett, 328 S.W.2d 544, 1959 Ky. LEXIS 130 ( Ky. 1959 ) (decided under prior law).

Where a husband proved that he had constructed improvements on his wife’s property, but failed to prove the value of these services, he was not entitled to an interest in the property upon their divorce. Damron v. Damron, 415 S.W.2d 836, 1967 Ky. LEXIS 333 ( Ky. 1967 ) (decided under prior law).

19.Educational Degrees.

Where a husband acquired a degree to practice pharmacy by virtue of the joint efforts of he and his wife during their marriage, the pharmacy degree was marital property, and upon the dissolution of the marriage the wife was entitled to a return on her portion of the marital contribution to the cost of the husband’s education. However, the wife’s return was restricted to recouping her portion of the education investment and in no way reached the value of a license to practice pharmacy or the dividends it may have carried in the future. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

An educational degree received by one spouse while the other spouse contributes financially to the cost of obtaining the degree is not, upon a dissolution of their marriage, marital property. However, a person who has supported his or her spouse while the other spouse was in school should be fairly compensated, when the marriage is dissolved before the family is able to realize the benefits from the spouse’s advanced education. Inman v. Inman, 648 S.W.2d 847, 1982 Ky. LEXIS 335 ( Ky. 1982 ).

The proper formula to be followed in placing a value on an educational degree secured by a spouse, to which the other spouse contributed financially, is to measure the recovery by the amount of money the noncollege going spouse contributed toward living expenses, the amount of money contributed for educational costs, and the potential for increase in future earning capacity made possible by the degree, thus not treating the degree as marital property. Inman v. Inman, 648 S.W.2d 847, 1982 Ky. LEXIS 335 ( Ky. 1982 ).

A professional degree may not be treated as marital property. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

A spouse who has worked and financially contributed to the other spouse’s acquisition of a professional degree should not automatically receive a monetary award based on a prescribed formula; the dissolution of marriage statutes simply do not authorize trial courts to make such an award. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

If a divorce occurs shortly after a professional spouse has acquired a degree, an award of the major share of the parties’ marital property to the working spouse can be justified under subdivision (1)(a) of this section because that spouse will have contributed more to its acquisition and, moreover, if the divorce occurs some years later, the court can still consider the working spouse’s contribution to the professional degree in determining how to divide their marital estate; in addition, due to the degree, the professional spouse, no matter when the divorce occurs, will probably possess a larger earning capacity than the working spouse and subdivision (1)(d) permits the court to consider this “economic circumstance” in dividing the parties’ marital property. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

Where a professional degree cannot be viewed as marital property under Kentucky law, it can be considered as an asset of the marriage in looking at the parties’ respective contributions when the court is dividing marital property and allocating responsibility for marital debts. Schmitz v. Schmitz, 801 S.W.2d 333, 1990 Ky. App. LEXIS 131 (Ky. Ct. App. 1990).

The contribution of a spouse toward the other spouse’s education or professional degree may be considered; however, it was not error to deny the husband’s claim for reimbursement based on his support of his wife during the period she pursued a nursing degree. Brosick v. Brosick, 974 S.W.2d 498, 1998 Ky. App. LEXIS 60 (Ky. Ct. App. 1998).

Trial court appropriately considered an ex-wife’s claim that she contributed toward the ex-husband’s law degree and, after considering the evidence, rejected her claim. The ex-husband obtained the degree without a break in his employment and continued his parenting duties while in school; the property division was appropriate pursuant to KRS 403.190 . Shively v. Shively, 233 S.W.3d 738, 2007 Ky. App. LEXIS 328 (Ky. Ct. App. 2007).

20.Life Insurance.

Where nothing in the terms or provisions of the decree of dissolution of marriage made any provision for the disposition of the policy of insurance or of any interest of the named beneficiary, where the decedent alone determined to make his ex-wife the beneficiary at a time when they were not married, to retain her as the beneficiary during the period of their marriage, and not to take from her the interest of a beneficiary, and where he alone owned and controlled the policy and the right to change the beneficiary if he chose to do so, the ex-wife was entitled to receive the proceeds from the policy of insurance. Ping v. Denton, 562 S.W.2d 314, 1978 Ky. LEXIS 326 ( Ky. 1978 ).

Because of the construction of the word “property” as used in previous statutes and the legislature’s continued use of the word in this section, this section does not change the established rule that a spouse’s interest as beneficiary of insurance on the life of the other spouse terminates with their divorce, nor does the use of the word “assign” rather than “restore,” as in the former statute, have any significance in that respect. Kentucky Cent. Life Ins. Co. v. Willett, 557 S.W.2d 222, 1977 Ky. App. LEXIS 935 (Ky. Ct. App. 1977).

Where insurance policies were acquired during the marriage and had a present cash value, the wife should have been awarded one-half (1/2) of the cash value of the insurance policies under this section, and the requirement that the husband maintain insurance payable to children until they reached age 18 did not change the character of the insurance as property. Leveck v. Leveck, 614 S.W.2d 710, 1981 Ky. App. LEXIS 238 (Ky. Ct. App. 1981).

The present cash value of a life insurance policy obtained with marital funds is marital property subject to a division under this section; however, a term policy with no cash or present value is not subject to division. Davis v. Davis, 775 S.W.2d 942, 1989 Ky. App. LEXIS 109 (Ky. Ct. App. 1989).

Under subsection (2) of this section, all property is marital property if acquired during the marriage; by implication, the property must also be acquired before the death of a spouse, and where insurance proceeds from term life insurance policies were realized only after death, they were not acquired during the marriage. Davis v. Davis, 775 S.W.2d 942, 1989 Ky. App. LEXIS 109 (Ky. Ct. App. 1989).

21.Pension Funds.

Even though the court usually does not consider nonvested rights in a pension fund when dividing marital property, a nonvested or contingent amount in a pension fund can, where equity so requires, be viewed as an “economic circumstance” as provided for in subsection (1)(d) of this section even though the nonvested fund is not marital property and thus cannot be divided. Ratcliff v. Ratcliff, 586 S.W.2d 292, 1979 Ky. App. LEXIS 455 (Ky. Ct. App. 1979).

Court did not err in excluding the employer’s contribution to husband’s pension plan during the marriage from the marital property to be divided since the court considers not the source of the contribution, but rather whether a party’s rights in the fund have vested. Ratcliff v. Ratcliff, 586 S.W.2d 292, 1979 Ky. App. LEXIS 455 (Ky. Ct. App. 1979).

Even though a military pension, vested or nonvested, cannot be considered as divisible property, it may be used as a basis for paying maintenance if the equity of the total economic circumstances of the parties, including the spouse’s lack of property and ability to support herself, require that some amount of maintenance be awarded. Light v. Light, 599 S.W.2d 476, 1980 Ky. App. LEXIS 323 (Ky. Ct. App. 1980).

A pension is a form of deferred compensation which is earned during each day of month of military service or other work, and it cannot be considered as being earned on the day it matures; the value of a pension, if any, should therefore be marital property for the portion accrued during coverture, and this fact is true for any pension, whether nonvested or noncontributory. Light v. Light, 599 S.W.2d 476, 1980 Ky. App. LEXIS 323 (Ky. Ct. App. 1980).

Where military retirement pay was accumulated entirely during the marriage, it was “property” within the meaning of subsection (2) of this section; thus, the pay was subject to division by the court as marital property. Jones v. Jones, 680 S.W.2d 921, 1984 Ky. LEXIS 275 ( Ky. 1984 ).

A spouse’s interest in a nonvested pension plan is marital property which must be divided under this section. Poe v. Poe, 711 S.W.2d 849, 1986 Ky. App. LEXIS 1082 (Ky. Ct. App. 1986).

The correct date to value pension and profit sharing plans is the date of the dissolution decree. Clark v. Clark, 782 S.W.2d 56, 1990 Ky. App. LEXIS 3 (Ky. Ct. App. 1990).

A non-vested pension is marital property, but should not be divided until it has vested; it was error to award wife certain marital property in lieu of her portion of husband’s police department pension. Glidewell v. Glidewell, 859 S.W.2d 675, 1993 Ky. App. LEXIS 51 (Ky. Ct. App. 1993).

That part of a teacher’s spouse’s pension which is over and above the value of the teacher’s plan should not be considered marital property; thus, even in a situation where the teacher/spouse has taught only a short time and has accrued a correspondingly small pension, and the other spouse has a large pension amassed after many years of work, the court is powerless to consider this “economic circumstance” when deciding how the other marital property is to be divided. Turner v. Turner, 908 S.W.2d 124, 1995 Ky. App. LEXIS 84 (Ky. Ct. App. 1995).

Where the words in a statute are clear and unambiguous and express the legislative intent, there is no room for construction and the statute must be accepted as it is written; therefore as both KRS 161.700(2) and subsection (4) of this section are unambiguous in their language leaving no doubt that the legislature intended to exempt, as marital property, the entire pensions of a teacher and his/her spouse upon divorce. Turner v. Turner, 908 S.W.2d 124, 1995 Ky. App. LEXIS 84 (Ky. Ct. App. 1995).

The pension, not the benefits, is the marital asset which is divided by the court. Brosick v. Brosick, 974 S.W.2d 498, 1998 Ky. App. LEXIS 60 (Ky. Ct. App. 1998).

Payments received by the husband after his voluntary resignation from the military under the federal Voluntary Separation Incentive program were marital property and were subject to equitable division since such payments are more closely akin to early retirement benefits than severance pay. Lykins v. Lykins, 34 S.W.3d 816, 2000 Ky. App. LEXIS 137 (Ky. Ct. App. 2000).

In a bifurcated divorce action where the only remaining contested issue related to property division was division of the parties’ pension plans, it was not error for a family court to divide the husband’s three (3) federal pension plans because 42 USCS § 659(i)(3)(B)(ii) did not exclude pension plans from property divisions; that statute was designed to exclude pension plans from the definition of alimony for purposes of enforcing child support and alimony obligations. However, the family court erred by failing to value the wife’s pension plan as of the day of dissolution for purposes of a set-off against the division of the husband’s plans; it was error to include future employer contributions to the plan in determining the value of the wife’s plan. Halicks v. Halicks, 2004 Ky. App. LEXIS 318 (Ky. Ct. App. Oct. 29, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. Oct. 29, 2004).

By its plain language, KRS 403.190(4) was to be read in conjunction, not in conflict with, KRS 161.700(2); a ruling that a husband in a divorce case was allowed to exclude the full amount of his Kentucky Teachers’ Retirement System (KTRS) account from classification and division as marital property pursuant to KRS 161.700(2) was error because the wife’s SEP-IRA qualified as a retirement account under KRS 403.190(4), and, thus, the divisionary rules of KRS 403.190(4) limited the amount of KTRS funds that the husband was allowed to exclude. Shown v. Shown, 233 S.W.3d 718, 2007 Ky. LEXIS 192 ( Ky. 2007 ).

A SEP-IRA falls within the definition of a “retirement account” as specifically defined by the Legislature in KRS 403.190(4). Shown v. Shown, 233 S.W.3d 718, 2007 Ky. LEXIS 192 ( Ky. 2007 ).

The clear, specific language of KRS 161.700(2) prevailed so as to exempt the entire amount of a husband’s teacher’s retirement account, even if that account was greater in value than the wife’s own 401(k) account; to hold otherwise would have improperly elevated the more general language of KRS 403.190(4) in derogation of the well-settled rule of statutory construction that a more specific provision was to take precedence over a more general provision. Boone v. Ballinger, 228 S.W.3d 1, 2007 Ky. App. LEXIS 133 (Ky. Ct. App. 2007).

In a divorce proceeding, the calculation of the present value of the husband’s pension plan was erroneous because a monthly benefit which included post-divorce earnings was used to determine the present value of the pension; even if the issue was not preserved by the husband, it was reviewable because the error was palpable. Hibdon v. Hibdon, 247 S.W.3d 915, 2007 Ky. App. LEXIS 484 (Ky. Ct. App. 2007).

Husband was entitled to CR 60.02(f) relief in seeking to amend language in his divorce decree relating to the division of his military retirement benefits; under KRS 403.190(1), the record did not distinguish between the marital and nonmarital portions of the husband’s military retired pay. Snodgrass v. Snodgrass, 297 S.W.3d 878, 2009 Ky. App. LEXIS 203 (Ky. Ct. App. 2009).

Family court did not err in excluding the husband’s retirement benefits from marital property because KRS 161.700 specifically exempts Kentucky Teachers’ Retirement System retirement benefits accumulated during the marriage from being classified as marital property subject to division. Brooks v. Brooks, 350 S.W.3d 823, 2011 Ky. App. LEXIS 111 (Ky. Ct. App. 2011).

Trial court erred in dividing the parties' retirement accounts because, by dividing the husband's teachers' retirement without regard to its substitution for Social Security it left the wife's Social Security benefits untouched and unconsidered, the trial court did not take any proof regarding newly created and complex financial computations in order to make an equitable distribution of the parties' entire financial circumstances where the wife had a qualified plan. Shown v. Shown, 479 S.W.3d 611, 2015 Ky. App. LEXIS 173 (Ky. Ct. App. 2015).

There was no error in including in an award to a former wife cost-of-living adjustments (COLAs) that a former husband's federal civil retirement account received after the parties divorced; this did not allow the former wife to enjoy a benefit that was earned post-decree, but it maintained the value of her martial interest vis-`-vis inflation. The original dissolution decree used the deferred distribution method and made no mention of the exclusion of any future COLAs. Brown v. Brown, 456 S.W.3d 823, 2015 Ky. App. LEXIS 3 (Ky. Ct. App. 2015).

Circuit court did not err in a dissolution of a marriage in its equal division of the husband’s retirement accounts because the court considered the contribution each spouse made in acquiring the property as the husband was the wage earner spouse and the wife was the homemaker spouse, the value of the property each spouse was receiving, the duration of the parties’ 39-year marriage, and the economic circumstances of each spouse once the property was divided. Paoli v. Paoli, 2021 Ky. App. LEXIS 83 (Ky. Ct. App. July 16, 2021).

22.Social Security Benefits.

Although the actual benefits themselves are not subject to division or set-off, a trial court’s consideration of non-prospective Social Security benefits in assessing the overall fairness of the parties’ property settlement agreement was not preempted by federal law. Gross v. Gross, 8 S.W.3d 56, 1999 Ky. App. LEXIS 152 (Ky. Ct. App. 1999).

Application of the four-factor Neidlinger test regarding the burden of proving that debt was marital debt showed that the husband had the burden of proving that debt that the husband helped the emancipated adult son incur was marital debt, as the husband helped the son create that debt without the wife’s knowledge or participation. As a result, the wife could not be held responsible for one-half of that debt in the husband and wife’s divorce proceedings, as even though KRS 403.190 created a rebuttable presumption that property acquired during the marriage was marital property, it did not create the same presumption regarding debt and the husband could not meet the husband’s burden of proof in showing that the debt the husband and son created was marital debt. Rice v. Rice, 336 S.W.3d 66, 2011 Ky. LEXIS 29 ( Ky. 2011 ).

23.Interest in Professional Service Corporation.

Goodwill can be considered as an asset in valuing a closely held corporation in a dissolution action. The most common method for valuing goodwill, the capitalization of excess earnings, is basically the amount the earnings of the professional spouse exceed those which would have been earned by a professional with similar education, experience, and skill as an employee in the same general area. Thus, the trial court erred in refusing to assign a value to the goodwill of the husband’s interest in his professional service corporation. Drake v. Drake, 809 S.W.2d 710, 1991 Ky. App. LEXIS 7 (Ky. Ct. App. 1991).

The trial court clearly erred by failing to consider personal and enterprise goodwill of the wife’s oral surgery practice. The trial court also abused its discretion by valuing the practice on an expert’s calculation of an estimated amount. Gaskill v. Robbins, 282 S.W.3d 306, 2009 Ky. LEXIS 22 ( Ky. 2009 ).

Attorney's contingent-fee contracts were marital property divisible as part of a marital estate because a contingent-fee contract was a chose in action that was a property right acquired subsequent to a marriage. Grasch v. Grasch, 536 S.W.3d 191, 2017 Ky. LEXIS 509 ( Ky. 2017 ).

When distributing a divorcing attorney's interest in a contingency-fee contract, trial courts were to apply the delayed-distribution method to determine the actual distribution of funds because (1) this afforded a non-attorney ex-spouse a rightfully obtained property interest created during the marriage while protecting an attorney from distributing anything until a case was won, since the attorney might ultimately prove to be unsuccessful in the case and receive nothing, and (2) the non-attorney ex-spouse was entitled only to a share of the contingent fee attributable to work done by the attorney spouse before the dissolution. Grasch v. Grasch, 536 S.W.3d 191, 2017 Ky. LEXIS 509 ( Ky. 2017 ).

24.Interest in Contingency Fee Contracts.

Because contingency fee cases run the risk of having zero or negative value, and because contingency fee contracts give the attorney no property interest in the client's funds, they are neither determinate things nor are they interests in the same. Accordingly, they are not property under Ky. Rev. Stat. Ann. § 403.190 . Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

Trial court properly found that not-yet-received contingency fee contracts were to be used to calculate the husband's future income as they ran the risk of having zero or negative value, gave the attorney no property interest in the client's funds, and thus, they were not property under Ky. Rev. Stat. Ann. § 403.190 . Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

25.Marital Debt.

All debts incurred during marriage are not necessarily marital debts; consideration should be given to the nature of the debts based upon the receipt of benefits and the extent of participation. Bodie v. Bodie, 590 S.W.2d 895, 1979 Ky. App. LEXIS 492 (Ky. Ct. App. 1979).

While there is a presumption that all property acquired during marriage is marital, there is no similar presumption as to debts. O'Neill v. O'Neill, 600 S.W.2d 493, 1980 Ky. App. LEXIS 332 (Ky. Ct. App. 1980).

Trial court did not abuse its discretion in finding that only the husband was obligated to repay his father a $500,000 loan made during the marriage as the husband did not show definitely that the wife was aware of the extent and nature of the alleged loans. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

Pursuant to KRS 403.190(1), the trial court properly found a husband responsible for the outstanding indebtedness on the marital residence, as the husband ceased making the payments because he became unemployed after he was fired for failing a mandatory drug test administered by his employer, and the husband failed to appear at the hearing, and offered no evidence to explain his loss of employment, or to demonstrate what efforts he had made to find a new job and thus prevent the foreclosure of the mortgage. Lawson v. Lawson, 228 S.W.3d 18, 2007 Ky. App. LEXIS 183 (Ky. Ct. App. 2007).

26.Real Estate.

Real estate owned by a husband prior to marriage which increased in value over the course of the marriage was not marital property to be divided upon divorce where the increase in value was caused solely by economic growth. Goderwis v. Goderwis, 780 S.W.2d 39, 1989 Ky. LEXIS 98 ( Ky. 1989 ).

Real estate purchased by a husband but conveyed to a corporation prior to marriage, which was subsequently purchased by husband and wife from the corporation with title in the name of the husband, was marital property to be divided proportionally between husband and wife upon divorce. Goderwis v. Goderwis, 780 S.W.2d 39, 1989 Ky. LEXIS 98 ( Ky. 1989 ).

The trial court erroneously held that real estate was a husband’s nonmarital property where, despite husband’s claims that he purchased the property before marriage, the husband offered no evidence to rebut the proof offered by the wife which showed the property was conveyed to the husband six years after marriage. Marcum v. Marcum, 779 S.W.2d 209, 1989 Ky. LEXIS 96 ( Ky. 1989 ).

Trial court did not err in failing to consider the effect of the tax liens on the marital home when awarding the marital home to the wife as KRS 403.190(1) did not require that the marital property be divided equally, but in just proportions; although the residence was substantially offset by the mortgages and by the property taxes also assigned to the wife, she was awarded a significant interest in the property above the encumbrances, and the trial court separately ordered that the husband would be responsible for the delinquent income taxes. Polley v. Allen, 132 S.W.3d 223, 2004 Ky. App. LEXIS 83 (Ky. Ct. App. 2004).

Family court erred as a matter of law in assigning one spouse a non-marital interest in the marital residence because the family court's findings of fact were not supported by substantial evidence of record and were clearly erroneous as the spouse's testimony, alone, was not sufficient to meet the spouse's burden of proof that the spouse had a non-marital interest in the marital residence. McVicker v. McVicker, 461 S.W.3d 404, 2015 Ky. App. LEXIS 15 (Ky. Ct. App. 2015).

27.— Title.

Whether title is held individually or in some form of co-ownership, such as joint tenancy, tenancy in common, or tenancy by the entirety is not determinative in classifying property as marital or nonmarital, KRS 403.190(3). Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Even if KRS 403.190(3) is construed to create a marital presumption, the interrelationship between KRS 403.190(3) and KRS 403.190(2)(a) indicates that the presumption can be rebutted by evidence of a gift intended for one spouse regardless of the documentary title; this is consistent with both Calloway and Angel and the source of funds rule underpinning both statutory and case law to determine marital and nonmarital interests in property. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

28.— Out of State.

A Kentucky court with proper in personam jurisdiction over a party to a divorce may compel conveyance, by one of the parties, of real estate in another state, to the other party. Becker v. Becker, 576 S.W.2d 255, 1979 Ky. App. LEXIS 378 (Ky. Ct. App. 1979).

29.— Equity.

Equity is the equity in the property at the time of distribution, either at the date of the decree of dissolution, or, if the property has been sold prior thereto and the proceeds may be properly traced, then the date of the sale is the time at which the equity is computed. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

The contribution of either spouse of other than marital or nonmarital funds shall not be considered in the increase of equity of the property; thus, the contribution of one spouse as homemaker shall be considered only in affixing the percentage of the marital property to be assigned to that spouse. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

In a bifurcated divorce, the amount the husband paid to reduce the mortgage on the marital residence after the divorce decree and up to the final hearing was properly added to his equity. Once the parties are divorced, the payments which reduce the indebtedness on the mortgage increase the husband’s equity in the residence, not the marital equity. Thus, it would be unfair not to offset the mortgage reduction paid by the husband. Drake v. Drake, 809 S.W.2d 710, 1991 Ky. App. LEXIS 7 (Ky. Ct. App. 1991).

When determining a wife's equitable interest in marital real property awarded to a husband, it was an abuse of discretion to deduct hypothetical costs of sale because (1) no such costs were incurred, and (2) the husband had no imminent plans to sell the property. Farrar v. Farrar, 2014 Ky. App. LEXIS 184 (Ky. Ct. App. Dec. 12, 2014), review denied, ordered not published, 2015 Ky. LEXIS 1908 (Ky. Sept. 24, 2015).

30.— Marital Contribution.

Marital contribution is the amount expended after marriage from other than nonmarital funds in the reduction of mortgage principal, plus the value of all improvements made to the property after marriage from other than nonmarital funds. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

An “increase in value” of the husband’s life estate cannot be equated with the actual cost of improvements to the life estate; a court trying to determine the increase in value should subtract the fair market value of the property at the time of the dissolution without marital improvement from the fair market value of the property at the time of the dissolution with marital improvements. Jones v. Jones, 245 S.W.3d 815, 2008 Ky. App. LEXIS 24 (Ky. Ct. App. 2008).

31.— Nonmarital Contribution.

Nonmarital contribution is the equity in the property at the time of marriage, plus any amount expended after marriage by either spouse from traceable nonmarital funds in the reduction of mortgage principal, and/or the value of improvements made to the property from such nonmarital funds. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

State Supreme Court reversed the trial court’s judgment crediting a husband with only the amount of nonmarital property the husband contributed when the husband and wife purchased the marital residence because the record showed that the husband contributed additional nonmarital assets when the parties refinanced their mortgage, but the court held that the husband was entitled to credit for nonmarital assets the husband contributed that reduced the parties’ debt, but not nonmarital assets the husband paid as closing costs. Schoenbachler v. Minyard, 110 S.W.3d 776, 2003 Ky. LEXIS 82 ( Ky. 2003 ).

Trial court did not err in assigning the marital home to the wife where the court was not convinced that the husband had traced his non-marital contributions into the residence; the trial court’s finding was supported by substantial evidence as the husband deeded a one-half (1/2) interest in the property to the wife, and the deed stated that the husband had acquired the home after the parties’ marriage. Polley v. Allen, 132 S.W.3d 223, 2004 Ky. App. LEXIS 83 (Ky. Ct. App. 2004).

Where the husband and wife purchased a farm, the wife’s father gave each of them $3,996 for the down payment, and the husband failed to show that a gift from his father should be nonmarital property, the trial court could not be said to have erred in awarding 60 percent of the farm’s equity to the wife and 40 percent to the husband. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

Because the Family Court found that a husband and wife both made nonmarital contributions to the purchase of a vacation villa, the court was required to award each their respective nonmarital interests in the property. Fehr v. Fehr, 284 S.W.3d 149, 2008 Ky. App. LEXIS 306 (Ky. Ct. App. 2008).

Family court in a dissolution action did not err in its restoration of the wife's non-marital interest in equity of the marital residence because the court properly multiplied the percentages of both the husband's and the wife's non-marital contributions to the total contributions (the down payment and the improvements) against the equity in the property to calculate the parties' respective non-marital shares. Smith v. Smith, 503 S.W.3d 178, 2016 Ky. App. LEXIS 181 (Ky. Ct. App. 2016).

32.— Total Contribution.

Total contribution is the sum of nonmarital and marital contributions. Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981).

The formula utilized in Brandenburg v. Brandenburg, 617 S.W.2d 871, 1981 Ky. App. LEXIS 254 (Ky. Ct. App. 1981), provides a useful, though not exclusive, tool in the pursuit of a just and equitable solution with regard to apportionment and the disposition of real property. Rupley v. Rupley, 776 S.W.2d 849, 1989 Ky. App. LEXIS 101 (Ky. Ct. App. 1989).

33.—Marital Residence.

Where the home was paid for, it was the only home that the child had known, and the husband was given approximately $8,200 more value in the division of the marital estate, the trial court did not err by allowing the wife to reside in the marital residence until the emancipation of their child, even though the wife remarried and continued to reside in the home. Wood v. Wood, 720 S.W.2d 934, 1986 Ky. App. LEXIS 1458 (Ky. Ct. App. 1986).

Although the record established that a house jointly held by parties was purchased from husband’s own account, just as wife could not argue that her contribution to the marriage and the enterprise was not accurately reflected in the ownership of assets, husband was likewise precluded from arguing that the house was his sole and separate property, since in consideration of wife’s reciprocal release under antenuptial agreement, husband renounced and released unto wife any property which she might own at the termination of the marriage. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

Husband and wife were each entitled to a one-half share in the home because the equity in the home was marital property; by repeatedly promising the wife that the house was “half hers” and executing a deed reflecting that agreement, the husband transferred his nonmarital interest in the home to the marital estate as a gift. Barber v. Bradley, 505 S.W.3d 749, 2016 Ky. LEXIS 632 ( Ky. 2016 ).

During marriage either spouse may “gift” his or her nonmarital funds to the parties' marital estate including by expending those funds on the marital home with express representations to the other spouse that the home will be their joint, marital property. Barber v. Bradley, 505 S.W.3d 749, 2016 Ky. LEXIS 632 ( Ky. 2016 ).

Circuit court’s equal division of the equity in the marital residence when the husband was the wage earner and the wife mostly was the homemaker during the 39-year marriage was not in error because the court utilized the property valuation administrator’s value, then subtracted the outstanding mortgage, and calculated the parties’ equity in the marital residence. Paoli v. Paoli, 2021 Ky. App. LEXIS 83 (Ky. Ct. App. July 16, 2021).

34.Reimbursement for Mortgage Payments.

The cost of paying taxes, providing insurance and payment of interest on the loan can properly be imposed upon a husband as a part of his responsibility to provide a home for his children, but to the extent that his mortgage payments reduce the principal of the indebtedness he is entitled to reimbursement; thus the judgment should be amended to provide that from the proceeds of the sale of the house the balance, if any, of the mortgage debt plus the costs of sale shall be paid, and the husband shall then be reimbursed for any amount that the mortgage payments made by him since the entry of the decree have reduced the principal balance of the indebtedness and the remaining proceeds shall be equally divided between the parties. Gibson v. Gibson, 597 S.W.2d 622, 1980 Ky. App. LEXIS 308 (Ky. Ct. App. 1980).

When, in a dissolution of marriage action, the trial court determined the parties’ respective interests in real property they had held as tenants by the entirety, and the husband had previously mortgaged his interest in the property without the wife’s consent, when that mortgagee sought to foreclose, it could only foreclose on the husband’s interest in the property, as determined by the dissolution of marriage court, even though it was not a party to the dissolution of marriage action. Bank One, NA v. Vaught, 2003 Ky. App. LEXIS 176 (Ky. Ct. App. July 18, 2003).

35.Workers’ Compensation Award.

A lump-sum award of workers’ compensation received by one of the spouses during the pendency of a divorce action between them is marital property within the meaning of subsection (2) of this section. Johnson v. Johnson, 638 S.W.2d 703, 1982 Ky. LEXIS 293 ( Ky. 1982 ).

In enacting its no-fault divorce statute, the general assembly specifically excluded certain kinds of property from the category of “marital property” and workers’ compensation benefits, in the form of either a settlement or ongoing benefits, were not excluded; as such, there was a legislative intent not to exclude such benefits. Accordingly, certificates of deposit purchased by husband with proceeds of workers’ compensation award were marital property. Quiggins v. Quiggins, 637 S.W.2d 666, 1982 Ky. App. LEXIS 236 (Ky. Ct. App. 1982).

Workers’ compensation award payments that are received, or weekly benefits that have actually accrued but have not yet been paid, as of the date of the dissolution of the marriage are to be included as marital property, just as earned income, but payments which accrue and are paid after the dissolution of the marriage are not part of the marital property. Mosley v. Mosley, 682 S.W.2d 462, 1985 Ky. App. LEXIS 486 (Ky. Ct. App. 1985).

Ongoing workers’ compensation benefits, which had not been received prior to the dissolution of the marriage, were not marital property subject to division. Mosley v. Mosley, 682 S.W.2d 462, 1985 Ky. App. LEXIS 486 (Ky. Ct. App. 1985).

Where the wife did nothing to contribute to the acquisition of the award to husband for injuries sustained in the course of his employment, there was very little property to be divided other than the award, the duration of the marriage was only 19 months, and the parties had been separated the last six of those, the husband was totally disabled, while the wife was able-bodied, and there were no children of the marriage, any disposition of the award to the wife above $7,500 that was voluntarily paid to her would be an abuse of discretion. Reeves v. Reeves, 753 S.W.2d 301, 1988 Ky. App. LEXIS 63 (Ky. Ct. App. 1988).

Portion of workers’ compensation lump-sum settlement which represented the years that husband was not married to wife was nonmarital and any personalty which was purchased with that money was likewise nonmarital provided it could be properly traced; however, the portion of the award which represented those years that the parties were married was marital. Jessee v. Jessee, 883 S.W.2d 507, 1994 Ky. App. LEXIS 106 (Ky. Ct. App. 1994).

36.Personal Injury Award.

Money recovered by a spouse in a law suit as damages for pain and suffering is not marital property. Weakley v. Weakley, 731 S.W.2d 243, 1987 Ky. LEXIS 220 ( Ky. 1987 ).

To the extent that a personal injury award for loss of earnings and permanent impairment of ability to earn money is applicable to the years while the marriage existed, it is marital property; to the extent that the award can be prorated to the remaining years of life expectancy following the dissolution of the marriage, it is nonmarital. Weakley v. Weakley, 731 S.W.2d 243, 1987 Ky. LEXIS 220 ( Ky. 1987 ).

When a personal injury occurs before the marriage, the entire compensation received therefor is nonmarital, regardless of when the judgment or settlement is obtained or whether the recovery is for the loss of wages, replacement of earning capacity, or pain and suffering. Weakley v. Weakley, 731 S.W.2d 243, 1987 Ky. LEXIS 220 ( Ky. 1987 ).

In a divorce action, the husband provided sufficient evidence to show that the settlement proceeds from a medical malpractice action were intended to compensate him for his pain and suffering for having undergone the unnecessary medical procedures and thus, that the proceeds were nonmarital property. Bond v. Bond, 2021 Ky. App. LEXIS 103 (Ky. Ct. App. Oct. 1, 2021).

37.Procedure.

Under subsection (2) of CR 1, as complemented and made applicable to divorce proceedings by KRS 403.130(1), statutory procedural requirements prevail over inconsistent procedures in the Civil Rules in all statutory proceedings; accordingly, the failure of parties in a divorce action to request the trial court for more definite findings, which ordinarily would prevent the Supreme Court from giving relief under CR 52.04, was not fatal to an appeal challenging the perfunctory manner in which the trial judge made his findings where the trial judge did not comply with the procedural requirements of this section and did not make specific findings of fact as required by CR 52.01. Hollon v. Hollon, 623 S.W.2d 898, 1981 Ky. LEXIS 292 ( Ky. 1981 ), overruled, Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

A decree of dissolution of the marriage could be entered prior to the determination of disposition of the property. Putnam v. Fanning, 495 S.W.2d 175, 1973 Ky. LEXIS 391 ( Ky. 1973 ).

38.Factors Considered.

In a divorce action where both parties have contributed to the estate, the chancellor should ascertain the proportion contributed by each, sell the property, and distribute the proceeds in accordance with these proportions. Hanks v. Hanks, 282 Ky. 236 , 138 S.W.2d 362, 1940 Ky. LEXIS 155 ( Ky. 1940 ) (decided under prior law).

Where spouses had each maintained separate businesses and accumulated considerable property without maintaining their interests separately, the court could not reconstruct all of the mixed transactions of the parties but must divide their property on a consideration of the record of their lives and business relations as a whole. Wilcox v. Wilcox, 266 S.W.2d 96, 1954 Ky. LEXIS 778 ( Ky. 1954 ) (decided under prior law).

Where the wife, who was the breadwinner while the husband was obtaining an education to enable him to earn a substantial income, managed the household, attended to the needs of the children, and continued to produce income, the trial court should have considered the entire team effort which resulted in the accumulation of property and it was error to consider only the dollars earned respectively by the husband and wife in marshaling the property acquired during marriage. Beggs v. Beggs, 479 S.W.2d 598, 1972 Ky. LEXIS 300 ( Ky. 1972 ) (decided under prior law).

Where an absolute divorce was granted to the wife, in arriving at a property division the chancellor should have first arrived at the net values of the respective estates of the parties at the time of their marriage, made the proper property restorations, and then determined the value of the estate ascribable to the joint efforts of the parties, including their investments of money and services in business, and household work which should have been divided between the husband and wife on an equitable basis. Dahlenburg v. Dahlenburg, 479 S.W.2d 606, 1972 Ky. LEXIS 302 ( Ky. 1972 ) (decided under prior law).

Where a residence is to be sold so that there can be restoration of the funds used for its purchase, there is no legal impediment to postponing the sale during the minority of the child. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ) (decided under prior law).

Court of appeals erred in a marital dissolution action in holding that the husband was entitled to 100 percent of his IRA because the court of appeals, like the trial court, did not specifically consider all of the KRS 403.190(1) factors, including the value of the property set apart to each spouse, the duration of the marriage, and the economic circumstances of each spouse. Ford v. Perkins, 382 S.W.3d 821, 2012 Ky. LEXIS 163 ( Ky. 2012 ).

Trial court erred under KRS 403.190(1) in determining that a grantor retained annuity trust (GRAT) was “property” of a marriage subject to division upon dissolution of the marriage; the real estate and partnership interests were validly removed from the marital estate. Ensor v. Ensor, 431 S.W.3d 462, 2013 Ky. App. LEXIS 112 (Ky. Ct. App. 2013).

Mechanism the trial court devised to divide the couple's marital property, a random draw, was an abuse of discretion because it did not take into account the factors identified by the statute; a random draw did not differentiate between the value of the property set apart to each spouse. Barber v. Bradley, 505 S.W.3d 749, 2016 Ky. LEXIS 632 ( Ky. 2016 ).

Trial court’s assignment of both vehicles to the father constituted an abuse of discretion regarding the division of the parties’ limited marital property; the mother’s parents’ decision to provide her with the use of another vehicle was not a relevant factor in the division of marital property, and while one of the vehicle might be of limited utility to her while the children are young, it might become more useful as the children get older, plus the equity in each vehicle was roughly the same. Keith v. Keith, 556 S.W.3d 10, 2018 Ky. App. LEXIS 204 (Ky. Ct. App. 2018).

39.Evidence.

Where the evidence showed that the husband’s property acquired prior to marriage had been used to purchase the family residence while wife had acted as homemaker, it was sufficient to award less than one third to wife. Johnson v. Johnson, 564 S.W.2d 221, 1978 Ky. App. LEXIS 498 (Ky. Ct. App. 1978).

Where $5,000 received by a husband from an insurance policy on his father’s life was put in his farming business and used for operating costs, the trial court’s finding that this $5,000 could be traced to cash and personal property held by the husband was not supported by the record. Brunson v. Brunson, 569 S.W.2d 173, 1978 Ky. App. LEXIS 554 (Ky. Ct. App. 1978).

Factors relevant to determining whether particular property is a gift include the source of the money used to purchase the item, the intent of the donor, and the status of the marriage at the time of the transfer; however, the intent of the purported donor is considered the primary factor in determining whether a transfer of property is a gift. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Calloway rule is not different from the Angel rule since both attempt to effectuate the intent of the donor; in determining the intent of the donor, a court should look at all the circumstances such as statements of the donor, statements of the spouses, the tax treatment of the gift, whether the gift is jointly titled, the relationship of the parties, and the intended use of the property. Hunter v. Hunter, 127 S.W.3d 656, 2003 Ky. App. LEXIS 168 (Ky. Ct. App. 2003).

Family court abused its discretion and committed reversible error when it did not allow the testimony of the attorney who drafted trusts when determining whether there was an inter vivos gift from a husband to a wife of the trust corpus because the exclusion deprived the husband the right to call a third fact witness where the only previous fact witnesses were the parties with opposing views of his donative intent; the exclusion had the potential to affect the outcome of the lawsuit. Lewis v. Fulkerson, 555 S.W.3d 432, 2017 Ky. App. LEXIS 556 (Ky. Ct. App. 2017).

40.Presumptions.

This section does not mention presumptions in the division of marital property and such presumptions should not be indulged in at all; accordingly, where the court of appeals stated a presumption of equal distribution, case would be reversed and remanded with directions to apply statutory standards. Herron v. Herron, 573 S.W.2d 342, 1978 Ky. LEXIS 409 ( Ky. 1978 ).

Subsection (3) of this section provides that all property acquired by either spouse during marriage is presumed to be marital property unless there is proof that the property was acquired pursuant to an exception listed in subsection (2) of this section. Marcum v. Marcum, 779 S.W.2d 209, 1989 Ky. LEXIS 96 ( Ky. 1989 ).

41.Divorce from Bed and Board.

Upon a divorce from bed and board, the status of the parties as to all previously acquired property remained unchanged. Stevens v. Stevens, 313 Ky. 294 , 231 S.W.2d 49, 1950 Ky. LEXIS 877 ( Ky. 1950 ) (decided under prior law).

A divorce from bed and board did not affect the status of property previously acquired and the court erred in refusing to restore property as an incident of an absolute divorce on the basis that the determination of the parties’ property rights were finally determined in their earlier divorce from bed and board. Gentry v. Gentry, 318 S.W.2d 870, 1958 Ky. LEXIS 155 ( Ky. 1958 ) (decided under prior law).

By a judgment declaring that the parties were divorced from bed and board, the marriage was not dissolved to the extent that property earned through joint effort must be allocated, and laws regarding restoration did not apply to such divorce. Bailey v. Bailey, 474 S.W.2d 389, 1971 Ky. LEXIS 114 ( Ky. 1971 ) (decided under prior law).

42.Form of Award.

Where the chancellor found that the wife was entitled to 15 percent of a business and the husband entitled to the balance, the wife should have been awarded the value of her interest rather than the minority interest in the business. Goldstein v. Goldstein, 377 S.W.2d 52, 1964 Ky. LEXIS 473 ( Ky. 1964 ) (decided under prior law).

43.Amount of Maintenance.

A wife was entitled to maintenance in such sum that, when added to her other source of income, would be sufficient to provide for her in the manner to which these parties have become accustomed. Newman v. Newman, 597 S.W.2d 137, 1980 Ky. LEXIS 202 ( Ky. 1980 ).

In the fixing of maintenance the trial court must take into consideration the assignment of property made pursuant to the provisions of this section and the factors delineated in KRS 403.200 ; as a matter of fact, there must be a division of property before considering the amount of maintenance. Newman v. Newman, 597 S.W.2d 137, 1980 Ky. LEXIS 202 ( Ky. 1980 ).

This section clearly requires that in distributing marital property, the judge must separate nonmarital property and divide marital property in “just proportions” after considering all factors; accordingly, where a divorce judgment described the property to be divided and its recipient but only valued a portion of the property, the maintenance award, which is partly dependant on the amount of property owned by the needy spouse, would be vacated until the trial judge complied with the property distribution statute. Hollon v. Hollon, 623 S.W.2d 898, 1981 Ky. LEXIS 292 ( Ky. 1981 ), overruled, Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

It was proper to consider the level of income attained by a doctor after finishing medical school and residency, which was considerably higher than his income during the marriage, as the figure was relevant both to his ability to pay support and as an indicia of the standard of living established during the marriage by attainment of the professional degree. Lovett v. Lovett, 688 S.W.2d 329, 1985 Ky. LEXIS 218 ( Ky. 1985 ).

Where a husband made monthly payments to the wife that were more than the husband was ordered to pay for temporary maintenance, it was error to find that the husband owed a maintenance arrearage. There was no statutory requirement that temporary maintenance be paid out of non-marital property and the husband used a portion of what was later determined to be the wife’s share of monthly consulting payments to satisfy the husband’s temporary maintenance obligation to the wife. Horvath v. Horvath, 250 S.W.3d 316, 2008 Ky. LEXIS 103 ( Ky. 2008 ).

44.Settlement Agreement.

The parties’ agreement to sell the wife’s car during their second marriage on the condition that the husband replace it with the same make and model did not annul the first divorce decree which provided that the husband was to transfer a new car to the wife, where the wife brought the car with her into the second marriage, and there was a like-kind exchange which in no way could be construed as an attempt to annul the first divorce judgment. Gray v. Gray, 745 S.W.2d 657, 1988 Ky. App. LEXIS 9 (Ky. Ct. App. 1988).

With regard to the disposition of property market value, investment and earning value, and net asset value are all legitimate considerations in the general case when evaluating a corporation or its stock, and the weight to be accorded each element depends on the circumstances of the individual case. Rupley v. Rupley, 776 S.W.2d 849, 1989 Ky. App. LEXIS 101 (Ky. Ct. App. 1989).

A husband and wife may define by agreement their rights in each other’s property, regardless of any rights which would otherwise have been excluded or conferred by this section; such agreements, provided they are otherwise valid contracts, are entitled to enforcement upon dissolution of the marriage. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

Family court abused its discretion in modifying the Qualified Domestic Relations Order (QDRO) in reassigning the husband’s nonmarital property to the wife, KRS 403.190(1); because the parties agreed that a certain amount was specifically the husband’s nonmarital property, it could not now alter the terms of the agreement. Willis v. Willis, 362 S.W.3d 372, 2012 Ky. App. LEXIS 47 (Ky. Ct. App. 2012).

45.Antenuptial Agreement.

It is recognized that the possibility of dissolution is significant enough that the parties to a marriage might prudently consider it in the context of an antenuptial agreement at the time the marriage is entered into. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

An antenuptial agreement, freely and voluntarily executed by the parties after full disclosure of their respective assets and marital property rights, and with the intent of providing for disposition of property in the event of divorce as well as in the event of death, does not violate public policy and to the extent of any inconsistency with this holding, prior cases are overruled. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

Although antenuptial agreements providing for the disposition of property on divorce are permitted, it is possible that a particular agreement may be invalid or even void when measured by appropriate standards such as: (1) was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) is the agreement unconscionable? (3) have the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair and unreasonable? Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

Antenuptial agreements must be examined at the time enforcement is sought; an antenuptial agreement will not be enforced if facts and circumstances have changed so as to make its enforcement unconscionable. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

Antenuptial agreements in contemplation of divorce may apply only to disposition of property and maintenance. Questions of child support, child custody and visitation are not subject to such agreements; and unless the parties otherwise agree, nonmarital property retains its character as such. Edwardson v. Edwardson, 798 S.W.2d 941, 1990 Ky. LEXIS 124 ( Ky. 1990 ).

Trial courts have been vested with broad discretion to modify or invalidate antenuptial agreements, and parties and their counsel should be admonished to refrain from entering into agreements lacking mutuality and without a rational basis. Edwardson v. Edwardson, 798 S.W.2d 941, 1990 Ky. LEXIS 124 ( Ky. 1990 ).

Where wife, upon death of husband, had income in excess of $6,300 per month and estate valued at $1 million and there was evidence that the parties maintained separate bank accounts throughout the marriage, prenuptial agreement providing for a $1,000 settlement of any claims for dower or maintenance was not unconscionable at the time of enforcement of the agreement. Lawson v. Loid, 896 S.W.2d 1, 1995 Ky. LEXIS 24 ( Ky. 1995 ).

46.— Mutuality Requirement.

Mutuality requirement was satisfied in prenuptial agreement providing for a $1,000 settlement of any claims for dower or maintenance because wife had some income at the time of execution and sum, by 1952 standards, was not inequitable from what the husband could have expected to receive from her estate if she died soon after the agreement. Lawson v. Loid, 896 S.W.2d 1, 1995 Ky. LEXIS 24 ( Ky. 1995 ).

47.— Full Disclosure of Assets.

The burden of proof on the issue of full disclosure of assets at the time the agreement was signed in a prenuptial contract rests on the party relying on such agreement. Lawson v. Loid, 896 S.W.2d 1, 1995 Ky. LEXIS 24 ( Ky. 1995 ).

48.Waiver of Error.

The findings of fact did not address the manner in which the trial court arrived at its determination that the $35,000.00 down payment on a house constituted marital property. The court apparently did not make a factual finding regarding the $35,000.00 and because the parties did not request the court to do so, the error was waived. Underwood v. Underwood, 836 S.W.2d 439, 1992 Ky. App. LEXIS 164 (Ky. Ct. App. 1992), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

49.Division in Particular Cases.

Husband was entitled to recover diamond engagement ring given to wife prior to marriage upon judgment of divorce. Walter v. Moore, 198 Ky. 744 , 249 S.W. 1041, 1923 Ky. LEXIS 550 ( Ky. 1923 ) (decided under prior law).

Where husband contributed to purchase of property by farming and wife by teaching school, which she did during greater portion of her married life, she was entitled to one-half (1/2) of farm and one-half (1/2) of crops harvested in last year of marriage. Bell v. Bell, 299 Ky. 7 , 184 S.W.2d 124, 1944 Ky. LEXIS 1007 ( Ky. 1944 ) (decided under prior law).

Where, during married life, husband and wife had accumulated a substantial estate, which was held jointly until husband deeded his interest to wife shortly before final separation, judgment allowing husband sum of money equal to one-half (1/2) interest in property was proper, in view of evidence that husband had contributed equally with wife in accumulating the estate, as against wife’s contention that she had furnished all the money with which the property was acquired. Potts v. Potts, 299 Ky. 216 , 184 S.W.2d 987, 1945 Ky. LEXIS 398 ( Ky. 1945 ) (decided under prior law).

Where evidence showed husband and wife had, from the inception of marriage, treated their property accumulations as joint or partnership property, wife was entitled to one-half (1/2) of all property accumulated during marriage, upon being granted a divorce. Tutt v. Tutt, 304 Ky. 480 , 200 S.W.2d 924, 1947 Ky. LEXIS 651 ( Ky. 1947 ) (decided under prior law).

Where wife purchased, in the name of her daughter, a house with funds which she claimed were earned by her in the operation of a boardinghouse and husband contended that the funds came from his earnings which he turned over to the wife and further claimed that the boardinghouse was operated jointly by him and his wife, the chancellor did not err in a suit for divorce and for setting aside the deed by ordering that the parties share equally in the house. Smithson v. Smithson, 309 Ky. 107 , 216 S.W.2d 911, 1949 Ky. LEXIS 646 ( Ky. 1949 ) (decided under prior law).

Where wife had some property at the time of the marriage and husband did not, wife handled all financial dealings of the parties and took title to all of their property in her name individually, and the earnings of the parties during the marriage were substantially equal, the court in granting the husband a divorce should require the wife to disclose all property in her name from which the value of her property at the time of the marriage should be restored to her and the balance divided equitably between the parties. Hannan v. Hannan, 256 S.W.2d 485, 1953 Ky. LEXIS 738 ( Ky. 1953 ) (decided under prior law).

Where the parties purchased a motel using funds in the husband’s name to pay down payment, the wife ran the motel alone while the husband was in military service, she substantially improved the property by her own labor, and the motel was sold at substantial profit, the chancellor did not err in finding that the wife’s contribution was equal to the husband’s and dividing the remaining proceeds from the sale equally between the parties upon their divorce. Cook v. Cook, 373 S.W.2d 432, 1963 Ky. LEXIS 163 ( Ky. 1963 ) (decided under prior law).

Absent any indication that the family court considered factors other than the statutory criteria in KRS 403.190(1) in its division of the marital estate or that it abused its discretion in any other manner, there was no error in awarding a husband substantially less of the marital estate. Hempel v. Hempel, 380 S.W.3d 549, 2012 Ky. App. LEXIS 184 (Ky. Ct. App. 2012).

Absent any indication that the family court considered factors other than the statutory criteria in KRS 403.190(1) in its division of the marital estate or that it abused its discretion in any other manner, there was no error in awarding a husband substantially less of the marital estate. Hempel v. Hempel, 380 S.W.3d 549, 2012 Ky. App. LEXIS 184 (Ky. Ct. App. 2012).

In this dissolution action, the trial court erred in determining the estate planning tool was “property” of the marriage subject to division upon dissolution because the real estate and partnership interests were validly removed from the marital estate. Execution of the warranty deeds transferring the husband and wife’s interests to the partnership and the subsequent assignment of the husband’s partnership interest to the tool constituted the irrevocable transfer to the trust of a present interest–the partnership interests–for a valid trust purpose: transferring assets to the parties’ children as securely and with as limited tax liability as possible. Ensor v. Ensor, 2013 Ky. App. LEXIS 61 (Ky. Ct. App. Apr. 12, 2013), op. withdrawn, sub. op., 431 S.W.3d 462, 2013 Ky. App. LEXIS 112 (Ky. Ct. App. 2013).

Family court abused its discretion in awarding one spouse a majority percentage of a marital investment account based solely on the future benefit of the parties' adult disabled child because the funds from this account were not used for their child's benefit; rather, their child's expenses were covered by the child's own disability benefits and a portion of the spouse's income. McVicker v. McVicker, 461 S.W.3d 404, 2015 Ky. App. LEXIS 15 (Ky. Ct. App. 2015).

Family court abused its discretion in failing to consider the value of the parties' respective marital vehicles and properly dividing this marital property because one spouse provided documentary evidence to establish the fair market value of the spouse's vehicle as well as the outstanding balance of the loan for that vehicle. On remand, the family court was to consider the value of the parties' respective vehicles in dividing the marital assets. McVicker v. McVicker, 461 S.W.3d 404, 2015 Ky. App. LEXIS 15 (Ky. Ct. App. 2015).

50.Valuation.

Valuation of an oral surgery practice in a divorce case was not erroneous under KRS 403.190(1) because Kentucky had not adopted one method of valuation, and the trial court’s valuation based upon a 2003 evaluation was well-reasoned and based upon ample evidence; there was no abuse of discretion by failing to adopt the business valuation performed closest to the date of the decree. A wife was in sole control of the practice, she failed to disclose relevant transfers and dissipations, and there was unusually low income generated by the practice in the following year. Gaskill v. Robbins, 361 S.W.3d 337, 2012 Ky. App. LEXIS 22 (Ky. Ct. App. 2012).

Wife failed to show that the trial court committed clear error in using the husband’s valuation of property, using retail value, rather than the wife’s valuation, using resale value. Smith v. Smith, 450 S.W.3d 729, 2014 Ky. App. LEXIS 83 (Ky. Ct. App. 2014).

Cited in:

Sharp v. Sharp, 491 S.W.2d 639, 1973 Ky. LEXIS 576 ( Ky. 1973 ); Purdom v. Purdom, 498 S.W.2d 131, 1973 Ky. LEXIS 287 ( Ky. 1973 ); Brooks v. Burkeen, 549 S.W.2d 91, 1977 Ky. LEXIS 407 ( Ky. 1977 ); Hoffman v. Hoffman, 553 S.W.2d 474, 1977 Ky. App. LEXIS 746 (Ky. Ct. App. 1977); Bruton v. Bruton, 569 S.W.2d 182, 1978 Ky. App. LEXIS 556 (Ky. Ct. App. 1978); Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983); Murphy v. Bowen, 756 S.W.2d 149, 1988 Ky. App. LEXIS 122 (Ky. Ct. App. 1988); Waggoner v. Waggoner, 846 S.W.2d 704, 1992 Ky. LEXIS 189 ( Ky. 1992 ); Williams v. Farmers Stockyard, Inc., 297 S.W.3d 586, 2009 Ky. App. LEXIS 126 (Ky. Ct. App. 2009); Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 )Sadler v. Van Buskirk, — S.W.3d —, 2013 Ky. App. LEXIS 159 (Ky. Ct. App. 2013); Stone v. Dubarry, 513 S.W.3d 325, 2016 Ky. LEXIS 557 ( Ky. 2016 ).

Opinions of Attorney General.

In a suit to dispose of real property in a divorce action an appraisal under KRS 426.520 is not necessary, since the property is merely being restored and divided as between the husband and wife. OAG 76-609 .

Research References and Practice Aids

Kentucky Bench & Bar.

Bagby, Estate Planning and Antenuptial Agreements, Volume 54, No. 1, Winter 1990 Ky. Bench & B. 12.

Mazanec, A Degree or License as Marital Property: The Inman Case, Vol. 46, No. 1, January, 1982, Ky. Bench and Bar 18.

Potter and Ewing, Apportioning Marital and NonMarital Interests in a Single Asset, Vol. 47, No. 2, April, 1983, Ky. Bench & Bar 14.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Gilbert and Wise, Apportioning Military Pensions Under The Uniformed Services Former Spouses Protection Act and Kentucky Law, Volume 55, No. 1, Winter 1991 Ky. Bench & B. 26.

Copeland, Injured Spouses in Dying Marriages, Vol. 57, No. 2, Spring 1993 Ky. Bench & B. 12.

Kentucky Law Journal.

Kentucky Law Survey, Wilson, Domestic Relations, 65 Ky. L.J. 383 (1976-77).

Comments, That Was No Wife, That Was My Lady: Is Marvin v. Marvin Appropriate for Kentucky? 66 Ky. L.J. 707 (1977-1978).

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky? 66 Ky. L.J. 889 (1977-1978).

Notes, Restoration of Property: Barrier to Interspousal Gifts, 67 Ky. L.J. 173 (1978-1979).

Kentucky Law Survey, Harris and Donoho, Domestic Relations, 68 Ky. L.J. 753 (1979-1980).

Kentucky Law Survey, Crome, Domestic Relations, 69 Ky. L.J. 581 (1980-81).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Notes, Antenuptial Contracts and Divorce in Kentucky: A Better Approach, 72 Ky. L.J. 867 (1983-84).

Graham, Using Formulas to Separate Marital and Nonmarital Property: A Policy Oriented Approach to the Division of Appreciated Property Upon Divorce, 73 Ky. L.J. 41 (1984-85).

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Goff, Title Doesn’t Matter, Does It?: An Analysis of Kentucky’s Property Disposition Law and Its Treatment of Transmutation, 89 Ky. L.J. 255 (2000-2001).

Article: Accounting for Time: A Relative-Interest Approach to the Division of Equity in Hybrid-Property Homes Upon Divorce, 100 Ky. L.J. 585 (2011/2012).

Northern Kentucky Law Review.

Notes, Intangible Educational and Professional Attainments as Divisible Marital Property, 7 N. Ky. L. Rev. 145 (1980).

Notes, Workers' Compensation ? Marital Property ? Johnson v. Johnson, 10 N. Ky. L. Rev. 531 (1983).

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Findings of Fact and Conclusions of Law — No Settlement Agreement, Form 253.27.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Declaration of Invalidity of Marriage (Mental Incapacity), Form 252.01.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Legal Separation, Form 253.04.

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.7, 24.8, 24.9, 24.12, 24.14, 24.17, 24.18, 24.20, 24.21; 1991 Supp., §§ 24.16, 24.17.

Petrilli, Kentucky Family Law, Dissolution (Divorce) and Maintenance (Alimony), § 20.1.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, § 21.4.

Petrilli, Kentucky Family Law, Maintenance, § 25.11.

Petrilli, Kentucky Family Law, 1991 Supp., Personal Rights and Privileges Resulting from Marriage, § 14.2.

Petrilli, Kentucky Family Law, Property Rights, § 14.3.

Petrilli, Kentucky Family Law, Separation Agreements, § 19.19.

Petrilli, Kentucky Family Law, Support of the Family, § 16.8.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.5.

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.

History. Enact. Acts 1972, ch. 182, § 10.

NOTES TO DECISIONS

1.In General.

The primary thrust of maintenance is towards economic stability. Compensation is allowed to the claiming spouse for loss of marital support and maintenance which will allow him or her to become self-sufficient. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

Based upon an appellate court's decision to reverse a family court's assignment of non-marital interests and division of marital property, the family court's decision on maintenance had to be vacated. On remand, after the court had properly assigned and divided the marital and non-marital (if any) property, the court was then to determine whether a requesting spouse was entitled to an award of maintenance considering the statutory factors. McVicker v. McVicker, 461 S.W.3d 404, 2015 Ky. App. LEXIS 15 (Ky. Ct. App. 2015).

The primary thrust of maintenance is towards economic stability. Compensation is allowed to the claiming spouse for loss of marital support and maintenance which will allow him or her to become self-sufficient. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

2.Prerequisites to Grant of Maintenance.

The trial court may grant maintenance to a spouse only if it finds that the spouse seeking maintenance lacks sufficient property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment. Mosley v. Mosley, 682 S.W.2d 462, 1985 Ky. App. LEXIS 486 (Ky. Ct. App. 1985).

In this dissolution action, because the instant court was reversing and remanding this case to the trial court for correction of the property division and equalization awards, it must also necessarily reverse and remand on the issue of maintenance because the determination of entitlement to maintenance could not be made until a proper division of marital property was completed Ensor v. Ensor, 2013 Ky. App. LEXIS 61 (Ky. Ct. App. Apr. 12, 2013), op. withdrawn, sub. op., 431 S.W.3d 462, 2013 Ky. App. LEXIS 112 (Ky. Ct. App. 2013).

3.Discretion of Court.

Awarding of maintenance is a matter within the discretion of the trial court. Browning v. Browning, 551 S.W.2d 823, 1977 Ky. App. LEXIS 707 (Ky. Ct. App. 1977).

The trial court did not err in including the value of the goodwill of medical corporation in which husband held a one-third interest and in adopting a capitalization of excess earnings method in so doing when it divided the marital assets and awarded maintenance. Clark v. Clark, 782 S.W.2d 56, 1990 Ky. App. LEXIS 3 (Ky. Ct. App. 1990).

Trial court was within its discretion in ordering maintenance retroactive to the date the wife’s motion was made. Higbee v. Higbee, 89 S.W.3d 409, 2002 Ky. LEXIS 222 ( Ky. 2002 ).

4.—Abuse.

Where evidence indicated wife would not have sufficient means to support herself after sale of the jointly acquired property and did not have qualifications to seek employment, court abused its discretion in not awarding maintenance. Priddy v. Priddy, 504 S.W.2d 711, 1974 Ky. LEXIS 831 ( Ky. 1974 ).

Where at the time of divorce, husband and wife had been married 35 years, the wife was 52, award of four years maintenance during which time she would complete her education as a teacher was an abuse of discretion in light of fact teaching positions were hard to acquire and she could not work for more than 10 or 15 years at best. Frost v. Frost, 581 S.W.2d 582, 1979 Ky. App. LEXIS 408 (Ky. Ct. App. 1979).

Where the wife in a divorce action was 53 years old, needed a tumor operation, and earned $11,400 annually as a teacher and her husband was 58 years old, vice president of a power company and earning $51,000 annually, it was an abuse of discretion to award the wife maintenance of $250 per month for three years only, since a person who can only eke out a living should not be required to have a standard of living below a person who is unable to work at all; accordingly, the maintenance should be for life or until remarriage. Combs v. Combs, 622 S.W.2d 679, 1981 Ky. App. LEXIS 295 (Ky. Ct. App. 1981).

In view of the fact that the trial court itself found the former wife’s reasonable living expenses to be twice her income, and found that the former husband had excess income with which to pay child support and/or maintenance, the trial court abused its discretion when it did not award maintenance to the wife. Atwood v. Atwood, 643 S.W.2d 263, 1982 Ky. App. LEXIS 274 (Ky. Ct. App. 1982).

The failure to award spouse a sum sufficient to allow him to meet his needs without requiring that he depend on the generosity of family and friends was plainly an abuse of discretion. Leitsch v. Leitsch, 839 S.W.2d 287, 1992 Ky. App. LEXIS 209 (Ky. Ct. App. 1992).

It was abuse of discretion for a trial court to award a 46-year-old wife maintenance beyond retirement age to the time of her death, remarriage, or cohabitation, particularly since at that time she will receive half of her ex-husband’s pension - as he will receive half of hers - thus making their incomes more equal. Weldon v. Weldon, 957 S.W.2d 283, 1997 Ky. App. LEXIS 99 (Ky. Ct. App. 1997).

Trial court abused its discretion in improperly imputing income to a wife for which there was no evidentiary basis and in limiting the duration of a maintenance award to five (5) years. Gripshover v. Gripshover, 2005 Ky. App. LEXIS 181 (Ky. Ct. App. Aug. 19, 2005), aff'd in part and rev'd in part, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

Because the duration of a maintenance award could no more be based on the college expenses of an emancipated child than could the monthly amount, the trial court erred only in adding four additional years of maintenance, based solely on anticipated college expenses. Bailey v. Bailey, 246 S.W.3d 895, 2007 Ky. App. LEXIS 351 (Ky. Ct. App. 2007).

Trial court’s open-ended maintenance award to a wife was an abuse of discretion because (1) the wife had a college degree, prior work experience, had expressed an interest in re-entering the workforce, and could, with additional training, work outside the home and obtain financial independence from the husband, so, to award open-ended maintenance thwarted the goal of severing all ties between the parties, as such an award provided no incentive for the wife to timely obtain gainful employment, clearly an achievable goal, and, (2) should the wife simply choose to maintain the status quo by not seeking employment, circumstances would not sufficiently change to justify modification or termination of maintenance. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

Circuit court abused its discretion as to the amount of maintenance that it awarded to a wife when the wife had not worked in years and was unable to work due to physical and mental health issues because the court failed to consider whether the husband had the ability to pay the wife more maintenance. Further, based on the disparity between the wife’s monthly income and reasonable expenses, the disparity between the parties’ incomes, and the wife’s inability to provide for the wife’s expenses, the wife should have been awarded more maintenance. Naramore v. Naramore, 611 S.W.3d 281, 2020 Ky. App. LEXIS 104 (Ky. Ct. App. 2020).

5.—Award Proper.

Where there was evidence that during the five years prior to the divorce judgment husband’s average earnings were $27,000 and the wife did not have sufficient estate of her own to meet the test expressed in this section, the trial court’s award of $200 a month alimony to the wife would not be disturbed. Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

Where evidence showed wife made $200 per month and her basic needs cost $450 per month, while husband’s income was ample, award of maintenance of $75.00 per month was proper. Johnson v. Johnson, 564 S.W.2d 221, 1978 Ky. App. LEXIS 498 (Ky. Ct. App. 1978).

An award of $650 per month as maintenance and child support against a husband with a net income of $1,118 per month was not clearly erroneous and would not be reversed. Callahan v. Callahan, 579 S.W.2d 385, 1979 Ky. App. LEXIS 390 (Ky. Ct. App. 1979).

The trial court did not abuse its discretion in ordering the husband to pay maintenance to the wife for 12 years given the length of the parties’ marriage, the wife’s lack of employment history and her need for education and training to be able to support herself. Leveridge v. Leveridge, 997 S.W.2d 1, 1999 Ky. LEXIS 36 ( Ky. 1999 ).

Trial court did not abuse its discretion in awarding a wife rehabilitative maintenance, despite her waiver of maintenance in an antenuptial agreement. The waiver provision was unconscionable because the disparity in the parties’ incomes grew exponentially during the marriage, largely because the husband concentrated on his career while the wife stayed home to care for the children. Lane v. Lane, 202 S.W.3d 577, 2006 Ky. LEXIS 232 ( Ky. 2006 ).

A wife, who had multiple sclerosis and received disability benefits of $804 per month, was properly awarded $250 per month in maintenance as she received $107,130.20 in marital property which included $80,000 which the husband was ordered to pay in a lump sum within six (6) months of the judgment, and she was assigned a comparatively small amount of the marital debt. The Family Court properly considered the factors set forth in KRS 403.200(2). Brenzel v. Brenzel, 244 S.W.3d 121, 2008 Ky. App. LEXIS 2 (Ky. Ct. App. 2008).

Trial court did not err when it set spousal maintenance at $2,300 per month and reduced this amount of monthly maintenance when pension benefits commenced; the evaluation of the factors under KRS 403.200 was appropriate, there was no abuse of discretion, and a former wife’s concurrence with the trial court’s statement of facts lent credibility to the trial court’s assessment of the proper amount of maintenance. Moreover, the amount awarded was not unreasonable, and the duration of the maintenance was not arbitrary. Age v. Age, 340 S.W.3d 88, 2011 Ky. App. LEXIS 23 (Ky. Ct. App. 2011).

Trial court’s maintenance award to a wife was not an abuse of discretion because (1) substantial evidence supported the trial court’s finding that the wife’s inherited oil and gas lease interest was nominal at best, and (2) the trial court found the wife had a college degree and was able to work and desired to do so, but recognized that the wife voluntarily left employment to care for the parties’ minor children and, as a result, the wife’s prior work experience was stale, so the wife needed time to obtain gainful employment, and the record showed the trial court properly considered the relevant statutory factors outlined in KRS 403.200(2). Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

Trial court neither abused its discretion nor committed clear error by finding that the wife was entitled to a maintenance award where although she exited the 32-year marriage with substantial assets and a moderate income, the discrepancy in the spouses' incomes and lifestyles post-marriage was great and constituted an inability to provide for her reasonable needs. Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

Trial court did not abuse its discretion in not cutting off the wife's maintenance at age 67 where the award had a definite cut-off at 10 years and was for a modest amount of money. Grasch v. Grasch, 2016 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 913 (Ky. Ct. App. Sept. 23, 2016).

Family court did not abuse its discretion in awarding maintenance to a wife, or in the amount or duration of the maintenance award, because the court determined that the wife was entitled to a maintenance award, based upon the wife's reasonable living expenses and imputed minimum wage earning potential, and then went on to consider the statutory factors, including the husband's admitted income, the husband's ability to meet the husband's own reasonable needs, the length of the marriage, and the parties' standard of living in the marriage. Smith v. Smith, 503 S.W.3d 178, 2016 Ky. App. LEXIS 181 (Ky. Ct. App. 2016).

Family court did not abuse its discretion when it refused to set aside a separation agreement as the amount of maintenance was not unconscionable because the wife had not worked outside the home for over twenty years and much of the wife's education and training was outdated and stale. Moreover, the husband knew the husband would be paying an increasing amount of maintenance for yeas and signed the agreement knowing that the husband would soon be retiring from the military and seeking civilian employment as a commercial airline pilot. Mays v. Mays, 541 S.W.3d 516, 2018 Ky. App. LEXIS 87 (Ky. Ct. App. 2018).

Trial court’s decision regarding the award of maintenance was not arbitrary, unreasonable, unfair, or unsupported by legal principles because the trial court was not required to delineate every statutory factor, but only to consider the factors in its decision; the trial court rightly considered the ex-wife’s independent assets, whether as an income source or through principal liquidation, in determining her ability to support herself; the trial court addressed the wife’s inability to immediately return to the job market at her previous level; and the trial court did not abuse its discretion by not considering the ex-husband’s income as an independent factor for increasing the directed maintenance or computing the wife’s reasonable needs. Normandin v. Normandin, 634 S.W.3d 589, 2020 Ky. LEXIS 456 ( Ky. 2020 ).

Declining to award maintenance was not an abuse of discretion where the trial court had considered the financial situation of each party, the parties lived in a modest house with a sizeable amount of debt associated with it, there was no testimony regarding a lavish lifestyle or an extravagant standard of living that would have warranted maintenance, the parties did not have much money in the bank and both had always worked, and assigning responsibility for the mortgage payments to the wife until the marital home was sold was in lieu of maintenance and because the wife had the greater income. Little v. Little, 2021 Ky. App. Unpub. LEXIS 189 (Ky. Ct. App. Mar. 12, 2021).

7.Factors Considered.

Family court did not abuse its discretion in refusing to impute income to the wife for the purpose of maintenance, as the evidence showed that the wife had been absent from the workforce for more than 16 years at the agreement of the parties and the wife was forced to suspend her search when the health of the parties' daughter deteriorated. Lambe v. Weber, 2014 Ky. App. LEXIS 177 (Ky. Ct. App. Nov. 14, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1053 (Ky. Ct. App. Nov. 14, 2014).

In the fixing of maintenance the trial court must take into consideration the assignment of property made pursuant to the provisions of KRS 403.190 and the factors delineated in this section; as a matter of fact, there must be a division of property before considering the amount of maintenance. Newman v. Newman, 597 S.W.2d 137, 1980 Ky. LEXIS 202 ( Ky. 1980 ).

Even if there were no substantial accumulation of marital property, the expenditure by one spouse of nonmarital property for the benefit of the marriage is a factor which might be considered in awarding maintenance. Angel v. Angel, 562 S.W.2d 661, 1978 Ky. App. LEXIS 473 (Ky. Ct. App. 1978).

The trier of fact must look to the amount of marital property awarded to the spouse seeking maintenance, and the spouse’s ability to support herself through appropriate employment; and a spouse’s ability to seek appropriate employment may be affected by the demands of an infant child, or a child who needs constant care or supervision. Richie v. Richie, 596 S.W.2d 32, 1980 Ky. App. LEXIS 301 (Ky. Ct. App. 1980).

Where the record in a dissolution of marriage action showed that the trial court clearly considered factors such as the wife’s present ability to earn a livelihood, her desire to expand her education, the husband’s ability to contribute to her support, as well as the existence of fault in causing the marriage to be terminated, the trial court did not abuse its discretion in ordering the husband to pay a maintenance award of $150.00 per month over a period of 18 months. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

When the evidence shows that a divorced wife cannot meet her monthly living expenses, then she is justified in expending whatever sums she must from her marital settlement, and her failure or inability to invest the marital settlement money at the highest rate of interest cannot be used by her former husband to deprive her of the maintenance to which she is entitled under this section. Atwood v. Atwood, 643 S.W.2d 263, 1982 Ky. App. LEXIS 274 (Ky. Ct. App. 1982).

The fact that husband was “heavily indebted” did not necessarily absolve him from the duty to pay maintenance. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

The fact that marriage was for the short duration of two years was certainly a factor to be considered in determining an appropriate amount of maintenance; the court could also consider wife’s prospects for becoming self-supporting. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

Where the trial court made no specific finding as to whether wife’s property was sufficient to meet her needs or whether she was able “through appropriate employment” to support herself and where the wife lacked a high school education, had no formal skills, and had no job, it was difficult to comprehend how she could support herself at all, let alone in any fashion resembling the standard of living she enjoyed during the marriage and trial court erred in denying maintenance. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

If the seeking party fails to satisfy the conditions of either subdivisions (1)(a) or (1)(b) of this section, maintenance need not be granted; thus, if the trial court finds that the party seeking maintenance can support himself through appropriate employment, there is no requirement for the court to make a finding as to whether or not that party lacks sufficient property to meet his needs. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

If income from a wife’s nonmarital property, and her proportion of marital property would provide for her reasonable needs, then maintenance should not be awarded. Owens v. Owens, 672 S.W.2d 67, 1984 Ky. App. LEXIS 517 (Ky. Ct. App. 1984).

The fact that a wife allegedly refused to obtain employment is not to be used in determining the division of marital property, but is a factor in determining whether maintenance should be awarded. Owens v. Owens, 672 S.W.2d 67, 1984 Ky. App. LEXIS 517 (Ky. Ct. App. 1984).

Where the trial court did not award the wife maintenance, but there was no finding of fact as to the income-producing value of the wife’s inherited property, nor the income-producing value of the property awarded to her in the division of the marital assets, and the trial court made no finding as to the wife’s ability to support herself through appropriate employment, nor the standard of living established during the marriage, the trial court failed to follow the statutory guidelines set forth in this section in denying the wife an award of maintenance. Wood v. Wood, 720 S.W.2d 934, 1986 Ky. App. LEXIS 1458 (Ky. Ct. App. 1986).

In order for an award of maintenance to be proper, there must first be a finding that the spouse seeking maintenance lacks sufficient property, including marital property, to provide for his or her reasonable needs, and that the spouse is unable to support himself or herself through appropriate employment according to the standard of living established during the marriage. Drake v. Drake, 721 S.W.2d 728, 1986 Ky. App. LEXIS 1480 (Ky. Ct. App. 1986).

If income from a spouse’s non marital property, combined with his or her proportion of marital property, would provide for his or her reasonable needs, then maintenance should not be awarded. Lampton v. Lampton, 721 S.W.2d 736, 1986 Ky. App. LEXIS 1496 (Ky. Ct. App. 1986).

Where the wife’s income, including the period prior to disposition of the parties’ marital property, was more than adequate to provide for her reasonable needs, an award of even temporary maintenance was inappropriate and should not have been made. Lampton v. Lampton, 721 S.W.2d 736, 1986 Ky. App. LEXIS 1496 (Ky. Ct. App. 1986).

One major factor the court may consider in determining the maintenance award is the total estate of the paying spouse, regardless of its source, since the ability of the paying spouse to support himself or herself arises from all the property the paying spouse has. Roberts v. Roberts, 744 S.W.2d 433, 1988 Ky. App. LEXIS 19 (Ky. Ct. App. 1988).

Maintenance may not be awarded until account has first been taken of the assignment and division of property, and the exact terms of the maintenance award depend, inter alia, upon the decision of the court as to the ownership of property; upon a determination that the spouse seeking maintenance qualifies for such an award, the determination of amount and duration is governed by subsection (2) of this section which requires consideration of all the financial resources of the parties. Low v. Low, 777 S.W.2d 936, 1989 Ky. LEXIS 83 ( Ky. 1989 ).

In awarding maintenance, it is especially acceptable for the trial court to consider the impact of the divorce on the nonprofessional’s standard of living and award an appropriate amount that the professional spouse can afford. Clark v. Clark, 782 S.W.2d 56, 1990 Ky. App. LEXIS 3 (Ky. Ct. App. 1990).

With regard to the question of maintenance, it must first be established that spouse lacks sufficient property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment. The court certainly must also consider the ability of the spouse from whom maintenance is sought to meet his or her own needs while at the same time meeting the needs of the spouse seeking maintenance. Dotson v. Dotson, 864 S.W.2d 900, 1993 Ky. LEXIS 145 ( Ky. 1993 ).

Where wife had no job at the time of the marriage dissolution, little employment history or marketable skills, virtually no liquid assets, was not presently able to support herself in any manner approaching that enjoyed during the marriage, postponed developing any career during the marriage to prioritize the needs of the children, and needed further instruction to be certified in her field and sought maintenance for only the period of time necessary to complete this instruction, the trial court erred in failing to award her a sum in maintenance sufficient to sustain herself while completing her degree. Beckner v. Beckner, 903 S.W.2d 528, 1995 Ky. App. LEXIS 120 (Ky. Ct. App. 1995).

Whether spousal support is appropriate is based on the spouse’s ability to support herself in the standard of living established during marriage and is at the trial court’s discretion and may be overturned only for abuse of discretion or clear error. It was not abuse of discretion for a trial court to award maintenance to an ex-spouse earning $28,000, holding a master’s degree, and possessing $55,000 in marital property and cash in order to maintain the lifestyle she enjoyed with her husband on their joint $109,000 salary. Weldon v. Weldon, 957 S.W.2d 283, 1997 Ky. App. LEXIS 99 (Ky. Ct. App. 1997).

Common sense dictates that a court consider the parties’ net income when determining whether or not the spouse seeking maintenance under KRS 403.200 will be able to meet his or her needs, as well as the payor spouse’s ability to continue meeting his or her own needs. Powell v. Powell, 107 S.W.3d 222, 2003 Ky. LEXIS 144 ( Ky. 2003 ).

Family court erred in including the wife's proportional share of the children's expenses in the wife's expenses in calculated the maintenance amount0 Lambe v. Weber, 2014 Ky. App. LEXIS 177 (Nov. 14, 2014).

In a divorce matter, a mother was not awarded maintenance because she was well educated, earned close to $ 100,000 in the past, and was now capable of earning $ 60,000 per year. The trial court also found that the father was capable of earning $85,000 per year and the parties' four children lived primarily with him. Bootes v. Bootes, 470 S.W.3d 351, 2015 Ky. App. LEXIS 126 (Ky. Ct. App. 2015).

Trial court did not abuse its discretion when it awarded maintenance because it considered the wife’s financial resources, which were not limited to her marital property only, her education level and inability to return to work, the standard of living and duration of the marriage, the wife’s physical and emotional condition, and the husband’s ability to pay maintenance; it was not required to analyze the husband’s income, only his ability to provide for himself and make the payments ordered. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Trial court did not abuse its discretion in considering a wife’s nonmarital financial resources in making its maintenance award because it was proper for the trial court to consider all financial resources available to the wife when calculating her maintenance award, including all assets she inherited as well as the marital assets she would receive in the divorce. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Remand on the issue of spousal maintenance was necessary because the trial court failed to consider all of the wife’s financial resources in making an award. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

Because the trial court’s order on maintenance failed to consider all of the wife’s financial resources and erroneously concluded that the husband had the ability to support himself while paying the wife $1,000 per month in maintenance, remand was required. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

8.— Ability to Support Self.

This section requires that the conditions of both subsections (1)(a) and (1)(b) be met in order for an award of maintenance to be appropriate, and where a wife was a steadily employed, if modestly paid, teacher the circumstances described in subsection (1)(b) clearly did not exist; thus the order of the trial court that the husband pay $100 a month in maintenance must be vacated. Inman v. Inman, 578 S.W.2d 266, 1979 Ky. App. LEXIS 382 (Ky. Ct. App. 1979).

Where specialist in neurological surgery testified that wife’s work as registered nurse would be limited, in that she could not work in a capacity where she would have to lift patients or objects or bend her back, it was not clearly erroneous for trial court to find that wife was unable to work as a psychiatric nurse and thus unable to support herself. Leveck v. Leveck, 614 S.W.2d 710, 1981 Ky. App. LEXIS 238 (Ky. Ct. App. 1981).

Where the trial court failed to make the statutorily required finding on the question of the wife’s ability to support herself through appropriate employment under subdivision (1)(b) of this section, the issue of maintenance was remanded to the trial court. Cochran v. Cochran, 746 S.W.2d 568, 1988 Ky. App. LEXIS 46 (Ky. Ct. App. 1988), overruled in part, Rumpel v. Rumpel, 438 S.W.3d 354, 2014 Ky. LEXIS 331 ( Ky. 2014 ).

The statutory scheme is designed to allow one to become self-supporting. While the trend is to sever all ties between divorcing parties where one is unable due to health problems to be self-supporting, the section is appropriately utilized to prevent the “drastic change” in the standard of living. Leitsch v. Leitsch, 839 S.W.2d 287, 1992 Ky. App. LEXIS 209 (Ky. Ct. App. 1992).

The trial court erred in awarding maintenance to the wife because the trial court failed to consider the ability of the husband to meet his own needs while paying the required maintenance, as required by KRS 403.200(2)(f). Lawson v. Lawson, 228 S.W.3d 18, 2007 Ky. App. LEXIS 183 (Ky. Ct. App. 2007).

The trial court abused its discretion in failing to consider the factors in KRS 403.200(2) where the trial court improperly relied on charity as a basis upon which to reduce an ex-wife’s permanent monthly maintenance to $100, and the award of such a modest sum ensured that she would be required to depend indefinitely on the generosity of others to meet her basic need for shelter. Clark v. Clark, 236 S.W.3d 616, 2007 Ky. App. LEXIS 343 (Ky. Ct. App. 2007).

As the trial court 1) found that a former husband was not able to meet his reasonable needs independently with the marital property apportioned to him; 2) found that he was unlikely to be able to substantially increase his income in the near future; and 3) considered the nature of the former wife’s financial resources, the standard of living established by the parties during the marriage, the duration of the marriage, and the ability of the husband to meet his own reasonable needs, it did not abuse its discretion as to the amount or the six-month duration of the maintenance award. Stipp v. St. Charles, 291 S.W.3d 720, 2009 Ky. App. LEXIS 96 (Ky. Ct. App. 2009).

Trial court did not err under KRS 403.200(1) in awarding a wife $2,500 per month in maintenance for 12 months because she lacked sufficient financial resources to provide for her reasonable needs was presently unable to support herself through appropriate employment. Maclean v. Middleton, 419 S.W.3d 755, 2014 Ky. App. LEXIS 3 (Ky. Ct. App. 2014).

9.— Level of Income after Schooling.

It was proper to consider the level of income attained by a doctor after finishing medical school and residency, which was considerably higher than his income during the marriage, as the figure was relevant both to his ability to pay support and as an indicia of the standard of living established during the marriage by attainment of the professional degree. Lovett v. Lovett, 688 S.W.2d 329, 1985 Ky. LEXIS 218 ( Ky. 1985 ).

10.—Change in Circumstances.

Not every instance of cohabitation by a maintenance recipient constitutes a change in circumstances making continued maintenance unconscionable. Each case stands on its own and the elements to consider are: 1) duration, 2) economic benefit, 3) intent of parties, 4) nature of living arrangements, 5) nature of financial arrangements and 6) likelihood of a continued relationship. Combs v. Combs, 787 S.W.2d 260, 1990 Ky. LEXIS 15 ( Ky. 1990 ).

Family court properly denied a former wife’s motion to modify or terminate her maintenance obligation to her former husband because the court applied the correct standard, as mandated by the parties’ property settlement agreement, of changed circumstances and unconscionability, and the former wife’s assertion that the former husband would not currently be entitled to maintenance did not render his continued receipt of maintenance unconscionable where the incomes of the parties remained disparate and the former husband’s income was contingent upon his progressive medical conditions remaining stable. Holland v. Herzfeld, 610 S.W.3d 360, 2020 Ky. App. LEXIS 109 (Ky. Ct. App. 2020).

11.Fault.

Although fault is not to be considered in determining whether a spouse is entitled to maintenance under this section, it may be considered insofar as the amount of maintenance is concerned. Chapman v. Chapman, 498 S.W.2d 134, 1973 Ky. LEXIS 288 ( Ky. 1973 ).

Subsection (2) of this section outlines certain relevant factors to be considered by the court in deciding whether to award maintenance; this list, however, is not exhaustive and has been supplemented through case interpretations to include additional factors such as fault. The clear purpose is to preclude one whose misconduct led to the marital breakdown from continuing to retain the financial benefits of the union. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

For the determination of whether a claiming spouse had the right to maintenance, fault has no bearing; the considerations as laid down in subdivision (1)(a) of this section are economic, primarily whether at the termination of the marriage he or she is in a position to account for his/her own reasonable needs. Once the right to maintenance is established, the amount is to be determined; in this aspect, and this aspect alone, fault may be considered. Moss v. Moss, 639 S.W.2d 370, 1982 Ky. App. LEXIS 245 (Ky. Ct. App. 1982).

Once a determination has been made that a party is entitled to maintenance, the court may consider fault of the parties as a factor in determining the proper amount of maintenance. Atwood v. Atwood, 643 S.W.2d 263, 1982 Ky. App. LEXIS 274 (Ky. Ct. App. 1982).

Assuming marriage was “rocky and stormy” and further assuming wife was the cause, neither fact has any bearing on the determination to be made under subsection (1) of this section since fault can be considered, along with the other factors in subsection (2), only in determining the amount of maintenance. Carter v. Carter, 656 S.W.2d 257, 1983 Ky. App. LEXIS 309 (Ky. Ct. App. 1983).

This section does not include “fault” anywhere as a factor to be considered when arriving at a just amount of maintenance. Platt v. Platt, 728 S.W.2d 542, 1987 Ky. App. LEXIS 473 (Ky. Ct. App. 1987).

Trial court did not discuss fault when considering the amount and duration of maintenance, but this did not constitute an abuse of discretion, as case law did not mandate that a trial court consider fault. Roper v. Roper, 594 S.W.3d 211, 2019 Ky. App. LEXIS 219 (Ky. Ct. App. 2019).

12.Issue Preclusion.

Where divorce action was prosecuted to conclusion by husband who had tricked wife into believing he would drop the suit, it was error for the trial court in setting aside the judgment to preclude wife from litigating the issue of alimony. Cottrell v. Cottrell, 502 S.W.2d 80, 1973 Ky. LEXIS 69 ( Ky. 1973 ).

13.Findings.

There appears to be no requirement under the statute for the trial court to make a finding as to the wife’s reasonable needs if it finds that she is able to support herself through appropriate employment. Graham v. Graham, 595 S.W.2d 720, 1980 Ky. App. LEXIS 303 (Ky. Ct. App. 1980).

Where the trial judge merely stated in his findings of fact that the wife was presently unable to work and that the husband was working, he did not adequately comply with the requirements of this section with respect to maintenance awards. Hollon v. Hollon, 623 S.W.2d 898, 1981 Ky. LEXIS 292 ( Ky. 1981 ), overruled, Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

The result in the trial court did not force wife unreasonably to jeopardize her marital estate nor did it mandate the return she must obtain. It simply concluded that a particular rate was reasonably obtainable. The findings below were based on competent evidence, and were not clearly erroneous; the Court of Appeals was not at liberty to substitute its findings of fact for those of the trial court. Perrine v. Christine, 833 S.W.2d 825, 1992 Ky. LEXIS 73 ( Ky. 1992 ).

Where the Court of Appeals concluded that the trial court had abused its discretion in hypothesizing that wife would immediately liquidate her oil interests, and suffer the attendant tax consequences and the Court of Appeals “believe[d] the better alternative” would be to preserve wife’s tax advantages by delaying liquidation, in this regard, the Court of Appeals usurped the discretion which properly rested in the trial court. The Circuit Court order did not require wife to liquidate, it merely concluded that she possessed sufficient property to provide for her reasonable needs. That decision was made responsibly, and on the basis of findings of fact which were not clearly erroneous. Perrine v. Christine, 833 S.W.2d 825, 1992 Ky. LEXIS 73 ( Ky. 1992 ).

Because the family court made the findings required by KRS 403.200(1), (2) and 403.220 , it properly awarded maintenance and attorney’s fees to the wife; as the husband had exclusive possession and use of the primary marital asset during the proceedings, retroactive judgment interest at 12 percent was proper under KRS 360.040. 2005 Ky. App. LEXIS 182 .

Because a family court made insufficient findings to support the duration of a wife’s maintenance award, it did not comport with KRS 403.200(2). Massey v. Massey, 220 S.W.3d 700, 2006 Ky. App. LEXIS 276 (Ky. Ct. App. 2006).

Wife’s maintenance award was remanded because the trial court did not make required findings, as (1) no findings supported awarding the wife 65% of the proceeds of the sale of the parties’ marital home, and (2) it was unclear if the court’s consideration of the wife’s reasonable needs included caring for the parties’ adult son and the son’s family and a cell phone plan for those two adults and the wife’s mother. Wattenberger v. Wattenberger, 577 S.W.3d 786, 2019 Ky. App. LEXIS 79 (Ky. Ct. App. 2019).

14.Jurisdiction.

Where wife was not within jurisdiction of the court, it had no authority to deny her maintenance. Gaines v. Gaines, 566 S.W.2d 814, 1978 Ky. App. LEXIS 538 (Ky. Ct. App. 1978).

Where the state trial court had little or no justification for its award of “maintenance” except its desire to punish the husband for his alleged infidelity, such award to his ex-wife was in fact a division of property and was neither maintenance under this section nor nondischargeable under 11 USCS § 523(a)(5) and the award was therefore dischargeable in bankruptcy. Sorah v. Sorah (In re Sorah), 203 B.R. 620, 1996 Bankr. LEXIS 1646 (Bankr. E.D. Ky. 1996 ).

15.Railroad Retirement Act Benefits.

Following the opinion of Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S. Ct. 802, 59 L. Ed. 2d 1, 1979 U.S. LEXIS 56 (1979), benefits under the Railroad Retirement Act of 1937 cannot be considered in awarding maintenance under this section if the marriage terminates before benefits begin. Frost v. Frost, 581 S.W.2d 582, 1979 Ky. App. LEXIS 408 (Ky. Ct. App. 1979).

16.Pension or Retirement Funds.

Even though a military pension, vested or nonvested, cannot be considered as divisible property, it may be used as a basis for paying maintenance if the equity of the total economic circumstances of the parties, including the spouse’s lack of property and ability to support herself, require that some amount of maintenance be awarded. Light v. Light, 599 S.W.2d 476, 1980 Ky. App. LEXIS 323 (Ky. Ct. App. 1980).

A pension is a form of deferred compensation which is earned during each day of month of military service or other work, and it cannot be considered as being earned on the day it matures; the value of a pension, if any, should therefore be marital property for the portion accrued during coverture, and this fact is true for any pension, whether nonvested or noncontributory. Light v. Light, 599 S.W.2d 476, 1980 Ky. App. LEXIS 323 (Ky. Ct. App. 1980).

Where the trial judge considered the factor of military retirement pay in dividing marital property, where wife received over 50% of the marital property, and her earnings were greater than husband’s exclusive of his retire- ment pay, and where the trial court specifically found that both parties were able to support themselves, the trial judge did not abuse his discretion in refusing to award maintenance or to grant wife a larger share of the total assets accumulated during the marriage. Russell v. Russell, 605 S.W.2d 33, 1980 Ky. App. LEXIS 363 (Ky. Ct. App. 1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3158, 69 L. Ed. 2d 1004, 1981 U.S. LEXIS 2764 (U.S. 1981).

The exclusion of military retirement pay from divisible marital property in no way precludes a trial court from considering such an asset when determining an appropriate amount for maintenance and support; if maintenance is appropriate, the income will be available to satisfy a reasonable award, especially if there are few other assets or resources to be divided. Russell v. Russell, 605 S.W.2d 33, 1980 Ky. App. LEXIS 363 (Ky. Ct. App. 1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3158, 69 L. Ed. 2d 1004, 1981 U.S. LEXIS 2764 (U.S. 1981).

Pursuant to 10 USCS § 1408(a)(4), amounts waived in order to receive disability compensation, or VA benefits received in lieu of military retirement pay, are specifically excluded from division as marital property; however, if an inequity arises in an individual case, the trial court can resolve the problem by making an appropriate award of spousal support and/or marital property. Davis v. Davis, 777 S.W.2d 230, 1989 Ky. LEXIS 78 ( Ky. 1989 ).

Family court properly denied a former wife’s motion to modify or terminate her maintenance obligation to her former husband because the court applied the correct standard, as mandated by the parties’ property settlement agreement, of changed circumstances and unconscionability, and the former wife’s assertion that the former husband would not currently be entitled to maintenance did not render his continued receipt of maintenance unconscionable where the incomes of the parties remained disparate and the former husband’s income was contingent upon his progressive medical conditions remaining stable. Holland v. Herzfeld, 610 S.W.3d 360, 2020 Ky. App. LEXIS 109 (Ky. Ct. App. 2020).

17.Professional Degree.

Award of $10,000 in lump-sum maintenance was both fair and authorized by this section where wife had supported husband while he obtained professional degree, where her salary would not allow her to enjoy anything approaching the standard of living which she enjoyed as wife, where the court took into account husband’s indebtedness for educational loans, the fact that wife had remarried and was thus not entitled to periodic maintenance, and the fact that, while husband could not have matriculated without the wife’s aid and assistance, her contributions would not greatly inure to his direct financial enhancement and where the court ordered husband to pay child support, all of child’s medical and dental expenses, and $1,500 of wife’s attorney’s fees. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

A spouse who has worked and financially contributed to the other spouse’s acquisition of a professional degree should not automatically receive a monetary award based on a prescribed formula; the dissolution of marriage statutes simply do not authorize trial courts to make such an award. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

In cases where a divorcing couple may have begun to enjoy the fruits of increased earnings resulting from a professional spouse’s degree, a court can, under this section, properly consider the impact of a divorce on the nonprofessional spouse’s standard of living and, if the court finds that the nonprofessional spouse will not be able to maintain a standard of living reasonably similar to the one enjoyed during the marriage and that the professional spouse can afford it, an award of maintenance to supplement the nonprofessional spouse’s income would be appropriate; this would be especially true in those instances where there is little or no marital property to divide since through an award of maintenance, the court will be justifiably permitting the nonprofessional spouse to recoup most of his or her investment in the other spouse’s professional degree. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

Although a professional degree, a license to practice, or an acquired specialty may not be property in the literal sense, they are assets of the marriage which must be considered when contemplating the standard of living established during the marriage. Lovett v. Lovett, 688 S.W.2d 329, 1985 Ky. LEXIS 218 ( Ky. 1985 ).

The trial court should not automatically grant a monetary award simply because one spouse contributed to the other spouse obtaining a professional degree, but these efforts should be considered and compensated, especially if the spouses’ incomes or salaries are uneven. Clark v. Clark, 782 S.W.2d 56, 1990 Ky. App. LEXIS 3 (Ky. Ct. App. 1990).

Where wife sacrificed and supported husband so he could obtain medical degree, after divorce, where the husband had not yet realized “future advantages” or benefits from his advanced education and the wife was capable of supporting herself, the facts did not support an award of maintenance to the wife. Schmitz v. Schmitz, 801 S.W.2d 333, 1990 Ky. App. LEXIS 131 (Ky. Ct. App. 1990).

18.Standard of Living.

Where ex-wife was employed, but at a bare subsistence level, court did not err in awarding maintenance which would bring her closer to the standard of living established during the marriage. Casper v. Casper, 510 S.W.2d 253, 1974 Ky. LEXIS 545 ( Ky. 1974 ).

A wife was entitled to maintenance in such sum that, when added to her other source of income, would be sufficient to provide for her in the manner to which these parties have become accustomed. Newman v. Newman, 597 S.W.2d 137, 1980 Ky. LEXIS 202 ( Ky. 1980 ).

An award of maintenance is appropriate when the spouse seeking it is unable to support him or herself according to the standard of living established during the marriage. McGowan v. McGowan, 663 S.W.2d 219, 1983 Ky. App. LEXIS 383 (Ky. Ct. App. 1983).

An “established” standard of living is not necessarily one which was “enjoyed” over a protracted period of time, but is the product of many factors. Lovett v. Lovett, 688 S.W.2d 329, 1985 Ky. LEXIS 218 ( Ky. 1985 ).

The trial court’s award of maintenance was upheld, where there was substantial evidence in the record to support the court’s finding that the wife’s salary as a beautician, even when combined with an equal proportion of the marital assets, was not sufficient to provide for her in the manner to which the parties had become accustomed. Drake v. Drake, 721 S.W.2d 728, 1986 Ky. App. LEXIS 1480 (Ky. Ct. App. 1986).

Where wife was disabled and could not work and where the assets she received in conjunction with her disability payments were not sufficient to maintain the conservative standard of living which she and her husband enjoyed during their marriage of almost twenty-nine years, the trial court correctly concluded that wife was entitled to receive maintenance. Russell v. Russell, 878 S.W.2d 24, 1994 Ky. App. LEXIS 24 (Ky. Ct. App. 1994).

Husband was not entitled to maintenance since the marital lifestyle was dependent on the wife’s nonmarital inheritance and gifts, including loans which were forgiven, and the husband had been unemployed for several years and still had taken multiple trips to British Columbia for songwriting classes, as well as other trips to attend self-improvement seminars; thus, it appeared the husband continued the comfortable lifestyle he had during his marriage. Furthermore, the husband’s portion of the marital estate combined with his nonmarital property enabled him to continue his comfortable existence. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

19.Future Adjustments.

The trial court in a divorce proceeding did not abuse its discretion by reserving the question of future maintenance and medical expenses based on future circumstances, where the ex-wife derived nominal earnings from the store of which she was proprietor, and she had a history of cancer, since this section allows the trial court to provide for probable changes in either party’s ability to be self-supporting and expressly places decisions on the amount and duration of maintenance within the discretion of the trial court; accordingly, the trial court properly reasoned that, although she was not currently in need of periodic support, her present condition was unstable and adjustments should not be foreclosed. James v. James, 618 S.W.2d 187, 1981 Ky. App. LEXIS 253 (Ky. Ct. App. 1981).

20.Amount of Maintenance.

An award of maintenance was not required even though at the time of the separation the husband was earning three times the earnings of his wife, where the wife though able to pursue a higher paying job in her field did not do so as a matter of purely personal choice. Sayre v. Sayre, 675 S.W.2d 647, 1984 Ky. App. LEXIS 526 (Ky. Ct. App. 1984).

Since any award of maintenance is wholly dependent upon the value of property received by the spouse seeking maintenance, it necessarily follows that a proper award is impossible unless the trial court can be reasonably assured that its determination of property ownership will be realized. Low v. Low, 777 S.W.2d 936, 1989 Ky. LEXIS 83 ( Ky. 1989 ).

An award of maintenance to wife was not an abuse of discretion where the record indicated wife did not have an advanced education, had been a homemaker for the duration of the 18-year marriage, and suffered from a degenerative disease which limited or precluded her ability to work outside the home, even though she would receive a portion of the marital assets and may have been eligible for supplemental security income disability benefits. Calloway v. Calloway, 832 S.W.2d 890, 1992 Ky. App. LEXIS 140 (Ky. Ct. App. 1992).

Three thousand dollars ($3,000) a month maintenance award under KRS 403.200 to a wife for three (3) years held to be too low where: (1) the husband earned $565,510.52 in 11 months and that the wife’s potential annual income, after retraining, was only $45,000; (2) the wife would not be able to continue the standard of living that the parties enjoyed while married; (3) the parties were married for nearly 18 years; (4) the wife supported the husband during his training; and (5) the domestic relations commissioner improperly overstated the flow of income expected from the wife’s investment of her cash award. Powell v. Powell, 107 S.W.3d 222, 2003 Ky. LEXIS 144 ( Ky. 2003 ).

Considering the reversal of the determination that the wife had an equitable interest in the husband’s five parcels of property that were not subject to property division and the parties’ disparate post-divorce circumstances, reconsideration of the Family Court’s maintenance award was warranted. The husband had a greater standard of living considering the husband’s partnership interests, while the wife found it necessary to move to a county with far fewer house-cleaning opportunities than the county in which the wife had lived in and performed that type of work. Gripshover v. Gripshover, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

An “increase in value” of the husband’s life estate cannot be equated with the actual cost of improvements to the life estate. Since the award of maintenance made to the wife was based on the erroneous calculation of the increase in value, the wife’s maintenance had to be recalculated. Jones v. Jones, 245 S.W.3d 815, 2008 Ky. App. LEXIS 24 (Ky. Ct. App. 2008).

Trial court in a divorce case could impute income to the wife for the purposes of awarding to the wife child support, pursuant to KRS 403.212(2)(d), and awarding maintenance under KRS 403.200 . The trial court made the relevant determinations only after taking into account the wife’s work history and the wife’s testimony concerning expected income before making its decisions. McGregor v. McGregor, 334 S.W.3d 113, 2011 Ky. App. LEXIS 30 (Ky. Ct. App. 2011).

21.Reduction In Maintenance.

A spouse resisting reduction of an otherwise appropriate maintenance award must show by a preponderance of the evidence that by virtue of a mental disease or condition, he or she was unable to appreciate the wrongfulness of his or her conduct. Therefore, finding that wife, based on her ability to “switch” personalities, was not under control of a multiple personality disorder and therefore was able to appreciate the wrongfulness of her conduct, was sufficient to justify domestic relations commissioner’s reduction in maintenance award to wife based on her adultery. Tenner v. Tenner, 906 S.W.2d 322, 1995 Ky. LEXIS 80 ( Ky. 1995 ).

Because Kentucky law does not prohibit a trial court from granting a retroactive reduction of maintenance for the period of time from the filing of the motion to the entry of judgment, the trial court’s grant of reduction in maintenance payments to wife, effective from the date husband filed motion, was not an abuse of discretion. Mudd v. Mudd, 903 S.W.2d 533, 1995 Ky. App. LEXIS 141 (Ky. Ct. App. 1995).

22.Cohabitation by Recipient.

A maintenance recipient’s cohabitation can render continued maintenance “unconscionable” if the nature of the cohabitation constitutes a new “financial resource” as contemplated in subdivision (2)(a) of this section. Combs v. Combs, 787 S.W.2d 260, 1990 Ky. LEXIS 15 ( Ky. 1990 ).

Trial court erred in reducing a husband’s maintenance obligation based on his former wife’s cohabitation; the Combs factors had to be applied to determine whether the new relationship constituted a new financial resource of the wife, such that there had been a change of circumstance under KRS 403.250(1) and such that the continuation of the husband’s maintenance obligation was unconscionable. While the wife’s living arrangements were a factor, they were not dispositive. Wheeler v. Wheeler, 154 S.W.3d 291, 2004 Ky. App. LEXIS 84 (Ky. Ct. App. 2004).

Where an ex-wife’s boyfriend spent every night with her and kept his clothes and personal items at her house, their relationship qualified as cohabitation whether considered in light of sexual involvement or living in the same house; therefore, the trial court properly granted summary judgment terminating the former spouse’s maintenance obligations. Bennett v. Bennett, 133 S.W.3d 487, 2004 Ky. App. LEXIS 92 (Ky. Ct. App. 2004).

23.Enforcement of Order.

Where former spouse stipulated that he was in arrears in the neighborhood of $200,000 and that no maintenance payments had been made between January 10, 1990, and February 1, 1993, and where there was sufficient evidence to support a finding that spouse was able to pay the purge amount of $200,000 or make satisfactory arrangements for such payment, the trial court ordered former spouse incarcerated for contempt to pay child support until either $200,000 was paid to former wife, real party in interest, or satisfactory arrangements were made for said payments. The character and purpose of this action rendered it a civil rather than a criminal contempt proceeding. The act of disobedience consisted solely in refusing to do what had been ordered and not in doing something that had been prohibited. The order imposed conditional imprisonment for the very obvious purpose of compelling the former spouse to obey (pay) the order of the court or plan for payment. Blakeman v. Schneider, 864 S.W.2d 903, 1993 Ky. LEXIS 148 ( Ky. 1993 ).

Contempt orders against a former husband who has become delinquent in support payments should be limited in their coverage to the amounts the court has previosly found are within the ability of the former husband to satisfy. Following a proper determination of his ability to pay, it should be clearly set forth in a finding of fact. The court may properly, in its discretion if it finds petitioner unable to satisfy the entire judgment, order payments be made on such sum over a period of time, which are within the ability of the petitioner to satisfy. Blakeman v. Schneider, 864 S.W.2d 903, 1993 Ky. LEXIS 148 ( Ky. 1993 ).

As an obligor’s past due payments for child support and maintenance become vested when due, and each payment is a fixed and liquidated debt which a court has no power to modify, the obligee is entitled to prejudgment interest as a matter of law from the date that each payment was due. Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

24.Award Proper.

Trial court's decision to include the children's living expenses in its calculation of the mother's reasonable living expenses was not erroneous, as the family court acted appropriately in considering the parties' disparity in income and the daughter's medical condition, which the court believed increased the mother's living expenses given that she was the custodial and caretaker of the child. Weber v. Lambe, 513 S.W.3d 912, 2017 Ky. LEXIS 89 ( Ky. 2017 ).

Cited in:

Bell v. Bell, 494 S.W.2d 517, 1973 Ky. LEXIS 446 ( Ky. 1973 ); Purdom v. Purdom, 498 S.W.2d 131, 1973 Ky. LEXIS 287 ( Ky. 1973 ); Farmer v. Farmer, 506 S.W.2d 109, 1974 Ky. LEXIS 744 ( Ky. 1974 ); Brooks v. Burkeen, 549 S.W.2d 91, 1977 Ky. LEXIS 407 ( Ky. 1977 ); Bruton v. Bruton, 569 S.W.2d 182, 1978 Ky. App. LEXIS 5 56 (Ky. Ct. App. 1978); Ogle v. Ogle, 681 S.W.2d 921, 1984 Ky. App. LEXIS 634 (Ky. Ct. App. 1984); In re Lineberry, 55 B.R. 510, 1985 Bankr. LEXIS 4945 (Bankr. W.D. Ky. 1985 ); In re Erler, 60 B.R. 220, 1986 Bankr. LEXIS 6250 (Bankr. W.D. Ky. 1986 ); Calloway v. Calloway, 707 S.W.2d 789, 1986 Ky. App. LEXIS 1109 (Ky. Ct. App. 1986); Poe v. Poe, 711 S.W.2d 849, 1986 Ky. App. LEXIS 1082 (Ky. Ct. App. 1986); Robinette v. Robinette, 736 S.W.2d 351, 1987 Ky. App. LEXIS 5 24 (Ky. Ct. App. 1987); Garrett v. Garrett, 766 S.W.2d 634, 1989 Ky. App. LEXIS 31 (Ky. Ct. App. 1989); Baker v. Baker, 785 S.W.2d 261, 1989 Ky. App. LEXIS 153 (Ky. Ct. App. 1989); Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ); John v. John, 893 S.W.2d 373, 1995 Ky. App. LEXIS 5 (Ky. Ct. App. 1995); Lichtenstein v. Barbanel, 322 S.W.3d 27, 2010 Ky. LEXIS 121 ( Ky. 2010 ); Anderson v. Johnson, 350 S.W.3d 453, 2011 Ky. LEXIS 132 ( Ky. 2011 ).

DECISIONS UNDER PRIOR LAW

1.Alimony.

Alimony is not and has never been intended as a penalty for breach of the marriage contract. Igleheart v. Igleheart, 450 S.W.2d 239, 1970 Ky. LEXIS 433 ( Ky. 1970 ).

Where the wife’s income was equal to the husband’s, she received no alimony because she had an adequate estate of her own. Igleheart v. Igleheart, 450 S.W.2d 239, 1970 Ky. LEXIS 433 ( Ky. 1970 ).

Alimony is always represented by money and is damages to compensate for loss of marital support and maintenance. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ).

Where the trial court awarded the wife the use of the residence subject to termination upon remarriage, such award was alimony and was not a just and reasonable division of marital property. Williams v. Williams, 500 S.W.2d 79, 1973 Ky. LEXIS 208 ( Ky. 1973 ).

2.Factors Considered.

In arriving at the amount of alimony, courts have no fixed rule, but consider the age, health, estate, social position and earning capacity of both husband and wife; the conduct the parties have exhibited toward each other; the property the husband has accumulated; his income therefrom and his general ability to pay; the husband’s probable earnings and probable inheritance; the degree of fault of each party; the standard of living the wife would have had but for the divorce and whether wife assisted in the accumulation of the husband’s estate; the conditions and needs of the wife and her children; the cause for which divorce is granted; whether wife and children are living with wife’s parents; the value of dower that the wife would have otherwise received; whether husband has a child to care for, and all other relevant circumstances. Sebastian v. Rose, 135 Ky. 197 , 122 S.W. 120, 1909 Ky. LEXIS 277 ( Ky. 1909 ). See Carter v. Carter, 140 Ky. 228 , 130 S.W. 1102, 1910 Ky. LEXIS 226 ( Ky. 191 0 ); Shehan v. Shehan, 152 Ky. 191 , 153 S.W. 243, 1913 Ky. LEXIS 640 ( Ky. 1913 ); Anderson v. Anderson, 152 Ky. 773 , 154 S.W. 1, 1913 Ky. LEXIS 724 ( Ky. 1913 ); Wesley v. Wesley, 181 Ky. 135 , 204 S.W. 165, 1918 Ky. LEXIS 522 ( Ky. 1918 ); Kelly v. Kelly, 183 Ky. 172 , 209 S.W. 335, 1919 Ky. LEXIS 4 86 (Ky.), modified, 183 Ky. 576 , 209 S.W. 339, 1919 Ky. LEXIS 4 87 ( Ky. 1919 ); Simpson v. Simpson, 201 Ky. 282 , 256 S.W. 412, 1923 Ky. LEXIS 277 ( Ky. 1923 ); Watkins v. Watkins, 202 Ky. 141 , 259 S.W. 20, 1923 Ky. LEXIS 354 ( Ky. 1923 ); Miles v. Miles, 203 Ky. 431 , 262 S.W. 576, 1924 Ky. LEXIS 920 ( Ky. 1924 ); Sawyer v. Sawyer, 224 Ky. 522 , 6 S.W.2d 679, 1928 Ky. LEXIS 626 ( Ky. 1928 ); Riley v. Riley, 233 Ky. 134 , 25 S.W.2d 59, 1930 Ky. LEXIS 514 ( Ky. 1930 ); Harley v. Harley, 255 Ky. 370 , 74 S.W.2d 195, 1934 Ky. LEXIS 235 ( Ky. 1934 ); Glenn v. Glenn, 255 Ky. 422 , 74 S.W.2d 472, 1934 Ky. LEXIS 250 ( Ky. 1934 ); Polivick v. Polivick, 259 Ky. 653 , 83 S.W.2d 8, 1935 Ky. LEXIS 362 ( Ky. 1935 ); Beutel v. Beutel, 262 Ky. 805 , 91 S.W.2d 528, 1936 Ky. LEXIS 108 ( Ky. 1936 ); Emery v. Emery, 264 Ky. 331 , 94 S.W.2d 634, 1936 Ky. LEXIS 306 ( Ky. 1936 ); Duff v. Duff, 268 Ky. 343 , 104 S.W.2d 1095, 1937 Ky. LEXIS 463 ( Ky. 1937 ); Hawkins v. Hawkins, 272 Ky. 252 , 114 S.W.2d 97, 1938 Ky. LEXIS 114 ( Ky. 1938 ); Collins v. Collins, 279 Ky. 139 , 130 S.W.2d 37, 1939 Ky. LEXIS 251 ( Ky. 1939 ); Quinn v. Quinn, 279 Ky. 286 , 130 S.W.2d 834, 1939 Ky. LEXIS 298 ( Ky. 1939 ); Sabel v. Sabel, 286 Ky. 575 , 151 S.W.2d 56, 1941 Ky. LEXIS 286 ( Ky. 1941 ); Lewis v. Lewis, 289 Ky. 615 , 159 S.W.2d 995, 1942 Ky. LEXIS 612 ( Ky. 1942 ); Dayton v. Dayton, 290 Ky. 418 , 161 S.W.2d 618, 1942 Ky. LEXIS 415 ( Ky. 1942 ); Barnett v. Barnett, 292 Ky. 840 , 168 S.W.2d 17, 1942 Ky. LEXIS 153 (Ky. 1942); Maher v. Maher, 295 Ky. 263 , 174 S.W.2d 289, 1943 Ky. LEXIS 216 ( Ky. 1943 ); Goodwin v. Goodwin, 296 Ky. 835 , 178 S.W.2d 214, 1944 Ky. LEXIS 614 ( Ky. 1944 ); Faulconer v. Faulconer, 307 Ky. 850 , 212 S.W.2d 322, 1948 Ky. LEXIS 840 ( Ky. 1948 ); Taylor v. Taylor, 313 Ky. 11 , 230 S.W.2d 67, 1950 Ky. LEXIS 792 ( Ky. 1950 ); Ahrens v. Ahrens, 313 Ky. 55 , 230 S.W.2d 73, 1950 Ky. LEXIS 795 ( Ky. 1950 ); James v. James, 248 S.W.2d 706, 1952 Ky. LEXIS 749 ( Ky. 1952 ); Oldham v. Oldham, 259 S.W.2d 42, 1953 Ky. LEXIS 918 ( Ky. 1953 ), overruled, Hickey v. Hickey, 383 S.W.2d 114, 1964 Ky. LEXIS 4 ( Ky. 1964 ); Johnson v. Johnson, 263 S.W.2d 106, 1953 Ky. LEXIS 1231 (Ky. Ct. App. 1953); Patterson v. Patterson, 266 S.W.2d 91, 1954 Ky. LEXIS 775 ( Ky. 1954 ); Hicks v. Hicks, 290 S.W.2d 483, 1956 Ky. LEXIS 32 5 ( Ky. 1956 ); Alexander v. Alexander, 317 S.W.2d 494, 1958 Ky. LEXIS 96 ( Ky. 1958 ); Yonts v. Yonts, 329 S.W.2d 209, 1959 Ky. LEXIS 153 ( Ky. 1959 ); Boggs v. Boggs, 330 S.W.2d 118, 1959 Ky. LEXIS 186 ( Ky. 1959 ); Young v. Young, 340 S.W.2d 253, 1960 Ky. LEXIS 32 ( Ky. 1960 ); Davis v. Davis, 347 S.W.2d 534, 1961 Ky. LEXIS 369 ( Ky. 1961 ); Gann v. Gann, 347 S.W.2d 540, 1961 Ky. LEXIS 372 ( Ky. 1961 ); Hunt v. Hunt, 394 S.W.2d 743, 1965 Ky. LEXIS 199 ( Ky. 1965 ); Ralston v. Ralston, 396 S.W.2d 775, 1965 Ky. LEXIS 121 ( Ky. 1965 ).

When fixing alimony, it is proper to consider the wife’s estate, its income and market value as well as that of the husband. Lyon v. Lyon, 243 Ky. 236 , 47 S.W.2d 1072, 1932 Ky. LEXIS 79 ( Ky. 1932 ).

The rule that fixing of alimony is regulated by circumstances such as size of husband’s estate and his age, income, health, ability to labor and earning capacity, as well as wife’s age, health and situation, does not place burden of proving such circumstances on wife, but is only general formula to be applied in light of evidence actually before court. Henry v. Henry, 293 Ky. 483 , 169 S.W.2d 296, 1943 Ky. LEXIS 642 ( Ky. 1943 ).

Life insurance premiums, expenses of professional association membership, and cost of professional books and periodicals were properly deductible from physician’s gross income in determining allowance of alimony and support money. Goodloe v. Goodloe, 294 Ky. 100 , 171 S.W.2d 18, 1943 Ky. LEXIS 394 ( Ky. 1943 ).

Money received by employe in reimbursement for traveling expenses could not be added to his salary in determining his income for purposes of awarding alimony and support money. Goodloe v. Goodloe, 294 Ky. 100 , 171 S.W.2d 18, 1943 Ky. LEXIS 394 ( Ky. 1943 ).

The amount of alimony and maintenance must rest on the particular facts of each case. McCoulf v. McCoulf, 307 Ky. 682 , 212 S.W.2d 284, 1948 Ky. LEXIS 824 ( Ky. 1948 ).

The probability of total disability of the husband commencing at some future time is not a sufficient cause for relieving the husband on the payment of alimony, but may be considered as a factor in determining the amount to be fixed at the present time. Moneypenny v. Moneypenny, 310 Ky. 9 , 219 S.W.2d 960, 1949 Ky. LEXIS 839 ( Ky. 1949 ).

Determination of the amount to be allowed for alimony or maintenance must rest on the facts in each case. Stevens v. Stevens, 313 Ky. 294 , 231 S.W.2d 49, 1950 Ky. LEXIS 877 ( Ky. 1950 ).

In fixing alimony the wife’s age, health and means to support herself may be considered as well as the husband’s income and earning capacity. Youngblood v. Youngblood, 252 S.W.2d 21, 1952 Ky. LEXIS 967 ( Ky. 1952 ).

The fact that a wife is able to support herself by engaging in employment is not a basis for denying alimony. Francisco v. Francisco, 331 S.W.2d 279, 1960 Ky. LEXIS 118 ( Ky. 1960 ).

In arriving at an equitable amount of alimony, there is no exact formula to apply. Terrell v. Terrell, 352 S.W.2d 195, 1961 Ky. LEXIS 195 ( Ky. 1961 ).

A portion of the husband’s estate which was given to him by his parents should be considered in determining the amount of alimony to award his wife upon their divorce, although this portion should not necessarily be considered in the same manner as the property accumulated during the marriage. Hall v. Hall, 380 S.W.2d 231, 1964 Ky. LEXIS 291 ( Ky. 1964 ).

The estate of the husband is the most important factor in determining the amount of alimony to be award upon divorce and the source of the property involved; how and when it was acquired; whether acquired or accumulated before or after marriage; the estate of each of the parties at the time of their marriage; whether the property is the husband’s separate estate or the joint accumulation of the parties; and the contributions of each to the joint or accumulated property should also be considered. Hall v. Hall, 380 S.W.2d 231, 1964 Ky. LEXIS 291 ( Ky. 1964 ).

The wife’s estate consisting of what she owns and what she has been awarded is insufficient, unless it will yield income or profits sufficient for her comfortable maintenance in a style suitable to the social standing established by the parties during marriage, without her being required to consume the principal. Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ).

3.Discretion of Trial Court.

The amount of alimony was left to the sound discretion of the chancellor to be decided in the light of the facts of each particular case. Lewis v. Lewis, 204 Ky. 5 , 263 S.W. 366, 1924 Ky. LEXIS 385 ( Ky. 1924 ). See Kelly v. Kelly, 183 Ky. 172 , 209 S.W. 335, 1919 Ky. LEXIS 486 (Ky.), modified, 183 Ky. 5 76, 209 S.W. 339, 1919 Ky. LEXIS 487 ( Ky. 1919 ); Williamson v. Williamson, 243 Ky. 544 , 49 S.W.2d 337, 1932 Ky. LEXIS 155 ( Ky. 1932 ); Jones v. Jones, 261 Ky. 647 , 88 S.W.2d 673, 1935 Ky. LEXIS 713 ( Ky. 1935 ); Emery v. Emery, 264 Ky. 331 , 94 S.W.2d 634, 1936 Ky. LEXIS 306 ( Ky. 1936 ); Stewart v. Stewart, 272 Ky. 97 , 113 S.W.2d 842, 1937 Ky. LEXIS 695 ( Ky. 1937 ).

The court has full and complete control at all times of alimony, support and maintenance of children, and the care and custody of children. Osten v. Osten, 286 Ky. 473 , 151 S.W.2d 67, 1941 Ky. LEXIS 290 ( Ky. 1941 ).

Generally, allowance of alimony is within the discretion of the trial court. Rutledge v. Rutledge, 310 S.W.2d 276, 1958 Ky. LEXIS 383 ( Ky. 1958 ).

The chancellor was given much discretion in determining the amount of alimony and the form of its payment. Combs v. Combs, 314 S.W.2d 689, 1958 Ky. LEXIS 319 ( Ky. 1958 ).

The fixing of alimony in a divorce action was within the sound discretion of the chancellor to be arrived at from all the acts of the particular case and his decision should carry much weight. Yonts v. Yonts, 329 S.W.2d 209, 1959 Ky. LEXIS 153 ( Ky. 1959 ).

In matters of alimony, maintenance, custody and periods of visitation, the trial court has broad discretion, the exercise of which will not be disturbed unless it is abused. Somerville v. Somerville, 339 S.W.2d 940, 1960 Ky. LEXIS 495 ( Ky. 1960 ).

An award of alimony is within the sound discretion of the court and will not be disturbed unless the award appears to be clearly erroneous. Peavy v. Peavy, 351 S.W.2d 869, 1961 Ky. LEXIS 182 ( Ky. 1961 ).

If all legal conditions necessary for the allowance of permanent alimony are satisfied, then the trial judge is vested with a wide discretion to determine the amount and method of payment of the money damages awarded called “alimony.” Colley v. Colley, 460 S.W.2d 821, 1970 Ky. LEXIS 594 ( Ky. 1970 ).

4.Foreign Divorce.

Where the parties were divorced in a Nevada proceeding in which the issue of alimony was not raised, a Kentucky court was not precluded from considering the resident wife’s claim for alimony. Davis v. Davis, 303 S.W.2d 256, 1957 Ky. LEXIS 234 ( Ky. 1957 ).

A foreign divorce granted to a husband who was at fault, where the wife was not personally served, did not appear, and the issue of alimony was not raised, did not preclude an award of alimony in an action in Kentucky. Pollard v. Pollard, 330 S.W.2d 407, 1959 Ky. LEXIS 193 ( Ky. 1959 ).

5.Subsequent Suit.

Wife who is before the court by personal service may not proceed for the first time to obtain alimony after a final judgment in the cause, but where wife was before the court by constructive service only, she could proceed for the first time to obtain alimony after final judgment. Honaker v. Honaker, 218 Ky. 212 , 291 S.W. 42, 1927 Ky. LEXIS 132 ( Ky. 1927 ).

Where the wife in good faith incorrectly believed that the husband had orally contracted to pay her an amount monthly in lieu of alimony and a property settlement, the wife was allowed to maintain a separate suit for alimony after the husband had been granted a divorce. Reynierson v. Reynierson, 303 S.W.2d 252, 1957 Ky. LEXIS 233 ( Ky. 1957 ).

Absent any evidence of unusual circumstances justifying an award of alimony some 14 months after the final divorce decree, where no motion or petition for the allowance of alimony was filed by the wife after the decree, the court’s award for alimony was erroneous. Hodges v. Hodges, 478 S.W.2d 713, 1972 Ky. LEXIS 337 ( Ky. 1972 ).

6.Res Judicata.

Where original suit for divorce and alimony was dismissed and no proof was taken, such judgment was not res judicata as far as award for alimony was concerned. Littleton v. Littleton, 229 Ky. 353 , 17 S.W.2d 204, 1929 Ky. LEXIS 745 ( Ky. 1929 ), overruled, Bobbitt v. Bobbitt, 297 Ky. 28 , 178 S.W.2d 986, 1944 Ky. LEXIS 676 ( Ky. 1944 ).

7.Enforcement.

Where husband was able to pay judgment for alimony, maintenance and attorney fees, his imprisonment for contempt in failing to pay was not imprisonment for debt. Stinson v. Stinson, 311 Ky. 139 , 223 S.W.2d 727, 1949 Ky. LEXIS 1080 ( Ky. 1949 ).

The chancellor could secure the payment of alimony by granting the wife a lien on the husband’s property. Davis v. Davis, 347 S.W.2d 534, 1961 Ky. LEXIS 369 ( Ky. 1961 ).

8.Appeal.

A wife was not barred from appealing the alimony portion of divorce judgment by her acceptance of the benefits of the other portions of the judgment. Hundley v. Hundley, 291 S.W.2d 544, 1956 Ky. LEXIS 382 ( Ky. 1956 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Mazanec, A Degree or License as Marital Property: The Inman Case, Vol. 46, No. 1, January, 1982, Ky. Bench and Bar 18.

Gilbert and Wise, Apportioning Military Pensions Under The Uniformed Services Former Spouses Protection Act and Kentucky Law, Volume 55, No. 1, Winter 1991 Ky. Bench & B. 26.

Kentucky Law Journal.

Kentucky Law Survey, Wilson, Domestic Relations, 65 Ky. L.J. 383 (1976-77).

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Notes, Restoration of Property: Barrier to Interspousal Gifts, 67 Ky. L.J. 173 (1978-1979).

Kentucky Law Survey, Harris and Donoho, Domestic Relations, 68 Ky. L.J. 753 (1979-1980).

Kentucky Law Survey, Crome, Domestic Relations, 69 Ky. L.J. 581 (1980-81).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Kentucky Law Survey, Graham, Domestic Relations, 71 Ky. L.J. 445 (1982-83).

Notes, Antenuptial Contracts and Divorce in Kentucky: A Better Approach, 72 Ky. L.J. 867 (1983-84).

Graham, Using Formulas to Separate Marital and Nonmarital Property: A Policy Oriented Approach to the Division of Appreciated Property Upon Divorce, 73 Ky. L.J. 41 (1984-85).

Kentucky Law Survey, Graham, Domestic Relations, 73 Ky. L.J. 379 (1984-85).

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Northern Kentucky Law Review.

Notes, Intangible Educational and Professional Attainments as Divisible Marital Property, 7 N. Ky. L. Rev. 145 (1980).

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.7, 24.20.

Petrilli, Kentucky Family Law, Foreign Decrees (Conflict of Laws), § 28.4.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, § 21.4.

Petrilli, Kentucky Family Law, Maintenance, §§ 25.1, 25.3, 25.4, 25.10, 25.11, 25.12, 25.29, 25.30.

Petrilli, Kentucky Family Law, Separation Agreements, §§ 19.19, 19.20.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

Petrilli, Kentucky Family Law, Forms, Dissolution, Legal Separation, Alimony, Form 2.25.

403.210. Recognition of “Family Support Act of 1988” mandate.

The General Assembly recognizes that under the federal “Family Support Act of 1988,” P.L. 100-485, the Commonwealth of Kentucky is required to implement child support guidelines.

History. Enact. Acts 1972, ch. 182, § 11; 1988, ch. 258, § 7, effective July 15, 1988; repealed and reenact., Acts 1990, ch. 418, § 1, effective July 13, 1990.

Compiler’s Notes.

The Family Support Act of 1988, P.L. 100-485 referred to in this section is compiled as found in pertinent part as 42 USCS §§ 652, 654, 666, and 667.

Research References and Practice Aids

Kentucky Bench & Bar.

Crocker, Current Issues in Child Support and the Use of Child Support Guidelines, Vol. 57, No. 2, Spring 1993 Ky. Bench & B. 9.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Worksheet for Monthly Child Support Obligation (CS-71), Form 263.01.

Caldwell’s Kentucky Form Book, 5th Ed., Worksheet for Monthly Child Support Obligation Exception (CS-71.1), Form 263.02.

Caldwell’s Kentucky Form Book, 5th Ed., Property Settlement Agreement, Form 253.16.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.3.

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.23.

Petrilli, Kentucky Family Law, Ground for Dissolution and Legal Separation, § 21.4.

Petrilli, Kentucky Family Law, Maintenance, §§ 25.1, 25.3, 25.11, 25.13, 25.30.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), §§ 27.1, 27.2, 27.3, 27.9, 27.11, 27.15.

403.211. Action to establish or enforce child support — Rebuttable presumption for award — Allocation of child-care costs and health care expenses — Order for payment of health care coverage — Noncustodial parent’s health plan — Attachment of income — Credit for disability payments.

  1. An action to establish or enforce child support may be initiated by the parent, custodian, or agency substantially contributing to the support of the child. The action may be brought in the county in which the child resides or where the defendant resides.
  2. At the time of initial establishment of a child support order, whether temporary or permanent, or in any proceeding to modify a support order, the child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guidelines where their application would be unjust or inappropriate. Any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation.
  3. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption and allow for an appropriate adjustment of the guideline award if based upon one (1) or more of the following criteria:
    1. A child’s extraordinary medical or dental needs;
    2. A child’s extraordinary educational, job training, or special needs;
    3. Either parent’s own extraordinary needs, such as medical expenses;
    4. The independent financial resources, if any, of the child or children;
    5. Combined monthly adjusted parental gross income in excess of the Kentucky child support guidelines;
    6. The parents of the child, having demonstrated knowledge of the amount of child support established by the Kentucky child support guidelines, have agreed to child support different from the guideline amount. However, no such agreement shall be the basis of any deviation if public assistance is being paid on behalf of a child under the provisions of Part D of Title IV of the Federal Social Security Act; and
    7. Any similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate.
  4. “Extraordinary” as used in this section shall be determined by the court in its discretion.
  5. When a party has defaulted or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs of the child or the previous standard of living of the child, whichever is greater. An order entered by default or due to insufficient evidence to determine gross income may be modified upward and arrearages awarded from the date of the original order if evidence of gross income is presented within two (2) years which would have established a higher amount of child support pursuant to the child support guidelines set forth in KRS 403.212 .
  6. The court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, reasonable and necessary child care costs incurred due to employment, job search, or education leading to employment, in addition to the amount ordered under the child support guidelines.
    1. Pursuant to 45 C.F.R. sec. 303.31(a)(2), for the purposes of this section, “health care coverage” includes fee for service, health maintenance organization, preferred provider organization, and other types of private health insurance and public health care coverage under which medical services could be provided to a dependent child. If health care coverage is reasonable in cost and accessible to either parent at the time the request for coverage is made, the court shall order the parent to obtain or maintain coverage, and the court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, the cost of health care coverage for the child, in addition to the support ordered under the child support guidelines. (7) (a) Pursuant to 45 C.F.R. sec. 303.31(a)(2), for the purposes of this section, “health care coverage” includes fee for service, health maintenance organization, preferred provider organization, and other types of private health insurance and public health care coverage under which medical services could be provided to a dependent child. If health care coverage is reasonable in cost and accessible to either parent at the time the request for coverage is made, the court shall order the parent to obtain or maintain coverage, and the court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, the cost of health care coverage for the child, in addition to the support ordered under the child support guidelines.
    2. A parent, who has one hundred percent (100%) of the combined monthly adjusted parental gross income, shall be entitled to a reduction in gross income of the entire amount of premiums incurred and paid.
    3. The court shall order the cost of health care coverage of the child to be paid by either or both parents of the child regardless of who has physical custody. The court order shall include:
      1. A judicial directive designating which parent shall have financial responsibility for providing health care coverage for the dependent child, which shall include but not be limited to health care coverage, payments of necessary health care deductibles or copayments;
      2. If appropriate, cash medical support. “Cash medical support” means an amount to be paid toward the cost of health care coverage, fixed payments for ongoing medical costs, extraordinary medical expenses, or any combination thereof; and
      3. A statement providing that if the designated parent’s health care coverage provides for covered services for dependent children beyond the age of majority, then any unmarried children up to twenty-five (25) years of age who are full-time students enrolled in and attending an accredited educational institution and who are primarily dependent on the insured parent for maintenance and support shall be covered.
    4. If health care coverage is not reasonable in cost and accessible at the time the request for the coverage is made, the court order shall provide for cash medical support until health care coverage becomes reasonable in cost and accessible.
    1. For purposes of this section, “reasonable in cost” means that the cost of coverage to the responsible parent does not exceed five percent (5%) of his or her gross income. The five percent (5%) standard shall apply to the cost of adding the child to an existing policy, the difference in the cost between a single and a family policy, or the cost of acquiring a separate policy to cover the child. If the parties agree or the court finds good cause exists, the court may order health care coverage in excess of five percent (5%) of the parent’s gross income. (8) (a) For purposes of this section, “reasonable in cost” means that the cost of coverage to the responsible parent does not exceed five percent (5%) of his or her gross income. The five percent (5%) standard shall apply to the cost of adding the child to an existing policy, the difference in the cost between a single and a family policy, or the cost of acquiring a separate policy to cover the child. If the parties agree or the court finds good cause exists, the court may order health care coverage in excess of five percent (5%) of the parent’s gross income.
    2. For purposes of this section, “accessible” means that there are providers who meet the health care needs of the child and who are located no more than sixty (60) minutes or sixty (60) miles from the child’s primary residence, except that nothing shall prohibit use of a provider located more than sixty (60) minutes or sixty (60) miles from the child’s primary residence.
  7. The cost of extraordinary medical expenses shall be allocated between the parties in proportion to their combined monthly adjusted parental gross incomes. “Extraordinary medical expenses” means uninsured expenses in excess of two hundred fifty dollars ($250) per child per calendar year. “Extraordinary medical expenses” includes but is not limited to the costs that are reasonably necessary for medical, surgical, dental, orthodontal, optometric, nursing, and hospital services; for professional counseling or psychiatric therapy for diagnosed medical disorders; and for drugs and medical supplies, appliances, laboratory, diagnostic, and therapeutic services.
  8. The court order shall include the Social Security numbers, provided in accordance with KRS 403.135 , of all parties subject to a support order.
  9. In any case administered by the Cabinet for Health and Family Services, if the parent ordered to provide health care coverage is enrolled through an insurer but fails to enroll the child under family coverage, the other parent or the Cabinet for Health and Family Services may, upon application, enroll the child.
  10. In any case administered by the cabinet, information received or transmitted shall not be published or be open for public inspection, including reasonable evidence of domestic violence or child abuse if the disclosure of the information could be harmful to the custodial parent or the child of the parent. Necessary information and records may be furnished as specified by KRS 205.175 .
  11. In the case in which a parent is obligated to provide health care coverage, and changes employment, and the new employer provides health care coverage, the Cabinet for Health and Family Services shall transfer notice of the provision for coverage for the child to the employer, which shall operate to enroll this child in the obligated parent’s health plan, unless the obligated parent contests the notice as specified by KRS Chapter 13B.
  12. Notwithstanding any other provision of this section, any wage or income shall not be exempt from attachment or assignment for the payment of current child support or owed or to-be-owed child support.
  13. A payment of money received by a child as a result of a parental disability shall be credited against the child support obligation of the parent. A payment shall not be counted as income to either parent when calculating a child support obligation. An amount received in excess of the child support obligation shall be credited against a child support arrearage owed by the parent that accrued subsequent to the date of the parental disability, but shall not be applied to an arrearage that accrued prior to the date of disability. The date of disability shall be as determined by the paying agency.

History. Enact. Acts 1990, ch. 418, § 2, effective July 13, 1990; 1994, ch. 330, § 10, effective July 15, 1994; 1996, ch. 328, § 3, effective July 15, 1996; 1998, ch. 255, § 19, effective July 15, 1998; 1998, ch. 426, § 579, effective July 15, 1998; 2000, ch. 430, § 18, effective July 14, 2000; 2005, ch. 99, § 624, effective June 20, 2005; 2006, ch. 126, § 4, effective July 12, 2006; 2009, ch. 82, § 1, effective June 25, 2009; 2018 ch. 68, § 1, effective July 14, 2018; 2021 ch. 47, § 1, effective June 29, 2021.

Compiler’s Notes.

Part D of Title IV of the Social Security Act referred to in subdivision (3)(f) of this section is compiled as 42 USCS 651 to 667.

NOTES TO DECISIONS

1.Discretion of Court.

Subsection (4) of this section provides that the circumstances considered as extraordinary shall be determined by the court in its discretion and clearly the guidelines are not designed to cover all the possible scenarios in which divorcing parents find themselves; the legislature has not taken away the trial court’s broad discretion in ensuring that the needs of their children will continue to be met. Redmon v. Redmon, 823 S.W.2d 463, 1992 Ky. App. LEXIS 18 (Ky. Ct. App. 1992).

Where unusual circumstances exist which are not specifically provided for in the statute, the Legislature has provided that trial courts should exercise their discretion to achieve just results. But a trial court does not have the discretion to deviate from the guidelines simply because it thinks the Legislature erred in setting the appropriate levels. Nor does it have the discretion to ignore the guidelines because it feels that important factors were ignored by the Legislature. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

The court has the flexibility to fashion appropriate orders for situations not addressed by the current statutory scheme. Brown v. Brown, 952 S.W.2d 707, 1997 Ky. App. LEXIS 95 (Ky. Ct. App. 1997).

Court’s refusal to require father to pay child support was not clearly erroneous where children resided with father 60% of the time and father, as primary custodian, had an ongoing obligation to maintain a residence for the children on a permanent basis, regardless of the amount of time that they spent with their mother. Brown v. Brown, 952 S.W.2d 707, 1997 Ky. App. LEXIS 95 (Ky. Ct. App. 1997).

State Supreme Court found that KRS 403.212(2)(f) imposed a mandatory obligation on parents to report and verify their income but that trial courts could consider evidence not provided in a parent’s statement of income when determining a parent’s child support obligation, and although the Supreme Court upheld the trial court’s decision to consider whether a wife had sources of income other than those the wife reported, it affirmed the intermediate appellate court’s judgment vacating the trial court’s judgment awarding neither the wife nor the wife’s husband child support because the record did not support the trial court’s judgment imputing income to the wife. Schoenbachler v. Minyard, 110 S.W.3d 776, 2003 Ky. LEXIS 82 ( Ky. 2003 ).

Visitation is not a factor to be considered in setting an amount of child support. Dickens v. Dickens, 401 S.W.3d 489, 2013 Ky. App. LEXIS 79 (Ky. Ct. App. 2013).

Supreme Court of Kentucky concludes that trial courts have the discretion to award a credit for Social Security retirement benefits paid to the dependent child. This authority does not stem from Ky. Rev. Stat. Ann. § 403.211(15) but from a trial court's general authority and discretion to determine child-support questions. C.D.G. v. N.J.S., 469 S.W.3d 413, 2015 Ky. LEXIS 1763 ( Ky. 2015 ).

2.Authority of Cabinet.

The Cabinet for Families and Children had authority to intervene to seek a modification of a final order terminating child support, and was not required to file an independent action. Berry v. Cabinet for Families & Children, 998 S.W.2d 464, 1999 Ky. LEXIS 86 ( Ky. 1999 ).

Because a county attorney failed to submit any application to intervene on behalf of the Commonwealth of Kentucky’s Cabinet for Health and Family Services, the Cabinet was not properly before the family court. Its motion to set child support was thus ineffectual, and, as a result, the family court should have entered no order of child support. Boggs v. Commonwealth ex rel. Boggs, 2012 Ky. App. LEXIS 133 (Ky. Ct. App. Aug. 10, 2012), review denied, ordered not published, 2013 Ky. LEXIS 188 (Ky. Feb. 13, 2013).

3.Minor Parent.

Father of an illegitimate child, although lacking the statutorily-defined capacity to consent to sexual relations on the date a child is conceived, may be adjudged liable in a civil paternity action for the years subsequent to the date upon which the father reaches the age of majority. Commonwealth ex rel. Rush v. Hatfield, 929 S.W.2d 200, 1996 Ky. App. LEXIS 148 (Ky. Ct. App. 1996).

4.Assets of Noncustodial Parent.

The child support guidelines, which are exclusively tied to income, are not appropriate where the noncustodial parent has no income, but may have sufficient assets from which support can be obtained; therefore where incarcerated father did not claim to be indigent, nor did he state he had no property to satisfy the support obligation, his children should not have to bear additional deprivation in the form of a reduced standard of living if the father has property, or potential sources of assets, which could be liquidated to satisfy any support delinquency or arrearage. Redmon v. Redmon, 823 S.W.2d 463, 1992 Ky. App. LEXIS 18 (Ky. Ct. App. 1992).

5.Income.

Supplemental security income (SSI) benefits paid to a child because of his own disability may be considered as independent financial resources of the child in determining the parental support obligation and in determining whether application of the guidelines would be unjust or inappropriate as considering SSI in the child’s name is consistent with considering social security benefits in the parent’s gross income. The child’s independent benefits would merely be recognized in weighing the equities and fairness of the circumstances of the child and the parents. Barker v. Hill, 949 S.W.2d 896, 1997 Ky. App. LEXIS 70 (Ky. Ct. App. 1997).

Although combined monthly adjusted parental gross income in excess of the child support guidelines is a valid basis for deviating from the child support table, and a trial court may use its judicial discretion to determine child support in circumstances where combined adjusted parental gross income exceeds the uppermost level of the guidelines table, a trial court erred when it based the amount of child support to be paid by a former husband who earned $57,000 per month almost entirely on a mathematical extrapolation from the child support guidelines. Downing v. Downing, 45 S.W.3d 449, 2001 Ky. App. LEXIS 41 (Ky. Ct. App. 2001), limited, Conley v. Conley, 2008 Ky. App. Unpub. LEXIS 975 (Ky. Ct. App. May 16, 2008).

Where a divorce settlement agreement provided that the father’s federal income tax returns would be used to determine his income, and that his children would receive 30 percent of the proceeds from his said salary and bonus, his “income” was his salary and bonus less deductions for taxes (but not for voluntary payments, such as 401K contributions) — in other words, his “net income.” Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

Trial court properly determined unvested restricted stock units would not be considered part of a husband’s income for the purpose of calculating child support because it was not required to do award more than the guidelines recommended; the trial court found the children all participated in one normal extra-curricular activity each, attended public school, and did not have any extraordinary medical needs. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Because the combined gross monthly income captured all sources of income available to the parties including bonuses, restricted stock units (RSUs), and maintenance, the ex-husband’s RSU income should have been included in the income calculation for child support purposes, and the trial court erred in not doing so. Normandin v. Normandin, 634 S.W.3d 589, 2020 Ky. LEXIS 456 ( Ky. 2020 ).

6.— Source.

Disabled parent whose sole means of income was supplementary security income (SSI) benefits was not required to pay child support absent other sufficient assets. Youngblood v. James, 883 S.W.2d 512, 1994 Ky. App. LEXIS 114 (Ky. Ct. App. 1994).

Provisions of KRS 403.211 did not authorize a court to credit against a parent’s child support obligation the retirement dependent benefit that the child received based upon the child’s receipt of Social Security retirement benefits on account of the other parent. N.J.S. v. C.D.G., 2014 Ky. App. LEXIS 49 (Ky. Ct. App. Mar. 21, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 830 (Ky. Ct. App. Mar. 21, 2014).

7.Extraordinary Factor.

Where trial court sought to justify its decision by referring to the uncertain nature of father’s work, although that factor might properly have been taken into account in setting a schedule for payments (e.g. by having father make payments at one level when working and at another level when laid off, as was done by the trial court in a previous order), under the facts of this case, it was not an “extraordinary factor” justifying departure from the guidelines. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

The incarceration of the obligor parent is not an extraordinary circumstance within the meaning of this section and does not relieve him or her from the obligation to pay child support. Commonwealth ex rel. Marshall v. Marshall, 15 S.W.3d 396, 2000 Ky. App. LEXIS 26 (Ky. Ct. App. 2000).

If an imputed monthly child support obligation for a prior-born child that was considered as part of the mother’s income calculation created an extraordinary hardship on the father or the father’s after-born child, the court had authority to permit deviation from the guidelines, pursuant to KRS 403.211(2) and (3). Kimbrough v. Child Support Div. ex rel. Belmar, 215 S.W.3d 69, 2006 Ky. App. LEXIS 226 (Ky. Ct. App. 2006).

Trial court erred in finding there was no legal justification for ordering an ex-husband to pay half the funeral expenses for his only son as it would offend equity and would be unjust not to have the ex-husband pay half of the funeral expenses after collecting death benefits based upon his son’s death. Jewell v. Jewell, 255 S.W.3d 522, 2008 Ky. App. LEXIS 162 (Ky. Ct. App. 2008).

8.Educational Expenses.

For purposes of determining a modification in child support based on incurred educational expenses, educational expenses encompass more than mere tuition. Giacalone v. Giacalone, 876 S.W.2d 616, 1994 Ky. App. LEXIS 17 (Ky. Ct. App. 1994).

Where the mother made a unilateral decision to send the child to a parochial school, the father was not obligated to pay the child’s tuition under KRS 403.211(3)(b), as there was no evidence that a public school would have been an abuse of discretion. Finck v. Finck, 2005 Ky. App. Unpub. LEXIS 908 (Ky. Ct. App. May 27, 2005).

9.—Extraordinary Educational Needs.

This section does not encompass private music lessons in its definition of “extraordinary educational needs.” “Extraordinary educational needs” refers to those things not ordinarily necessary to the acquisition of a common school education but which become necessary because of the special needs of a particular student. Smith v. Smith, 845 S.W.2d 25, 1992 Ky. App. LEXIS 230 (Ky. Ct. App. 1992).

In case law, the court agreed with the finding that tuition was an extraordinary expense and could be required in addition to child support, and this finding met the requirements of the statute. Bjelland v. Bjelland, 408 S.W.3d 86, 2013 Ky. App. LEXIS 121 (Ky. Ct. App. 2013).

Trial court made factual findings supporting its holding that the mother was responsible for her part of the several extracurricular expenses that included the field trip cost that was the subject of the appeal. Bjelland v. Bjelland, 408 S.W.3d 86, 2013 Ky. App. LEXIS 121 (Ky. Ct. App. 2013).

Trial court found that the mandatory field trip costs were required for the child’s participation in class and that non-mandatory field trip costs were a special need of the child, and the court found no abuse of discretion or clear error; the trial court’s acceptance of the father’s testimony as more credible met the substantial evidence requirement for its ruling. Bjelland v. Bjelland, 408 S.W.3d 86, 2013 Ky. App. LEXIS 121 (Ky. Ct. App. 2013).

Despite alleging that there was no credible evidence of special needs for extracurricular expenses, the mother did not make a motion for additional findings, and the court found no error in the order requiring the mother to pay for such expenses. Bjelland v. Bjelland, 408 S.W.3d 86, 2013 Ky. App. LEXIS 121 (Ky. Ct. App. 2013).

Trial court found that the child had extraordinary educational needs but failed to address binding case law requiring that in the absence of an agreement, a parent like the father here could not be ordered to pay private school tuition without showing that public schools were inadequate; remand was required. Ridgeway v. Warren, 2020 Ky. App. LEXIS 74 (Ky. Ct. App. June 26, 2020), op. withdrawn, sub. op., 605 S.W.3d 567, 2020 Ky. App. LEXIS 78 (Ky. Ct. App. 2020) (Ky. Ct. App. June 26, 2020), op. withdrawn, sub. op., 2020 Ky. App. LEXIS 78 (Ky. Ct. App. July 2, 2020).

Trial court improperly deviated from the child support guidelines when it ordered the father to pay private school tuition where he had not agreed to d so, and the trial court failed to make the requisite finding under Ky. Rev. Stat. Ann. § 403.211(3)(b) that public schools would have been inadequate to meet the child’s educational needs. Ridgeway v. Warren, 605 S.W.3d 567, 2020 Ky. App. LEXIS 78 (Ky. Ct. App. 2020).

Absent an agreement, a parent cannot be ordered to pay private school tuition unless the trial court also finds that public schools have been shown to be inadequate to meet the child’s needs under binding judicial precedent. Ridgeway v. Warren, 605 S.W.3d 567, 2020 Ky. App. LEXIS 78 (Ky. Ct. App. 2020).

10.Health Care Expenses.

Remand for additional proceedings was required where the court failed to make the required findings to justify its modification of a child support order to require the former wife to assume the entire burden of health insurance and other health related expenses. Van Meter v. Smith, 14 S.W.3d 569, 2000 Ky. App. LEXIS 17 (Ky. Ct. App. 2000).

family court properly determined the amount of a father’s child support arrearage, and denied the mother’s motion to require the father to provide health insurance for his emancipated children because his testimony and records were more credible than the mother’s, the parties’ oral contract to reduce the amount of child support by 17 cents was supported by the father’s testimony and records, and the mother failed to prove all the statutorily required elements where she testified that the emancipated children were now dependent upon her as opposed to the father. McCain v. McCarty, 611 S.W.3d 745, 2020 Ky. App. LEXIS 117 (Ky. Ct. App. 2020).

11.Independent Financial Resources of Child.

It was error for the court to refuse to consider the independent financial resources of the child, due to his receipt of a sizeable personal injury settlement, in determining whether extraordinary circumstances existed to merit deviating from the child support guidelines. The court also erred in not hearing evidence regarding the child’s present physical and mental condition, his current medical needs or the likelihood of further medical expenses given his injuries and whether mother was justified in being unemployed. Rainwater v. Williams, 930 S.W.2d 405, 1996 Ky. App. LEXIS 160 (Ky. Ct. App. 1996).

While Social Security disability benefits made on behalf of a disabled parent are arguably a financial resource of a recipient, such benefits are not the type of “independent financial resource” that would allow a trial court to deviate from the basic child support guidelines; allowing the trial court to consider the Social Security benefits of the disabled parent when calculating the child support obligation of the non-disabled parent would, in effect, nullify the mandate of KRS 403.211(15). Therefore, a trial court erred by deviating from the guidelines in determining the child support obligation of a noncustodial mother based on the payments of such benefits to the children of a custodial father. Artrip v. Noe, 311 S.W.3d 229, 2010 Ky. LEXIS 81 ( Ky. 2010 ).

12.Change of Circumstances.

Father continued to have a child support obligation owed to his minor child, despite the child’s placement in a rehabilitation program with the Department of Juvenile Justice, instead of living with her mother, the custodial parent. R.D.P. v. S.M.B., 2003 Ky. App. LEXIS 249 (Ky. Ct. App. Oct. 10, 2003), rev'd, 169 S.W.3d 834, 2005 Ky. LEXIS 245 ( Ky. 2005 ).

Circuit court properly awarded a father half of the mother’s monthly social security benefits she received on behalf of their children as support payments retroactive to the date of the filing of the father’s motion because both parties were unemployed as a result of disabilities and the father ceased receiving any benefits for the children inasmuch as the mother’s benefits were higher. Moody v. Demala, 2019 Ky. App. LEXIS 122 (Ky. Ct. App. July 19, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 910 (Ky. Ct. App. July 19, 2019).

13.Deviation from Guidelines.

Trial court erred by refusing to deviate from the statutory child support guidelines and in awarding child support to the mother under circumstances in which the parties were awarded joint custody of the children, neither of them was designated as the primary residential custodian, physical custody of the children was evenly divided between the parents, they bore an almost identical responsibility for the day-to-day expenses associated with their care, and, because there was no significant disparity between the parties’ annual income, the expenses necessary to provide a home for the children were also incurred by each party in equal proportion; the statutory guidelines offered sufficient flexibility to allow the trial court to fashion appropriate and just child support orders. Plattner v. Plattner, 228 S.W.3d 577, 2007 Ky. App. LEXIS 198 (Ky. Ct. App. 2007).

In a case where a legal father was equitably estopped from setting aside an agreed paternity order, it was an abuse of discretion to set aside the father's child support obligation based on the fact that he was not the biological father of two children who were born out of wedlock; the children were statutorily entitled to support, and the court was permitted to deviate from the child support guidelines where their application would have been unjust or inappropriate. K.W. v. J.S., 459 S.W.3d 399, 2015 Ky. App. LEXIS 21 (Ky. Ct. App. 2015).

14.— Support Less Than Authorized by Guidelines.

KRS 403.213 applies to any action to modify an award of child support even in a case where there was a separation agreement where the spouse acknowledged that the child support payable under the terms of the agreement was less than that authorized by the child support guidelines pursuant to subsection (3) of this section. Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

15.— Support Greater Than Authorized by Guidelines.

Divorce settlement agreement’s child support provisions are not unconscionable just because the child support exceeds either the child support guidelines or the children’s reasonable needs, as the guidelines themselves allow parents to agree to child support in excess of the guidelines and a parent has a right to do more for his or her children than the law requires. Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

While a trial court may not itself award child support in excess of the guidelines or a child’s reasonable needs, it may do so when the parent knowingly agrees. Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

Divorce settlement agreement that obliged the former husband to pay 30 percent of his salary and bonuses as child support for the parties’ two (2) children and to pay support past the age of majority should the children attend college and graduate school was not unconscionable as (1) he was a sophisticated businessman who understood the agreement’s terms, (2) he was entitled to agree to pay support in excess of the guidelines or the children’s reasonable needs, and (3) that he later had second thoughts was not a basis to void the agreement. Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

Family court did not abuse its discretion when it refused to set aside a separation agreement as the amount of child support was not unconscionable because, while in excess of the guidelines, it was not shocking to the conscious or outside the former husband's reasonable fiscal means. Mays v. Mays, 541 S.W.3d 516, 2018 Ky. App. LEXIS 87 (Ky. Ct. App. 2018).

16.Excess Payments.

Where social security payments received by child on account of father’s disability exceeded the father’s monthly support obligation, any payments of child support made by father after the social security payments began should be credited to his arrearage; the remainder of any surplus must be considered a gratuity and not allowed to offset any arrearage for support which accrued prior to the disability. Miller v. Miller, 929 S.W.2d 202, 1996 Ky. App. LEXIS 147 (Ky. Ct. App. 1996).

Where the father had overpaid the mother for day care expenses which were never incurred by the mother, and the mother had misled the father and the court regarding the day care expenses, the trial court had the authority to order mother to reimburse those costs to father. Connelly v. Degott, 132 S.W.3d 871, 2003 Ky. App. LEXIS 29 (Ky. Ct. App. 2003).

Although the trial court was allowed to modify the allocation of child care costs to reflect the fact that a wife’s need to pay those costs had decreased, the trial court improperly considered the issue under KRS 403.213 , not under KRS 403.211(6), and the appellate court vacated the trial court’s judgment and remanded the case for further proceedings. Olson v. Olson, 108 S.W.3d 650, 2003 Ky. App. LEXIS 158 (Ky. Ct. App. 2003).

Father was properly given a credit for his overpayment of child care expenses where he tendered evidence proving that a substantial amount of the allocated child care expenses had not been incurred; consequently, he was entitled to be repaid the excess funds he had provided. Nosarzewski v. Nosarzewski, 375 S.W.3d 820, 2012 Ky. App. LEXIS 135 (Ky. Ct. App. 2012).

17.Disregard of Former Agreement.

Since once an award of child support entered pursuant to the terms of a separation agreement under KRS 403.280 is reopened for modification, the child support must be set anew pursuant to KRS 403.210 et seq., and in reaching its decision the court is to consider both the changes in finances of both parents as well as the needs of the child, it was proper for the court to disregard the prior agreement of the parties as to the amount of child support payable by the husband in deciding to raise that amount. Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

Modification of a father’s child support obligation was vacated because (1) a prior court established that obligation at $0, so the mother’s assignment of the right to child support to the Cabinet for Health and Family Services (CHFS) only assigned a right to seek modification, (2) CHFS’ complaint did not comply with a procedural rule by demanding that the court establish a child support obligation, (3) the court in which the complaint was filed discounted the prior decree, and, (4) while any objection to the subsequent court as an improper forum was waived, that court did not recognize the prior decree as establishing the father’s initial obligation and did not find if the facts justified modification of the initial obligation. Martin v. Commonwealth Cabinet, 583 S.W.3d 12, 2019 Ky. App. LEXIS 86 (Ky. Ct. App. 2019).

18.Interest on Support Arrearages.

As an obligor’s past due payments for child support and maintenance become vested when due, and each payment is a fixed and liquidated debt which a court has no power to modify, the obligee is entitled to prejudgment interest as a matter of law from the date that each payment was due. Pursley v. Pursley, 144 S.W.3d 820, 2004 Ky. LEXIS 225 ( Ky. 2004 ).

Where the record indicates that, at the time they entered into an agreement regarding child support, a child’s parents were aware of the child support guideline calculations and were represented by counsel, the family court, under KRS 403.211(3)(f), is permitted to deviate from the child support guidelines. Where such an agreement has been made, it is not an abuse of discretion for the family court to denying a motion to modify child support on the basis of the parties’ agreement. Cabinet v. Bowman, 2010 Ky. App. LEXIS 123 (Ky. Ct. App. July 16, 2010).

Child support guidelines were inapplicable, KRS 403.211(3)(e) and (g), because the parties’ combined monthly gross income exceeded the uppermost level of the child support guidelines rendering application of the guidelines inappropriate, and the familial circumstances were of an extraordinary nature rendering application of the child support guidelines unjust; as the child support guidelines were inapplicable, the rebuttable presumption found in KRS 403.213(2) concerning modification of child support was inapplicable, and upon remand, the family court had to consider the father’s motions to modify child support in accordance with KRS 403.213(1). Dudgeon v. Dudgeon, 318 S.W.3d 106, 2010 Ky. App. LEXIS 136 (Ky. Ct. App. 2010).

Trial court erred when it terminated a parent’s child support obligations, in part, because the parent bought clothes for the children, because the clothing expenses did not represent a substantial shift in expenses; the family court’s decision to terminate all of the parent’s child support was improper, unfair, and difficult to reconcile with public policy. Jones v. Hammond, 329 S.W.3d 331, 2010 Ky. App. LEXIS 151 (Ky. Ct. App. 2010).

Trial court was permitted under KRS 403.211(2) and (3) to deviate from the child support guidelines upon finding that the application of the guidelines would be unjust or inappropriate. In the wife and husband’s divorce case, the trial court specifically set out its reasons for deviating from the child support guidelines, and the evidence supported its conclusion that the parties’ shared-parenting schedule and resulting relatively equal division of physical custody was a valid ground for deviating from the guidelines. McGregor v. McGregor, 334 S.W.3d 113, 2011 Ky. App. LEXIS 30 (Ky. Ct. App. 2011).

19.Res Judicata.

Because the child was not a party to either the divorce or divorce decree, where both mother and father claimed there were no children and that mother was not pregnant, or the initial paternity action brought by mother, which was dismissed, the circuit court erred in reversing the finding of paternity and order of child support brought on behalf of the child and case was remanded for reinstatement of award. Commonwealth ex rel. Hansard v. Shackleford, 908 S.W.2d 671, 1995 Ky. App. LEXIS 188 (Ky. Ct. App. 1995).

Parent receiving the credit under KRS 403.211(15) is to be the non-custodial disabled parent with the child support obligation. Therefore, a mother paying child support was not entitled to a credit for Social Security disability benefits that were paid to a custodial father. Artrip v. Noe, 311 S.W.3d 229, 2010 Ky. LEXIS 81 ( Ky. 2010 ).

20.Child Care Costs.

Because the children’s grandfather incurred costs related to gasoline when he drove the children to and from school, the mother had to pay her niece and another babysitter to care for the children due to the grandfather having medical issues, and she introduced into evidence a worksheet detailing her childcare expenses, under KRS 403.211(6), the father had to pay his share of those costs. McIntosh v. Landrum, 377 S.W.3d 574, 2012 Ky. App. LEXIS 160 (Ky. Ct. App. 2012).

Mother was reimbursed for respite care as the father’s missed parenting time caused the mother to sometimes have to pay for extra childcare herself for the parties’ autistic son, who required constant supervision, and their daughter during times when she should not have had to. McIntosh v. Landrum, 377 S.W.3d 574, 2012 Ky. App. LEXIS 160 (Ky. Ct. App. 2012).

Statute requires the trial court to treat child-care costs in the same manner as support set under the guidelines; in this case, the trial court deviated from the guidelines based on the equal parenting time that each had with the children, and the trial court also had the discretion to deviate from a proportionate division of child care expenses, and as nothing in the trial court’s decision was unjust or unreasonable, no abuse of discretion was found. Keith v. Keith, 556 S.W.3d 10, 2018 Ky. App. LEXIS 204 (Ky. Ct. App. 2018).

21.Parenting Time.

If the court finds that the time a parent spends with a child results in unjust or inappropriate child support, this section requires a written finding about why the court is deviating from the guidelines amount. McFelia v. McFelia, 406 S.W.3d 838, 2013 Ky. LEXIS 372 ( Ky. 2013 ).

While a trial court may take into account the parents’ visitation or time-sharing arrangement in deciding the amount of child support to be paid under the guidelines, it is not mandatory. McFelia v. McFelia, 406 S.W.3d 838, 2013 Ky. LEXIS 372 ( Ky. 2013 ).

Where the trial court was aware of the amount of time the children spent with their father, the court’s failure to factor time-sharing into the child support decision under the guidelines was not error. The court was not required to sua sponte raise this issue unless it found the time spent with the father resulted in unjust or inappropriate child support. McFelia v. McFelia, 406 S.W.3d 838, 2013 Ky. LEXIS 372 ( Ky. 2013 ).

Cited in:

Wiegand v. Wiegand, 862 S.W.2d 336, 1993 Ky. App. LEXIS 120 (Ky. Ct. App. 1993); Clary v. Clary, 54 S.W.3d 568, 2001 Ky. App. LEXIS 696 (Ky. Ct. App. 2001); Campbell v. Campbell, — S.W.3d —, 2004 Ky. App. LEXIS 89 (Ky. Ct. App. 2004); Seay v. Seay, 404 S.W.3d 215, 2013 Ky. App. LEXIS 102 (Ky. Ct. App. 2013); Ciampa v. Ciampa, 415 S.W.3d 97, 2013 Ky. App. LEXIS 128 (Ky. Ct. App. 2013).

Opinions of Attorney General.

The language of KRS 205.796 and KRS 403.211(11) is clear on its face: they proscribe disclosure of any information received or transmitted in cases administered by the Cabinet, notwithstanding the fact that some of that information is accessible through court records, unless the requester can demonstrate that he or she otherwise qualifies for access to the records under KRS 205.175 or another provision of KRS Chapter 205. The Cabinet is strictly prohibited by the language of these provisions from disclosing the information in an Open Records request. OAG 03-ORD-90.

Research References and Practice Aids

Kentucky Bench & Bar.

Crocker, Current Issues in Child Support and the Use of Child Support Guidelines, Vol. 57, No. 2, Spring 1993 Ky. Bench & B. 9.

Underwood, More Confessions of an Ethics Chairman, Vol. 59, No. 3, Summer 1995 Ky. Bench & B. 32.

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Notes, House, Awarding Child Support Against the Impoverished Parent: Straying from Statutory Guidelines and Using SSI in Setting the Amount, 83 Ky. L.J. 681 (1994-95).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Bartlett, Setting Child Support for the Low Income and High Income Families in Kentucky, 25 N. Ky. L. Rev. 2 (1998).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit in Support of Motion for Qualified Medical Child Support Order, Form 263.17.

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Qualified Medical Child Support Order, Form 263.16.

Caldwell’s Kentucky Form Book, 5th Ed., Order for Qualified Medical Child Support, Form 263.18.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Child Support — Child Born Out of Wedlock, Form 263.23.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Child Support, § 263.00.

Caldwell’s Kentucky Form Book, 5th Ed., Worksheet for Monthly Child Support Obligation Exception (CS — 71.1), Form 263.02.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.3.

403.212. Child support guidelines — Terms to be applied in calculations — Table.

  1. The following provisions and child support table shall be the child support guidelines established for the Commonwealth of Kentucky.
  2. For the purposes of the child support guidelines:
    1. “Income” means actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed;
    2. “Gross income” includes income from any source, except as excluded in this subsection, and includes but is not limited to income from salaries, wages, retirement and pension funds, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, Supplemental Security Income (SSI), gifts, prizes, and alimony or maintenance received. Specifically excluded are benefits received from means-tested public assistance programs, including but not limited to public assistance as defined under Title IV-A of the Federal Social Security Act, and food stamps;
    3. For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, “gross income” means gross receipts minus ordinary and necessary expenses required for self-employment or business operation. Straight-line depreciation, using Internal Revenue Service (IRS) guidelines, shall be the only allowable method of calculating depreciation expense in determining gross income. Specifically excluded from ordinary and necessary expenses for purposes of this guideline shall be investment tax credits or any other business expenses inappropriate for determining gross income for purposes of calculating child support. Income and expenses from self-employment or operation of a business shall be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. In most cases, this amount will differ from a determination of business income for tax purposes. Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business or personal use of business property or payments of expenses by a business, shall be counted as income if they are significant and reduce personal living expenses such as a company or business car, free housing, reimbursed meals, or club dues;
    4. “Self-support reserve” means a low-income adjustment amount to the obligated parent of nine hundred fifteen dollars ($915) per month that considers the subsistence needs of the parent with a limited ability to pay in accordance with 45 C.F.R. sec. 302.56(c)(1)(ii), and as applied under subsection (3) of this section;
      1. If there is a finding that a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a finding of voluntary unemployment or underemployment and a determination of potential income shall not be made for a parent who is incarcerated, physically or mentally incapacitated, or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility; (e) 1. If there is a finding that a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a finding of voluntary unemployment or underemployment and a determination of potential income shall not be made for a parent who is incarcerated, physically or mentally incapacitated, or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility;
      2. A court may find a parent is voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation; and
      3. Imputation of potential income, when applicable, shall include consideration of the following circumstances of the parents, to the extent known:
        1. Assets and residence;
        2. Employment, earning history, and job skills;
        3. Educational level, literacy, age, health, and criminal record that could impair the ability to gain or continue employment;
        4. Record of seeking work;
        5. Local labor market, including availability of employment for which the parent may be qualified and employable;
        6. Prevailing earnings in the local labor market; and
        7. Other relevant background factors, including employment barriers;
    5. “Imputed child support obligation” means the amount of child support the parent would be required to pay from application of the child support guidelines;
    6. Income statements of the parents shall be verified by documentation of both current and past income. Suitable documentation shall include, but shall not be limited to, income tax returns, paystubs, employer statements, or receipts and expenses if self-employed;
    7. “Combined monthly adjusted parental gross income” means the combined monthly gross incomes of both parents, less any of the following payments made by the parent:
      1. The amount of pre-existing orders for current maintenance for prior spouses to the extent payment is actually made and the amount of current maintenance, if any, ordered paid in the proceeding before the court;
      2. The amount of pre-existing orders of current child support for prior-born children to the extent payment is actually made under those orders; and
      3. A deduction for the support to the extent payment is made, if a parent is legally responsible for and is actually providing support for other prior- born children who are not the subject of a particular proceeding. If the prior-born children reside with that parent, an “imputed child support obligation” shall be allowed in the amount which would result from application of the guidelines for the support of the prior-born children; and
    8. “Split custody arrangement” means a situation where each parent is the residential custodian for one (1) or more children for whom the parents share a joint legal responsibility.
    1. Except as provided in paragraph (b) of this subsection, the child support obligation set forth in the child support guidelines table shall be divided between the parents in proportion to their combined monthly adjusted parental gross income. (3) (a) Except as provided in paragraph (b) of this subsection, the child support obligation set forth in the child support guidelines table shall be divided between the parents in proportion to their combined monthly adjusted parental gross income.
    2. If the monthly adjusted gross income of the obligated parent and the number of children for whom support is being determined fall within the following defined areas, which represent the self-support reserve, the basic child support obligation shall be calculated by using the monthly adjusted gross income of the obligated parent only to provide the obligated parent with the self-support reserve:
      1. Equal to or less than one thousand one hundred dollars ($1,100) with one (1) or more children;
      2. Equal to or less than one thousand three hundred dollars ($1,300) with two (2) or more children;
      3. Equal to or less than one thousand four hundred dollars ($1,400) with three (3) or more children;
      4. Equal to or less than one thousand five hundred dollars ($1,500) with four (4) or more children; or
      5. Equal to or less than one thousand six hundred dollars ($1,600) with six (6) or more children.
  3. The child support obligation shall be the appropriate amount for the number of children in the table for whom the parents share a joint legal responsibility. The minimum amount of child support shall be sixty dollars ($60) per month.
  4. The court may use its judicial discretion in determining child support in circumstances where combined adjusted parental gross income exceeds the uppermost levels of the guideline table.
  5. The child support obligation in a split custody arrangement shall be calculated in the following manner:
    1. Two (2) separate child support obligation worksheets shall be prepared, one (1) for each household, using the number of children born of the relationship in each separate household, rather than the total number of children born of the relationship.
    2. The parent with the greater monthly obligation amount shall pay the difference between the obligation amounts, as determined by the worksheets, to the other parent.
  6. The child support guidelines table is as follows:

COMBINED MONTHLY ADJUSTED PARENTAL GROSS INCOME ONE CHILD TWO CHILDREN THREE FOUR FIVE SIX OR MORE $0 $60 $60 $60 $60 $60 $60 100 60 60 60 60 60 60 200 60 60 60 60 60 60 300 60 60 60 60 60 60 400 60 60 60 60 60 60 500 60 60 60 60 60 60 600 60 60 60 60 60 60 700 60 60 60 60 60 60 800 60 60 60 60 60 60 900 60 60 60 60 60 60 1,000 85 85 85 85 85 85 1,100 148 150 152 154 155 157 1,200 200 231 234 237 239 242 1,300 216 312 316 320 323 327 1,400 231 339 398 403 407 412 1,500 247 362 437 486 491 497 1,600 262 384 464 518 570 582 1,700 277 406 491 548 603 655 1,800 292 428 517 578 635 691 1,900 307 450 544 607 668 726 2,000 322 472 570 637 701 762 2,100 337 494 597 667 734 797 2,200 352 516 624 697 766 833 2,300 367 538 650 726 799 869 2,400 382 560 677 756 832 904 2,500 397 582 704 786 865 940 2,600 412 604 730 816 897 975 2,700 427 626 757 845 930 1,011 2,800 442 648 783 875 963 1,046 2,900 457 670 810 905 995 1,082 3,000 472 692 837 935 1,028 1,118 3,100 487 714 863 964 1,061 1,153 3,200 502 737 890 994 1,094 1,189 3,300 517 759 917 1,024 1,126 1,224 3,400 532 781 943 1,054 1,159 1,260 3,500 547 803 970 1,083 1,192 1,295 3,600 562 825 997 1,113 1,224 1,331 3,700 577 847 1,023 1,143 1,257 1,367 3,800 592 869 1,050 1,173 1,290 1,402 3,900 607 891 1,076 1,202 1,323 1,438 4,000 621 912 1,102 1,230 1,353 1,471 4,100 634 931 1,125 1,256 1,382 1,502 4,200 647 950 1,148 1,282 1,410 1,533 4,300 660 969 1,171 1,308 1,439 1,564 4,400 673 988 1,194 1,334 1,467 1,595 4,500 686 1,007 1,217 1,359 1,495 1,625 4,600 699 1,026 1,240 1,385 1,524 1,656 4,700 712 1,045 1,263 1,411 1,552 1,687 4,800 725 1,064 1,286 1,437 1,580 1,718 4,900 738 1,084 1,309 1,463 1,609 1,749 5,000 751 1,103 1,332 1,488 1,637 1,780 5,100 764 1,122 1,356 1,514 1,666 1,810 5,200 777 1,141 1,379 1,540 1,694 1,841 5,300 790 1,160 1,402 1,566 1,722 1,872 5,400 799 1,172 1,415 1,581 1,739 1,890 5,500 805 1,177 1,419 1,585 1,744 1,896 5,600 810 1,181 1,423 1,590 1,749 1,901 5,700 815 1,186 1,427 1,594 1,753 1,906 5,800 820 1,191 1,431 1,598 1,758 1,911 5,900 825 1,195 1,435 1,603 1,763 1,916 6,000 831 1,200 1,439 1,607 1,768 1,922 6,100 837 1,208 1,449 1,618 1,780 1,935 6,200 844 1,217 1,459 1,629 1,792 1,948 6,300 851 1,226 1,469 1,641 1,805 1,962 6,400 858 1,234 1,479 1,652 1,817 1,975 6,500 865 1,243 1,489 1,663 1,829 1,988 6,600 871 1,251 1,499 1,674 1,841 2,002 6,700 881 1,263 1,513 1,690 1,859 2,021 6,800 892 1,278 1,530 1,709 1,880 2,044 6,900 903 1,292 1,548 1,729 1,902 2,067 7,000 914 1,306 1,565 1,748 1,923 2,090 7,100 925 1,320 1,582 1,767 1,944 2,113 7,200 935 1,335 1,600 1,787 1,965 2,136 7,300 946 1,348 1,616 1,805 1,986 2,159 7,400 954 1,360 1,630 1,820 2,003 2,177 7,500 962 1,372 1,643 1,836 2,019 2,195 7,600 969 1,384 1,657 1,851 2,036 2,213 7,700 977 1,396 1,670 1,866 2,052 2,231 7,800 984 1,407 1,683 1,880 2,068 2,248 7,900 991 1,419 1,696 1,895 2,084 2,266 8,000 996 1,426 1,704 1,903 2,094 2,276 8,100 1,000 1,429 1,709 1,908 2,099 2,282 8,200 1,004 1,433 1,713 1,914 2,105 2,288 8,300 1,008 1,437 1,718 1,919 2,110 2,294 8,400 1,012 1,441 1,722 1,924 2,116 2,300 8,500 1,016 1,444 1,727 1,929 2,122 2,306 8,600 1,020 1,448 1,731 1,934 2,127 2,312 8,700 1,026 1,456 1,740 1,944 2,138 2,324 8,800 1,033 1,464 1,749 1,953 2,149 2,336 8,900 1,039 1,472 1,758 1,963 2,160 2,347 9,000 1,046 1,480 1,766 1,973 2,170 2,359 9,100 1,052 1,488 1,775 1,983 2,181 2,371 9,200 1,059 1,496 1,784 1,993 2,192 2,382 9,300 1,065 1,502 1,792 2,002 2,202 2,393 9,400 1,070 1,507 1,799 2,010 2,211 2,403 9,500 1,075 1,511 1,807 2,018 2,220 2,413 9,600 1,080 1,516 1,814 2,026 2,229 2,423 9,700 1,085 1,520 1,822 2,035 2,238 2,433 9,800 1,090 1,524 1,829 2,043 2,247 2,443 9,900 1,094 1,529 1,836 2,051 2,256 2,453 10,000 1,099 1,533 1,844 2,059 2,265 2,463 10,100 1,104 1,538 1,851 2,068 2,275 2,472 10,200 1,109 1,542 1,859 2,076 2,284 2,482 10,300 1,115 1,549 1,867 2,086 2,294 2,494 10,400 1,123 1,560 1,878 2,098 2,308 2,509 10,500 1,130 1,571 1,889 2,110 2,321 2,523 10,600 1,137 1,582 1,900 2,123 2,335 2,538 10,700 1,145 1,593 1,911 2,135 2,349 2,553 10,800 1,152 1,604 1,922 2,147 2,362 2,568 10,900 1,159 1,615 1,933 2,160 2,376 2,582 11,000 1,167 1,626 1,944 2,172 2,389 2,597 11,100 1,174 1,637 1,956 2,185 2,403 2,612 11,200 1,182 1,649 1,968 2,198 2,418 2,628 11,300 1,191 1,661 1,980 2,212 2,433 2,644 11,400 1,199 1,673 1,992 2,225 2,448 2,660 11,500 1,207 1,685 2,004 2,239 2,462 2,677 11,600 1,215 1,695 2,016 2,252 2,477 2,693 11,700 1,222 1,705 2,029 2,266 2,493 2,710 11,800 1,229 1,714 2,041 2,280 2,508 2,726 11,900 1,237 1,723 2,054 2,294 2,523 2,743 12,000 1,244 1,732 2,066 2,308 2,539 2,759 12,100 1,252 1,742 2,078 2,322 2,554 2,776 12,200 1,259 1,751 2,091 2,336 2,569 2,793 12,300 1,267 1,760 2,103 2,349 2,584 2,809 12,400 1,274 1,769 2,116 2,363 2,600 2,826 12,500 1,282 1,778 2,128 2,377 2,615 2,842 12,600 1,289 1,788 2,141 2,391 2,630 2,859 12,700 1,296 1,797 2,153 2,405 2,645 2,876 12,800 1,304 1,806 2,165 2,419 2,661 2,892 12,900 1,311 1,815 2,178 2,433 2,676 2,909 13,000 1,319 1,825 2,190 2,447 2,691 2,925 13,100 1,326 1,834 2,203 2,461 2,707 2,942 13,200 1,334 1,843 2,215 2,474 2,722 2,959 13,300 1,341 1,852 2,228 2,488 2,737 2,975 13,400 1,348 1,861 2,238 2,500 2,750 2,990 13,500 1,353 1,868 2,247 2,510 2,761 3,001 13,600 1,359 1,875 2,255 2,519 2,771 3,012 13,700 1,364 1,882 2,264 2,529 2,781 3,023 13,800 1,370 1,889 2,272 2,538 2,792 3,035 13,900 1,375 1,896 2,281 2,547 2,802 3,046 14,000 1,381 1,903 2,289 2,557 2,812 3,057 14,100 1,386 1,910 2,297 2,566 2,822 3,068 14,200 1,391 1,916 2,304 2,574 2,831 3,078 14,300 1,396 1,922 2,312 2,582 2,841 3,088 14,400 1,401 1,929 2,319 2,591 2,850 3,098 14,500 1,406 1,935 2,327 2,599 2,859 3,108 14,600 1,410 1,941 2,334 2,607 2,868 3,118 14,700 1,415 1,947 2,342 2,616 2,877 3,128 14,800 1,420 1,954 2,349 2,624 2,886 3,138 14,900 1,425 1,960 2,357 2,632 2,896 3,147 15,000 1,430 1,966 2,364 2,641 2,905 3,157 15,100 1,435 1,972 2,371 2,649 2,914 3,167 15,200 1,440 1,978 2,379 2,657 2,923 3,177 15,300 1,444 1,985 2,386 2,666 2,932 3,187 15,400 1,449 1,991 2,394 2,674 2,941 3,197 15,500 1,454 1,997 2,401 2,682 2,950 3,207 15,600 1,459 2,003 2,409 2,691 2,960 3,217 15,700 1,464 2,010 2,416 2,699 2,969 3,227 15,800 1,469 2,016 2,424 2,707 2,978 3,237 15,900 1,474 2,022 2,431 2,715 2,987 3,247 16,000 1,478 2,028 2,439 2,724 2,996 3,257 16,100 1,484 2,035 2,445 2,732 3,005 3,266 16,200 1,490 2,041 2,452 2,739 3,013 3,275 16,300 1,495 2,047 2,459 2,747 3,022 3,285 16,400 1,501 2,053 2,466 2,755 3,030 3,294 16,500 1,506 2,059 2,473 2,763 3,039 3,303 16,600 1,512 2,065 2,480 2,770 3,047 3,313 16,700 1,518 2,071 2,487 2,778 3,056 3,322 16,800 1,523 2,077 2,494 2,786 3,065 3,331 16,900 1,529 2,083 2,501 2,794 3,073 3,340 17,000 1,534 2,089 2,508 2,801 3,082 3,350 17,100 1,540 2,095 2,515 2,809 3,090 3,359 17,200 1,545 2,102 2,522 2,817 3,099 3,368 17,300 1,551 2,108 2,529 2,825 3,107 3,378 17,400 1,557 2,114 2,536 2,832 3,116 3,387 17,500 1,562 2,120 2,543 2,840 3,124 3,396 17,600 1,568 2,126 2,550 2,848 3,133 3,405 17,700 1,573 2,132 2,557 2,856 3,141 3,415 17,800 1,579 2,138 2,563 2,863 3,149 3,423 17,900 1,584 2,144 2,570 2,870 3,157 3,432 18,000 1,589 2,149 2,576 2,878 3,166 3,441 18,100 1,595 2,155 2,583 2,885 3,174 3,450 18,200 1,600 2,161 2,590 2,893 3,182 3,459 18,300 1,605 2,167 2,596 2,900 3,190 3,467 18,400 1,611 2,173 2,603 2,907 3,198 3,476 18,500 1,616 2,178 2,609 2,915 3,206 3,485 18,600 1,621 2,184 2,616 2,922 3,214 3,494 18,700 1,627 2,190 2,623 2,929 3,222 3,503 18,800 1,632 2,196 2,629 2,937 3,231 3,512 18,900 1,637 2,202 2,636 2,944 3,239 3,520 19,000 1,642 2,207 2,642 2,952 3,247 3,529 19,100 1,648 2,213 2,649 2,959 3,255 3,538 19,200 1,653 2,219 2,656 2,966 3,263 3,547 19,300 1,658 2,225 2,662 2,974 3,271 3,556 19,400 1,664 2,231 2,669 2,981 3,279 3,565 19,500 1,669 2,236 2,675 2,989 3,287 3,573 19,600 1,674 2,242 2,682 2,996 3,295 3,582 19,700 1,680 2,248 2,689 3,003 3,304 3,591 19,800 1,685 2,254 2,695 3,011 3,312 3,600 19,900 1,690 2,260 2,702 3,018 3,320 3,609 20,000 1,696 2,265 2,709 3,025 3,328 3,617 20,100 1,701 2,271 2,715 3,033 3,336 3,626 20,200 1,706 2,277 2,722 3,040 3,344 3,635 20,300 1,710 2,282 2,728 3,047 3,352 3,643 20,400 1,713 2,287 2,733 3,053 3,358 3,651 20,500 1,717 2,292 2,739 3,059 3,365 3,658 20,600 1,720 2,297 2,745 3,066 3,372 3,666 20,700 1,723 2,302 2,750 3,072 3,379 3,673 20,800 1,726 2,307 2,756 3,078 3,386 3,681 20,900 1,730 2,313 2,761 3,084 3,393 3,688 21,000 1,733 2,318 2,767 3,091 3,400 3,695 21,100 1,736 2,323 2,773 3,097 3,407 3,703 21,200 1,739 2,328 2,778 3,103 3,413 3,710 21,300 1,743 2,333 2,784 3,109 3,420 3,718 21,400 1,746 2,338 2,789 3,116 3,427 3,725 21,500 1,749 2,343 2,795 3,122 3,434 3,733 21,600 1,752 2,348 2,801 3,128 3,441 3,740 21,700 1,756 2,353 2,806 3,134 3,448 3,748 21,800 1,759 2,358 2,812 3,141 3,455 3,755 21,900 1,762 2,363 2,817 3,147 3,462 3,763 22,000 1,765 2,368 2,823 3,153 3,469 3,770 22,100 1,769 2,373 2,829 3,160 3,475 3,778 22,200 1,772 2,378 2,834 3,166 3,482 3,785 22,300 1,775 2,383 2,840 3,172 3,489 3,793 22,400 1,778 2,388 2,845 3,178 3,496 3,800 22,500 1,782 2,393 2,851 3,185 3,503 3,808 22,600 1,785 2,398 2,857 3,191 3,510 3,815 22,700 1,788 2,403 2,862 3,197 3,517 3,823 22,800 1,791 2,408 2,868 3,203 3,524 3,830 22,900 1,795 2,413 2,873 3,210 3,531 3,838 23,000 1,798 2,418 2,879 3,216 3,537 3,845 23,100 1,801 2,423 2,885 3,222 3,544 3,853 23,200 1,804 2,429 2,890 3,228 3,551 3,860 23,300 1,808 2,434 2,896 3,235 3,558 3,868 23,400 1,811 2,439 2,901 3,241 3,565 3,875 23,500 1,814 2,444 2,907 3,247 3,572 3,883 23,600 1,817 2,449 2,913 3,253 3,579 3,890 23,700 1,821 2,454 2,918 3,260 3,586 3,898 23,800 1,824 2,459 2,924 3,266 3,593 3,905 23,900 1,827 2,464 2,929 3,272 3,599 3,913 24,000 1,830 2,469 2,935 3,278 3,606 3,920 24,100 1,834 2,474 2,941 3,285 3,613 3,928 24,200 1,837 2,479 2,946 3,291 3,620 3,935 24,300 1,840 2,484 2,952 3,297 3,627 3,943 24,400 1,843 2,489 2,957 3,304 3,634 3,950 24,500 1,847 2,494 2,963 3,310 3,641 3,957 24,600 1,850 2,499 2,969 3,316 3,648 3,965 24,700 1,853 2,504 2,974 3,322 3,655 3,972 24,800 1,856 2,509 2,980 3,329 3,661 3,980 24,900 1,860 2,514 2,986 3,335 3,668 3,987 25,000 1,863 2,519 2,991 3,341 3,675 3,995 25,100 1,866 2,524 2,997 3,347 3,682 4,002 25,200 1,869 2,529 3,002 3,354 3,689 4,010 25,300 1,873 2,534 3,008 3,360 3,696 4,017 25,400 1,876 2,540 3,014 3,366 3,703 4,025 25,500 1,879 2,545 3,019 3,372 3,710 4,032 25,600 1,882 2,550 3,025 3,379 3,716 4,040 25,700 1,886 2,555 3,030 3,385 3,723 4,047 25,800 1,889 2,560 3,036 3,391 3,730 4,055 25,900 1,892 2,565 3,042 3,397 3,737 4,062 26,000 1,895 2,570 3,047 3,404 3,744 4,070 26,100 1,899 2,575 3,053 3,410 3,751 4,077 26,200 1,902 2,580 3,058 3,416 3,758 4,085 26,300 1,905 2,585 3,064 3,422 3,765 4,092 26,400 1,908 2,590 3,070 3,429 3,772 4,100 26,500 1,912 2,595 3,075 3,435 3,778 4,107 26,600 1,915 2,600 3,081 3,441 3,785 4,115 26,700 1,918 2,605 3,086 3,447 3,792 4,122 26,800 1,921 2,610 3,092 3,454 3,799 4,130 26,900 1,925 2,615 3,098 3,460 3,806 4,137 27,000 1,928 2,620 3,103 3,466 3,813 4,145 27,100 1,931 2,625 3,109 3,473 3,820 4,152 27,200 1,934 2,630 3,114 3,479 3,827 4,160 27,300 1,938 2,635 3,120 3,485 3,834 4,167 27,400 1,941 2,640 3,126 3,491 3,840 4,175 27,500 1,944 2,645 3,131 3,498 3,847 4,182 27,600 1,948 2,650 3,137 3,504 3,854 4,190 27,700 1,951 2,656 3,142 3,510 3,861 4,197 27,800 1,954 2,661 3,148 3,516 3,868 4,205 27,900 1,957 2,666 3,154 3,523 3,875 4,212 28,000 1,961 2,671 3,159 3,529 3,882 4,219 28,100 1,964 2,676 3,165 3,535 3,889 4,227 28,200 1,967 2,681 3,170 3,541 3,896 4,234 28,300 1,970 2,686 3,176 3,548 3,902 4,242 28,400 1,972 2,689 3,179 3,551 3,907 4,247 28,500 1,974 2,691 3,182 3,555 3,911 4,251 28,600 1,976 2,694 3,185 3,558 3,914 4,255 28,700 1,978 2,696 3,188 3,561 3,918 4,259 28,800 1,980 2,699 3,191 3,565 3,922 4,263 28,900 1,982 2,701 3,194 3,568 3,926 4,268 29,000 1,984 2,704 3,197 3,571 3,930 4,272 29,100 1,986 2,707 3,200 3,575 3,934 4,276 29,200 1,988 2,709 3,203 3,578 3,938 4,280 29,300 1,990 2,712 3,206 3,581 3,941 4,284 29,400 1,992 2,714 3,209 3,584 3,945 4,289 29,500 1,993 2,717 3,212 3,588 3,949 4,293 29,600 1,995 2,719 3,215 3,591 3,953 4,297 29,700 1,997 2,722 3,218 3,594 3,957 4,301 29,800 1,999 2,724 3,221 3,598 3,961 4,305 29,900 2,001 2,727 3,224 3,601 3,965 4,310 30,000 2,003 2,730 3,227 3,604 3,968 4,314

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History. Enact. Acts 1990, ch. 418, § 3, effective July 13, 1990; 1994, ch. 330, § 11, effective July 15, 1994; 1996, ch. 365, § 6, effective July 15, 1996; 1998, ch. 100, § 8, effective July 15, 1998; 1998, ch. 255, § 20, effective July 15, 1998; 2000, ch. 430, § 9, effective July 14, 2000; 2019 ch. 162, § 2, effective June 27, 2019; 2021 ch. 47, § 2, effective June 29, 2021.

Compiler’s Notes.

Title IV-A of the Federal Social Security Act, referred to in subdivision (2)(b), is codified as 42 USCS § 601 et seq.

NOTES TO DECISIONS

Analysis

1.Voluntarily Underemployed.

A finding of bad faith is required under this section to find an individual to be voluntarily underemployed even though the statutory language makes no mention of a bad faith requirement. McKinney v. McKinney, 813 S.W.2d 828, 1991 Ky. App. LEXIS 115 (Ky. Ct. App. 1991).

The Circuit Court erred in concluding that a father was entitled to a reduction of his child support obligation as a matter of law, notwithstanding that he was still employed on a full-time basis, where (1) for a considerable period prior to the parties’ separation, the father had a full-time job and a second part-time job, and (2) the father’s income decreased because he voluntarily quit his part-time job and because he was not working as much overtime as before at his primary job; on remand, the Circuit Court would be required to make explicit findings concerning the circumstances surrounding the father’s reduction in his income and to determine whether to impute income to him. Gossett v. Gossett, 32 S.W.3d 109, 2000 Ky. App. LEXIS 120 (Ky. Ct. App. 2000).

Although the evidence might support a finding that the husband was voluntarily underemployed, the trial court erred in basing its finding that a husband was underemployed for purposes of determining child support under KRS 403.212(2)(d) on federal statistics where: (1) the certified public accountant frequently bartered accounting work in exchange for goods and services, (2) the husband purposely limited his accounting work during the marriage to spend more time with the children, (3) there was no evidence offered concerning comparable wages earned by similarly qualified individuals in the county or the region, and (4) tax records reflected that the husband’s primary income came from his gas wells. Polley v. Allen, 132 S.W.3d 223, 2004 Ky. App. LEXIS 83 (Ky. Ct. App. 2004).

Although a trial court had the authority to impute income under KRS 403.212(2)(d), no findings were made that husband was voluntarily underemployed. Other than generally stating that the imputed income was derived from the law practice, rental properties and capital gains, the trial court provided no explanation as to how it reached the support figure; without adequate factual findings, as required by CR 52.01, the trial court decision could not be meaningfully reviewed. McKinney v. McKinney, 257 S.W.3d 130, 2008 Ky. App. LEXIS 187 (Ky. Ct. App. 2008).

Trial court should have granted a CR 52.02 motion for additional fact findings. Although the trial court was authorized to impute income under KRS 403.212(2)(d), a general statement that the imputation was derived from a part time law practice, rental properties and capital gains was not an explanation of how a child support figure was reached; fact findings were essential to the judgment, and the decision to impute income could not be meaningfully reviewed. McKinney v. McKinney, 257 S.W.3d 130, 2008 Ky. App. LEXIS 187 (Ky. Ct. App. 2008).

While the trial court properly suspended a father’s sentencing for contempt so long as he made arrearage payments of $100 per week, the court erred in granting his motion to modify child support because he was voluntarily underemployed where he voluntarily engaged in conduct which he should have known would impair his ability to support his children, a result that was unfair and unsupported by sound legal principles, and the court lacked substantial evidence for its decision to reduce the father’s support child support payments to zero. Louisville R. Co. v. Masterson, 96 S.W. 534, 29 Ky. L. Rptr. 829 , 1906 Ky. LEXIS 347 (Ky. Ct. App. 1906).

2.Discretion of Court.

KRS 403.211(4) provides that the circumstances considered as extraordinary shall be determined by the court in its discretion and clearly the guidelines are not designed to cover all the possible scenarios in which divorcing parents find themselves; the legislature has not taken away the trial court’s broad discretion in ensuring that the needs of their children will continue to be met. Redmon v. Redmon, 823 S.W.2d 463, 1992 Ky. App. LEXIS 18 (Ky. Ct. App. 1992).

Where trial court sought to justify its decision by referring to the uncertain nature of father’s work, although that factor might properly have been taken into account in setting a schedule for payments (e.g. by having father make payments at one level when working and at another level when laid off, as was done by the trial court in a previous order), under the facts of this case, it was not an “extraordinary factor” justifying departure from the guidelines. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

Trial court’s determination that husband did not have additional income requiring an increase in his child support obligation as a result of free military housing being furnished to him was not an abuse of discretion. Pegler v. Pegler, 895 S.W.2d 580, 1995 Ky. App. LEXIS 26 (Ky. Ct. App. 1995).

Court’s refusal to require father to pay child support was not clearly erroneous where children resided with father 60% of the time and father, as primary custodian, had an ongoing obligation to maintain a residence for the children on a permanent basis, regardless of the amount of time that they spent with their mother. Brown v. Brown, 952 S.W.2d 707, 1997 Ky. App. LEXIS 95 (Ky. Ct. App. 1997).

Visitation is not a factor to be considered in setting an amount of child support. Dickens v. Dickens, 401 S.W.3d 489, 2013 Ky. App. LEXIS 79 (Ky. Ct. App. 2013).

3.Imputed Income.

The concept of imputed income did not apply where there was no evidence, or even a hint, that defendant/father committed the crimes for which he was serving time to avoid his child support obligation, although he certainly must have realized his conduct was inimical to the interest of his children. Redmon v. Redmon, 823 S.W.2d 463, 1992 Ky. App. LEXIS 18 (Ky. Ct. App. 1992).

KRS 403.212(2)(d) does not require a trial court to impute income to a parent who earns less than the amount which the occupational statistics indicate he should; rather, the trial court must consider the totality of the circumstances in deciding whether to impute income to a parent. Polley v. Allen, 132 S.W.3d 223, 2004 Ky. App. LEXIS 83 (Ky. Ct. App. 2004).

Where trial court noted that mother had quit a job paying $4.05 an hour to pursue her college courses, while subdivision (2)(d) of this section allows the trial court to consider a party’s potential income under some circumstances, there must be a showing of bad faith. Thus, the trial court erred by refusing to consider mother’s lack of income, or in imputing to mother $700 per month income, even though she did not actually make that much. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

State Supreme Court found that KRS 403.212(2)(f) imposed a mandatory obligation on parents to report and verify their income but that trial courts could consider evidence not provided in a parent’s statement of income when determining a parent’s child support obligation, and although the Supreme Court upheld the trial court’s decision to consider whether a wife had sources of income other than those the wife reported, it affirmed the intermediate appellate court’s judgment vacating the trial court’s judgment awarding neither the wife nor the wife’s husband child support because the record did not support the trial court’s judgment imputing income to the wife. Schoenbachler v. Minyard, 110 S.W.3d 776, 2003 Ky. LEXIS 82 ( Ky. 2003 ).

Record did not support imputing income to the wife, who mostly cleaned houses during the marriage. The imputation of income to the wife pursuant to KRS 403.212(2)(d) did not take adequately into account the prevailing job opportunities the wife confronted when the wife found it necessary to move, near the time of the divorce, from a county that had more opportunities to a county with far fewer opportunities or the wife’s very limited occupational qualifications. Gripshover v. Gripshover, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

Trial court in a divorce case could impute income to the wife for the purposes of awarding to the wife child support, pursuant to KRS 403.212(2)(d), and awarding maintenance under KRS 403.200 . The trial court made the relevant determinations only after taking into account the wife’s work history and the wife’s testimony concerning expected income before making its decisions. McGregor v. McGregor, 334 S.W.3d 113, 2011 Ky. App. LEXIS 30 (Ky. Ct. App. 2011).

In determining a father’s child support obligation, the family court erred in finding that he was underemployed and in imputing income to him under KRS 403.212(2)(d), absent evidence of the strength or nature of prevailing job opportunities in the community or the expected earnings levels. Hempel v. Hempel, 380 S.W.3d 549, 2012 Ky. App. LEXIS 184 (Ky. Ct. App. 2012).

In determining a father’s child support obligation, the family court erred in finding that he was underemployed and in imputing income to him under KRS 403.212(2)(d), absent evidence of the strength or nature of prevailing job opportunities in the community or the expected earnings levels. Hempel v. Hempel, 380 S.W.3d 549, 2012 Ky. App. LEXIS 184 (Ky. Ct. App. 2012).

It was not an abuse of discretion to impute income to a husband when entering a child support order because, while a downturn in the economy and the resulting decline in the fortune of the husband’s businesses occurred through no fault of the husband, it could not be said that the trial court’s factual determination that the husband was voluntarily underemployed was unsupported by substantial evidence, as (1) the evidence revealed the husband was an entrepreneur, businessman, and a lawyer who held several degrees, including a master’s degree in business administration and a juris doctorate, (2) the husband incorporated and successfully maintained three separate businesses, including a law practice, (3) the husband had the ability to earn a greater income if the husband chose to fully exercise the husband’s entrepreneurial and business skills and, (4) in light of the husband’s demonstrated past success in running the husband’s own businesses, the husband was capable of earning more than $19.00 per hour. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

It was not an abuse of discretion for a trial court to determine that a wife was not underemployed because (1) when the parties decided to have more children, by agreement, the wife left the wife’s job to stay home with the children, since which time the wife had not worked outside the home except to occasionally assist the husband, and (2) the wife testified the wife desired to return to the workforce and was currently in the process of searching for work. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

In a marital dissolution action, the trial court erred with respect to determining child support and maintenance by refusing to include additional gift income to the wife; the gift income from the wife’s parents in the amount of $3,700 per month should have been imputed to her pursuant to KRS 403.212(2)(b). Penner v. Penner, 411 S.W.3d 775, 2013 Ky. App. LEXIS 143 (Ky. Ct. App. 2013).

In calculating a husband’s child support obligation in a divorce action, the trial court did not err under KRS 403.212(2)(d) in imputing an income of $2,100 per month to the wife; the trial court was responsible for evaluating the parties’ credibility based on their testimony and other evidence. Maclean v. Middleton, 419 S.W.3d 755, 2014 Ky. App. LEXIS 3 (Ky. Ct. App. 2014).

When a grandfather was awarded custody of grandchildren, a child support order erred because minimum wage was imputed to the children's mother when the mother cared for children under three. Lambert v. Lambert, 475 S.W.3d 646, 2015 Ky. App. LEXIS 155 (Ky. Ct. App. 2015).

When a husband terminated the husband's employment during the pendency of a divorce proceeding and accepted lesser paying employment, the trial court did not err by concluding that the husband was voluntarily underemployed and, as a result, imputing to the husband a potential gross monthly income, which represented the amount which the husband earned at the husband's former employer, despite the fact that the husband's actual gross monthly income was a lesser amount. Duffy v. Duffy, 540 S.W.3d 821, 2018 Ky. App. LEXIS 39 (Ky. Ct. App. 2018).

Declining to impute income to the mother for gifts received from her parents was not error given the lack of evidence as to a car’s value or that the gifts from her parents were recurring. Layman v. Bohanon, 599 S.W.3d 423, 2020 Ky. LEXIS 71 ( Ky. 2020 ).

4.Assets of Noncustodial Parent.

The child support guidelines, which are exclusively tied to income, are not appropriate where the noncustodial parent has no income, but may have sufficient assets from which support can be obtained; therefore where incarcerated father did not claim to be indigent, nor did he state he had no property to satisfy the support obligation, his children should not have to bear additional deprivation in the form of a reduced standard of living if the father has property, or potential sources of assets, which could be liquidated to satisfy any support delinquency or arrearage. Redmon v. Redmon, 823 S.W.2d 463, 1992 Ky. App. LEXIS 18 (Ky. Ct. App. 1992).

Where in 1986 father made less than $5,000 but admitted that he earned approximately $30,000 per year in 1989 and 1990, and he admitted that he was earning at that level in 1991, and where he did not present any evidence to show that his future earnings were likely to vary significantly from the 1990 level, subdivision (2)(a) of this section must be read as creating a presumption that future income will be on a par with the worker’s most recent experience. The party who wants the trial court to use a different income level in applying the child support guidelines bears the burden of presenting evidence which would support the requested finding. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

5.Modification.

Although father indicated that future layoffs were likely, he indicated that such layoffs had also occurred in 1990. Thus, the Court of Appeals saw nothing to indicate a likelihood of lower earnings in the future; but modifications could be had as events warranted. Keplinger v. Keplinger, 839 S.W.2d 566, 1992 Ky. App. LEXIS 195 (Ky. Ct. App. 1992).

Where the father had overpaid the mother for day care expenses which were never incurred by the mother, and the mother had misled the father and the court regarding the day care expenses, the trial court had the authority to order mother to reimburse those costs to the father. Connelly v. Degott, 132 S.W.3d 871, 2003 Ky. App. LEXIS 29 (Ky. Ct. App. 2003).

Because a father failed to adequately preserve issues related to the recalculation and increase in his child support by failing to request the Family Court to make findings of fact relative to the support, the Court of Appeals was unable to review the father’s claim of error. Johnson v. Johnson, 232 S.W.3d 571, 2007 Ky. App. LEXIS 303 (Ky. Ct. App. 2007).

Although a father’s income had increased since a judgment of paternity was entered, KRS 403.212(5) was violated when the trial court arbitrarily increased a father’s child support obligation solely based on the father’s increased income without supportive evidence of an increase in the child’s reasonable needs. Bell v. Cartwright, 277 S.W.3d 631, 2009 Ky. App. LEXIS 6 (Ky. Ct. App. 2009).

This section does not express any intentionality, but merely lists the amount of child support to be paid when parties’ income is not outside the guidelines; therefore, a father’s argument that the intent of this section was not met when only a minimal reduction was ordered after another child reached the age of 18 was rejected. The trial court rejected some of the mother’s claimed expenses and considered the reasonable day-to-day needs of the child and the parents ability to pay before deciding on an appropriate amount of child support. Ciampa v. Ciampa, 415 S.W.3d 97, 2013 Ky. App. LEXIS 128 (Ky. Ct. App. 2013).

6.— Waiver of Statutory Requirement.

Parties to a separation agreement may waive a statutory requirement that the party moving for an increase in child support prove a material change in circumstances if it does not impair the rights of others; is not contrary to the public interest; and is expressly and voluntarily made. Giacalone v. Giacalone, 876 S.W.2d 616, 1994 Ky. App. LEXIS 17 (Ky. Ct. App. 1994).

7.Equal Physical Possession.

Child support may be ordered where the parties have equal physical possession of the children. Downey v. Rogers, 847 S.W.2d 63, 1993 Ky. App. LEXIS 18 (Ky. Ct. App. 1993), limited, Conley v. Conley, 2008 Ky. App. Unpub. LEXIS 975 (Ky. Ct. App. May 16, 2008).

8.Award.
9.— Not Excessive.

The trial court’s award of child support in the amount of $100 per week, maintenance of $500 per month, and $1500 towards attorney’s fees to wife with only eighth grade education was not excessive. Robbins v. Robbins, 849 S.W.2d 571, 1993 Ky. App. LEXIS 41 (Ky. Ct. App. 1993).

An upward modification of a father’s child support obligation was proper as the trial court did not abuse its discretion by basing its determination of the father’s gross income on something other than his 1997 taxable income since the father’s substantial deferral of business income at the end of 1997, which led directly to his year-end losses, was not a lasting circumstance and, thus, did not provide a proper basis for reducing his child-support obligation. Snow v. Snow, 24 S.W.3d 668, 2000 Ky. App. LEXIS 75 (Ky. Ct. App. 2000).

10.Source of Income.

Disabled parent whose sole means of income was supplementary security income (SSI) benefits was not required to pay child support absent other sufficient assets. Youngblood v. James, 883 S.W.2d 512, 1994 Ky. App. LEXIS 114 (Ky. Ct. App. 1994).

It was not error to add social security benefits received by child on account of noncustodial father’s disability as part of the income of the custodial parent. Miller v. Miller, 929 S.W.2d 202, 1996 Ky. App. LEXIS 147 (Ky. Ct. App. 1996).

Supplemental security income (SSI) benefits paid to a child because of his own disability may be considered as independent financial resources of the child in determining the parental support obligation and in determining whether application of the guidelines would be unjust or inappropriate as considering SSI in the child’s name is consistent with considering social security benefits in the parent’s gross income. The child’s independent benefits would merely be recognized in weighing the equities and fairness of the circumstances of the child and the parents. Barker v. Hill, 949 S.W.2d 896, 1997 Ky. App. LEXIS 70 (Ky. Ct. App. 1997).

Subsection (2)(b), which mandates inclusion of Supplemental Security Income (SSI) benefits in income computation for calculation of child support payments, does not conflict with 42 USCS § 407(a), an anti-attachment statute relating to SSI benefits. Commonwealth ex rel. Morris v. Morris, 984 S.W.2d 840, 1998 Ky. LEXIS 138 ( Ky. 1998 ).

Trial court did not err in including a payor parent’s share of capital gain from sale of a farm in the parent’s gross income for purposes of a motion to modify child support, but did err in prorating the capital gain over the parent’s remaining work life expectancy rather than including the amount as income in the year received. Clary v. Clary, 54 S.W.3d 568, 2001 Ky. App. LEXIS 696 (Ky. Ct. App. 2001).

In its child support calculation, the Family Court properly excluded from income, as a means-tested public assistance program under KRS 403.212(2)(b), the earned income tax credit (EIC) received by the mother because the EIC was a money grant to assist needy families, the amount of which decreased as the taxpayer’s earnings increased. Brausch v. Brausch, 265 S.W.3d 837, 2008 Ky. App. LEXIS 279 (Ky. Ct. App. 2008).

Where a mother received an additional child tax credit, the credit was not within the parameters of a means-tested public assistance program under KRS 403.212(2)(b) because the additional child tax credit began to phaseout only when a taxpayer’s adjusted gross income reached $110,000 in the case of a joint return, and a family earning $110,000 per year was not “needy” as that term was commonly understood and used in KRS 205.010 . Brausch v. Brausch, 265 S.W.3d 837, 2008 Ky. App. LEXIS 279 (Ky. Ct. App. 2008).

Because the combined gross monthly income captured all sources of income available to the parties including bonuses, restricted stock units (RSUs), and maintenance, the ex-husband’s RSU income should have been included in the income calculation for child support purposes, and the trial court erred in not doing so. Normandin v. Normandin, 634 S.W.3d 589, 2020 Ky. LEXIS 456 ( Ky. 2020 ).

11.Effect of Agreements Among Different Ex-spouses.

Where divorced husband had two ex-wives, each ex-wife having a child of the marriage for which ex-husband owed child support, and where ex-husband and second ex-wife jointly agreed that ex-husband would increase the child support he paid for their joint child, the resulting order entered by the court increasing the amount paid to the second ex-wife for the support of their joint child was not improper, even though that new, increased amount was deducted from husband’s income when calculating the first ex-wife’s child support award resulting in a lesser increased award for first ex-wife. Marksberry v. Riley, 889 S.W.2d 47, 1994 Ky. App. LEXIS 145 (Ky. Ct. App. 1994).

12.Determination of Potential Income.

Subsection (2)(d) of this section in providing that if the Domestic Relations Counselor does find that a parent is voluntarily unemployed or underemployed, then the DRC should calculate child support on a determination of potential income, means that the DRC must determine potential income which would be greater than zero income and could require the parent’s child support obligations to be more than $60.00 a month. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

Where a father was in school for the first half of the year, the Family Court did not err, in calculating the father’s child support obligation, when it did not use the father’s income for the entire year, because such a methodology was contrary to the parties’ agreement and would not have correctly reflected his earning capacity for the purpose of calculating child support. Brausch v. Brausch, 265 S.W.3d 837, 2008 Ky. App. LEXIS 279 (Ky. Ct. App. 2008).

Family court did not abuse its discretion when it omitted from the child support calculation a partnership’s allocation of tax items to a mother because it carefully distinguished between the mother’s allocated tax burden and income received and at her disposal when calculating the father’s modified child support obligation; there was no evidence that the mother received anything but her proportionate share of tax liability for being a member of a limited partnership. Hawkins v. Hawkins, 437 S.W.3d 171, 2014 Ky. App. LEXIS 109 (Ky. Ct. App. 2014).

In a child support matter, there was no error in finding that a mother was capable of earning $ 60,000 per year where the trial court considered her work history, prior earnings, and the fact that she was beginning a new job at the time of trial. Bootes v. Bootes, 470 S.W.3d 351, 2015 Ky. App. LEXIS 126 (Ky. Ct. App. 2015).

13.Application of Minimum Support Obligations.

Fact that father was unemployed and received AFDC benefits were not extraordinary facts that would allow deviation of the child support guidelines. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

Merely being a recipient of AFDC does not rebut the presumption that the $60.00 minimum is appropriate for families with no adjusted income. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

Since the application of the $60.00 child support obligation is presumed to be correct in all cases where the combined monthly adjusted gross income is between $0.00 and $100.00, unless it can be shown that the application of this guidline would be unjust and inappropriate, the application of the $60.00 child support is presumed to be correct unless rebutted and the fact that one has no gross income does not rebut the presumption. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

Where DRC found that father was able-bodied and had tenth grade education and was employed part-time before the hearing, these facts support the application of $60.00 minimum child support obligation and it was not necessary for the DRC to find that he was voluntarily unemployed or underemployed. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

14.Order to Pay.
15.— Effective.

Order directing father pay $60.00 per month for support of noncustodial child was effective and enforceable from the date it was entered and not when father who was unemployed and receiving AFDC benefits for custodial child was able to pay. Brashears v. Cabinet for Human Resources, 944 S.W.2d 873, 1997 Ky. App. LEXIS 39 (Ky. Ct. App. 1997).

16.Change of Circumstances.

Because one (1) of the parties’ children had been placed with the Department of Juvenile Justice, the trial court erred in increasing the father’s child support obligation pursuant to KRS 403.213(1), the guidelines figure for the support of one (1) child; if the Department had obtained child support from the father pursuant to KRS 610.170 , his child support obligation to the mother should have been recalculated as split custody in accordance with KRS 403.212(6). Rodney P. v. Stacy B., 169 S.W.3d 834, 2005 Ky. LEXIS 245 ( Ky. 2005 ).

Father seeking a modification of child support did not meet the father's burden of proof to establish a substantial and continuing material change in circumstances because (1) self-employment income attributable to the father based on the evidence exceeded the father's representations, and (2) there was little or no credible evidence from which to find the father's ordinary and necessary expenses. Shelton v. Shelton, 446 S.W.3d 663, 2014 Ky. App. LEXIS 164 (Ky. Ct. App. 2014).

17.Calculation of Self-employed Income.

Trial court erred as a matter of law in allowing a husband to reduce his income for child support purposes by utilizing the accelerated depreciation provision of 26 USCS § 179 because KRS 403.212 (c) required straight line depreciation. Gripshover v. Gripshover, 2005 Ky. App. LEXIS 181 (Ky. Ct. App. Aug. 19, 2005), aff'd in part and rev'd in part, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

Although the husband appropriately used 26 USCS § 179 to expense deductions in calculating the husband’s income for federal income tax purposes, KRS 403.212 (2)(c) provided that straight-line depreciation was the only allowable method of calculating depreciation expense in determining gross income and, thus, the Family Court erred in finding that 26 USCS § 179 deductions were appropriate adjustments to gross receipts under KRS 403.212 . Gripshover v. Gripshover, 246 S.W.3d 460, 2008 Ky. LEXIS 40 ( Ky. 2008 ).

KRS 403.212 required an individual to be self-employed to receive the deduction from gross income contemplated in KRS 403.212 (2)(c). Bell v. Bell, 423 S.W.3d 219, 2014 Ky. LEXIS 7 ( Ky. 2014 ).

Reversal of the trial court’s order setting the amount of the father’s monthly child-support obligation was necessary where the trial court erred by deducting the father’s unreimbursed business expenses from his gross income without first finding if the father was self-employed, as required by KRS 403.212(2)(c). Bell v. Bell, 423 S.W.3d 219, 2014 Ky. LEXIS 7 ( Ky. 2014 ).

18.Prior-Born Child.

Trial court’s order that allowed the mother to impute a child support obligation for a prior-born child, pursuant to KRS 403.212(2)(g)(4), was upheld because the statute protected a legitimate state interest in assuring that the prior-born child was cared for and the statute did not violate the father’s equal protection rights because he could not take a similar deduction for his after-born child. The father had not shown that his due process rights were violated because there was insufficient evidence presented to support such a violation. Kimbrough v. Child Support Div. ex rel. Belmar, 215 S.W.3d 69, 2006 Ky. App. LEXIS 226 (Ky. Ct. App. 2006).

19.Support Outside of Guidelines.

Trial court did not abuse its discretion by setting child support outside of the guidelines where the parties’ income exceeded the highest annual income level set forth in the guidelines. Explanations were given for a minimal change in support after other children turned 18, imputing income to the mother would not have changed the calculation, a mother substantiated the expenses with documentation, and there was no abuse of discretion relating to the household expenses allocated to the child. Ciampa v. Ciampa, 415 S.W.3d 97, 2013 Ky. App. LEXIS 128 (Ky. Ct. App. 2013).

Family court did not abuse its discretion when it refused to set aside a separation agreement as the amount of child support was not unconscionable because, while in excess of the guidelines, it was not shocking to the conscious or outside the former husband's reasonable fiscal means. Mays v. Mays, 541 S.W.3d 516, 2018 Ky. App. LEXIS 87 (Ky. Ct. App. 2018).

20.Gross income.

Trial court did not err in using the husband's gross income in calculated his child support. Lambe v. Weber, 2014 Ky. App. LEXIS 177 (Ky. Ct. App. Nov. 14, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1053 (Ky. Ct. App. Nov. 14, 2014).

Income from a tax preparation business should not have been excluded from a father's income for child support calculations because the father failed to prove that the amount paid to a relative constituted an ordinary and necessary expense required to operate the business; on remand, the trial court had to determine how much of the gross receipts from the business was paid out as an ordinary and necessary business expense via a reasonable salary to the relative for his administrative work. The remainder constituted gross income to be included in calculating father's child support obligation. Bootes v. Bootes, 470 S.W.3d 351, 2015 Ky. App. LEXIS 126 (Ky. Ct. App. 2015).

Cited in:

Wiegand v. Wiegand, 862 S.W.2d 336, 1993 Ky. App. LEXIS 120 (Ky. Ct. App. 1993); Cabinet for Human Resources v. Houck, 908 S.W.2d 673, 1995 Ky. App. LEXIS 185 (Ky. Ct. App. 1995); Rainwater v. Williams, 930 S.W.2d 405, 1996 Ky. App. LEXIS 160 (Ky. Ct. App. 1996); Commonwealth ex rel. Marshall v. Marshall, 15 S.W.3d 396, 2000 Ky. App. LEXIS 26 (Ky. Ct. App. 2000); Seay v. Seay, 404 S.W.3d 215, 2013 Ky. App. LEXIS 102 (Ky. Ct. App. 2013).

Notes to Unpublished Decisions

Analysis

1.Imputed Income.

Unpublished decision: Trial court erred in imputing to the father as “gross income,” for purposes of modifying his child support, his student loans as student loans were not “gross income” under the statutory definition of “gross income” for purposes of modifying child support, KRS 403.212(2)(b), because of the requirement that student loans be repaid. Stewart v. Burton, 108 S.W.3d 647, 2003 Ky. App. LEXIS 159 (Ky. Ct. App. 2003).

2.Source of Income.

Unpublished decision: Income pursuant to KRS 403.212 including income from any source for purposes of determining the father’s gross income and modifying his child support if necessary, and, thus, gifts and financial assistance from his parents were properly included as “gross income” that the father received. Stewart v. Burton, 108 S.W.3d 647, 2003 Ky. App. LEXIS 159 (Ky. Ct. App. 2003).

Unpublished decision: Financial assistance and gifts that parents gave to the father were properly included as “gross income” for purposes of determining whether the father’s child support obligation should be modified, as the the term “gross income” was not limited solely to income producing items. Stewart v. Burton, 108 S.W.3d 647, 2003 Ky. App. LEXIS 159 (Ky. Ct. App. 2003).

Research References and Practice Aids

Kentucky Bench & Bar.

Cullison, How Kentucky’s Civil Legal Aid Programs Assist Victims of Domestic Violence: One Program’s Perspective, Vol. 74, No. 1, January 2010, Ky. Bench & Bar 6.

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Notes, House, Awarding Child Support Against the Impoverished Parent: Straying from Statutory Guidelines and Using SSI in Setting the Amount, 83 Ky. L.J. 681 (1994-95).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Bartlett, Setting Child Support for the Low Income and High Income Families in Kentucky, 25 N. Ky. L. Rev. 2 (1998).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Child Support, § 263.00.

Caldwell’s Kentucky Form Book, 5th Ed., Worksheet for Monthly Child Support Obligation (CS-71), Form 263.01.

Caldwell’s Kentucky Form Book, 5th Ed., Worksheet for Monthly Child Support Obligation Exception (CS-71.1), Form 263.02.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.3.

403.2121. Establishment of adjustment to child support obligations based upon parenting time — Authority to promulgate administrative regulations — Children receiving public assistance. [Effective March 1, 2022]

  1. Except as provided in subsection (4) of this section or otherwise provided in this chapter, the child support obligation determined under KRS 403.212 shall be subject to further adjustment as follows:
    1. If the parents share equal parenting time, the child support obligation determined under KRS 403.212 shall be divided between the parents in proportion to their combined monthly adjusted parental gross income, and the parent with the greater proportional child support obligation shall pay the parent with the lesser proportional obligation the difference in the value of each parent’s proportional obligation; and
    2. If the parents share unequal parenting time under either a court-ordered time-sharing schedule or a time-sharing schedule exercised by agreement of the parties, the court shall:
      1. Calculate the child support obligation set forth in the child support guidelines table in accordance with KRS 403.212;
      2. Determine the percentage of overnight stays the child spends with each parent on an annual basis based upon the time-sharing order or agreement;
      3. Multiply each parent’s support obligation as calculated under KRS 403.212 by the percentage of the other parent’s overnight stays as calculated in subparagraph 2. of this paragraph;
      4. Set the difference between the amounts calculated in subparagraph 3. of this paragraph as the monetary transfer or credit necessary between the parents for the care of the child; and
      5. Use its discretion in adjusting each parent’s child support obligation under this paragraph in accordance with the factors under KRS 403.212, and the following:
        1. The obligated parent’s low income and ability to maintain the basic necessities of the home for the child;
        2. The likelihood that either parent will actually exercise the time- sharing schedule set forth in the court-ordered time-sharing schedule or time-sharing agreement between the parents;
        3. Whether all of the children are exercising the same time-sharing schedule; and
        4. Whether the time-sharing plan results in fewer overnights due to a significant geographical distance between the parties that may affect the child support obligation.
  2. As used in this section, unless the context requires otherwise, an “overnight stay” shall include the costs associated with feeding and transporting the child, entertainment, attending to school work, athletic events, extracurricular activities, or other expenses that transfer with the child as they move from one parent to the other. Merely providing a child with a place to sleep in order to obtain an adjustment in a child support obligation shall not constitute an overnight stay under this section.
  3. The child support calculations required under this section shall be on a worksheet prescribed by the Cabinet for Health and Family Services in administrative regulations promulgated under KRS Chapter 13A.
  4. This section shall not apply if the child or children subject to the child support award receive public assistance, including KCHIP, K-TAP, food stamps, or Medicaid.

HISTORY: 2021 ch. 47, § 3, effective March 1, 2022.

403.213. Criteria for modification of orders for child support and for health care — Effects of emancipation and death of obligated parent — Commission to review guidelines.

  1. The Kentucky child support guidelines may be used by the parent, custodian, or agency substantially contributing to the support of the child as the basis for periodic updates of child support obligations and for modification of child support orders for health care. The provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing.
  2. Application of the Kentucky child support guidelines to the circumstances of the parties at the time of the filing of a motion or petition for modification of the child support order which results in equal to or greater than a fifteen percent (15%) change in the amount of support due per month shall be rebuttably presumed to be a material change in circumstances. Application which results in less than a fifteen percent (15%) change in the amount of support due per month shall be rebuttably presumed not to be a material change in circumstances. For the one (1) year period immediately following enactment of this statute, the presumption of material change shall be a twenty-five percent (25%) change in the amount of child support due rather than the fifteen percent (15%) stated above.
  3. Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall be terminated by emancipation of the child unless the child is a high school student when he reaches the age of eighteen (18). In cases where the child becomes emancipated because of age, but not due to marriage, while still a high school student, the court-ordered support shall continue while the child is a high school student, but not beyond completion of the school year during which the child reaches the age of nineteen (19) years. Provisions for the support of the child shall not be terminated by the death of a parent obligated to support the child. If a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances. Emancipation of the child shall not terminate the obligation of child support arrearages that accrued while the child was an unemancipated minor.
  4. The child support guidelines table shall be reviewed at least once every four (4) years by a commission consisting of the following persons:
    1. The secretary of the Cabinet for Health and Family Services or a supervisory staff person designated by him;
    2. Two (2) members of the Kentucky Bar Association who have at least six (6) consecutive years’ experience and are presently practicing domestic relations cases, one (1) member from a metropolitan or large urban area and one (1) member from a less populated area;
    3. Two (2) Circuit Judges appointed by the Chief Justice of the Kentucky Supreme Court, one (1) from a metropolitan or large urban area, and one (1) from a less populated area;
    4. One (1) District Judge appointed by the Chief Justice of the Kentucky Supreme Court;
    5. Two (2) county attorneys appointed by the president of the County Attorneys Association, one (1) from a metropolitan or large urban area and one (1) from a less populated area;
    6. The Attorney General or his designee, who shall be an attorney from his office;
    7. One (1) person who is a custodial parent;
    8. One (1) person who is a noncustodial parent;
    9. One (1) person who is a parent with split custody; and
    10. One (1) child advocate.

      The members designated in paragraphs (g) to (j) of this subsection shall be appointed by the Governor from a list of three (3) names for each category submitted by the Cabinet for Health and Family Services. If the status of one (1) of these members changes, the member shall be replaced through appointment by the Governor from a list of three (3) names submitted by the cabinet.

  5. The commission shall make a recommendation to the Kentucky General Assembly to ensure that the child support guidelines table results in a determination of appropriate child support amounts.

History. Enact. Acts 1990, ch. 418, § 4, effective July 13, 1990; 1992, ch. 434, § 3, effective July 14, 1992; 1994, ch. 330, § 12, effective July 15, 1994; 1998, ch. 426, § 580, effective July 15, 1998; 2000, ch. 430, § 10, effective July 14, 2000; 2001, ch. 161, § 1, effective March 21, 2001; 2005, ch. 99, § 625, effective June 20, 2005.

NOTES TO DECISIONS

1.Change of Circumstances.

Father seeking a modification of child support did not meet the father's burden of proof to establish a substantial and continuing material change in circumstances because (1) self-employment income attributable to the father based on the evidence exceeded the father's representations, and (2) there was little or no credible evidence from which to find the father's ordinary and necessary expenses. Shelton v. Shelton, 446 S.W.3d 663, 2014 Ky. App. LEXIS 164 (Ky. Ct. App. 2014).

Where father agreed to provide support while son was in high school or until son reached the age of maturity, change of age of maturity by statute did not excuse father from supporting son until he graduated from high school. Leathers v. Ratliff, 925 S.W.2d 197, 1996 Ky. App. LEXIS 109 (Ky. Ct. App. 1996).

Since once an award of child support entered pursuant to the terms of a separation agreement under KRS 403.280 is reopened for modification, the child support must be set anew pursuant to KRS 403.210 et seq., and in reaching its decision the court is to consider both the changes in finances of both parents as well as the needs of the child, thus it was proper for the court to disregard the prior agreement of the parties as to the amount of child support payable by the husband in deciding to raise that amount. Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

Payor parent’s receipt of a substantial capital gain from sale of a farm constituted a material change of circumstances, and the capital gain was to be included in the parent’s gross income for the year received; upon a future motion to modify the trial court could adjust the child support obligation to reflect fluctuations in income due to the nonrecurring event, but proration of the capital gain over the parent’s remaining work life expectancy was improper. Clary v. Clary, 54 S.W.3d 568, 2001 Ky. App. LEXIS 696 (Ky. Ct. App. 2001).

Jessamine Circuit Court erroneously granted the mother’s motion to compel discovery in the child support modification case, and the father was, therefore, granted a writ of prohibition under CR 76.36; before seeking discovery, the mother, under KRS 403.213(1), was required to make a showing of a material change of circumstances and to file a motion to modify child support, neither of which the mother had done. Combs v. Daugherty, 170 S.W.3d 424, 2005 Ky. App. LEXIS 170 (Ky. Ct. App. 2005).

Where the mother had not previously received child support and sought modification when one of the children moved in with the mother full-time, the trial court erred under KRS 403.213(1) in awarding child support retroactive to the date that the child moved in, as the date that the motion for modification was filed was the earliest retroactive date allowed. Finck v. Finck, 2005 Ky. App. Unpub. LEXIS 908 (Ky. Ct. App. May 27, 2005).

Because a father failed to adequately preserve issues related to the recalculation and increase in his child support by failing to request the Family Court to make findings of fact relative to the support, the Court of Appeals was unable to review the father’s claim of error. Johnson v. Johnson, 232 S.W.3d 571, 2007 Ky. App. LEXIS 303 (Ky. Ct. App. 2007).

Because a father failed to show the substantial and continuing material change in circumstance required by KRS 403.213 , he was properly found to be voluntarily underemployed; accordingly, his motion to modify his child support obligations was properly denied. Howard v. Howard, 2009 Ky. App. Unpub. LEXIS 1090 (Ky. Ct. App. June 12, 2009), aff'd, 336 S.W.3d 433, 2011 Ky. LEXIS 52 ( Ky. 2011 ).

Family court did not err in denying a mother’s motion to modify a father’s child support obligation because the mother failed to prove a material change in circumstances to justify an increase in the father’s support obligation under KRS 403.213 . Although the mother claimed that she was forced to seek state assistance for the child’s medical needs, the family court found that the father had always provided insurance for the child and that the mother simply needed an updated insurance card; thus, the only evidence of any change in circumstances was readily refuted by the record. Cabinet v. Bowman, 2010 Ky. App. LEXIS 123 (Ky. Ct. App. July 16, 2010).

Child support guidelines were inapplicable, KRS 403.211(3)(e) and (g), because the parties’ combined monthly gross income exceeded the uppermost level of the child support guidelines rendering application of the guidelines inappropriate, and the familial circumstances were of an extraordinary nature rendering application of the child support guidelines unjust; as the child support guidelines were inapplicable, the rebuttable presumption found in KRS 403.213(2) concerning modification of child support was inapplicable, and upon remand, the family court had to consider the father’s motions to modify child support in accordance with KRS 403.213(1). Dudgeon v. Dudgeon, 318 S.W.3d 106, 2010 Ky. App. LEXIS 136 (Ky. Ct. App. 2010).

Husband made an insufficient demonstration of a change of circumstances after a divorce decree with the exception of filing for bankruptcy to warrant modification of child support; because other financial obligations were discharged, more of the husband’s income could presumably be applied to child support, and the husband’s ex-wife testified that the husband’s child support payments had become more regular since the bankruptcy discharge. Howard v. Howard, 336 S.W.3d 433, 2011 Ky. LEXIS 52 ( Ky. 2011 ).

Emancipations of the father’s two older children constituted a material change in circumstances and the father was entitled to a modification in his support obligation under KRS 403.213 , but only as to installments accruing subsequent to the filing of the motion to modify child support. Bennett v. Bennett, 2011 Ky. App. LEXIS 106 (Ky. Ct. App. June 10, 2011).

Circuit court erred in, sua sponte, directing a mother to seek child support because the only issue before the court was the child's school placement, the mother did not request child support, and a showing of a material change in circumstances that was substantial and continuing was statutorily required. Keeton v. Keith, 511 S.W.3d 918, 2017 Ky. App. LEXIS 16 (Ky. Ct. App. 2017).

Family court failed to set forth substantial evidence supporting its finding that the mother met her burden of demonstrating that a material change in circumstances had occurred in the two years since the prior support order was entered, as a comparison of the parties’ circumstances showed little change other than the child’s growth and the father’s decline in income. Wilson v. Inglis, 554 S.W.3d 377, 2018 Ky. App. LEXIS 197 (Ky. Ct. App. 2018).

Modification of a father’s child support obligation was vacated because (1) a prior court established that obligation at $0, so the mother’s assignment of the right to child support to the Cabinet for Health and Family Services (CHFS) only assigned a right to seek modification, (2) CHFS’ complaint did not comply with a procedural rule by demanding that the court establish a child support obligation, (3) the court in which the complaint was filed discounted the prior decree, and, (4) while any objection to the subsequent court as an improper forum was waived, that court did not recognize the prior decree as establishing the father’s initial obligation and did not find if the facts justified modification of the initial obligation. Martin v. Commonwealth Cabinet, 583 S.W.3d 12, 2019 Ky. App. LEXIS 86 (Ky. Ct. App. 2019).

Modification of a marital settlement agreement would be appropriate under the child support modification statute because the parties reconciled and cohabited, which allowed for an equal sharing of time and resources as it related to the children; that was a substantial and continuing material change sufficient to modify a child support obligation, especially since it went on for six years. Brannock v. Brannock, 598 S.W.3d 91, 2019 Ky. App. LEXIS 196 (Ky. Ct. App. 2019).

2.— Decreased Income.

Where mother’s decreased income alone would not support a modification of support under the guidelines, and where there had been no showing of “extraordinary educational needs” or finding of other circumstance which would overcome the statutory presumption, the circuit court’s child support modification order was set aside. Smith v. Smith, 845 S.W.2d 25, 1992 Ky. App. LEXIS 230 (Ky. Ct. App. 1992).

Father failed to carry his burden of establishing a substantial and continuing change in circumstances that would warrant a reduction in the father’s child support obligation where, while the father asserted that he no longer had income producing rental properties, the father failed to present any evidence as to what had happened to the properties. Goldsmith v. Bennett-Goldsmith, 227 S.W.3d 459, 2007 Ky. App. LEXIS 131 (Ky. Ct. App. 2007).

3.— Incarceration.

Incarceration of the obligor parent is simply not a change in circumstances within the meaning of the statute; instead, it is akin to voluntary unemployment as it is the result of voluntary conduct which the obligor parent should have known would impair his ability to support his children. Commonwealth ex rel. Marshall v. Marshall, 15 S.W.3d 396, 2000 Ky. App. LEXIS 26 (Ky. Ct. App. 2000).

Because one (1) of the parties’ children had been placed with the Department of Juvenile Justice, the trial court erred in increasing the father’s child support obligation pursuant to KRS 403.213(1), the guidelines figure for the support of one (1) child; if the Department had obtained child support from the father pursuant to KRS 610.170 , his child support obligation to the mother should have been recalculated as split custody in accordance with KRS 403.212(6). Rodney P. v. Stacy B., 169 S.W.3d 834, 2005 Ky. LEXIS 245 ( Ky. 2005 ).

4.— Consumer Debt.

The total court erred as a matter of law in modifying the support award where the only change in circumstances father could demonstrate was a higher amount of consumer debt. Downey v. Rogers, 847 S.W.2d 63, 1993 Ky. App. LEXIS 18 (Ky. Ct. App. 1993), limited, Conley v. Conley, 2008 Ky. App. Unpub. LEXIS 975 (Ky. Ct. App. May 16, 2008).

5.Contempt Action.

A contempt action does not mean that a trial judge can excuse accrued child support arrearage. Lewis v. Lewis, 875 S.W.2d 862, 1993 Ky. LEXIS 78 ( Ky. 1993 ).

6.Educational Expenses.

For purposes of determining a modification in child support based on incurred educational expenses, educationsl expenses encompass more than mere tuition. Giacalone v. Giacalone, 876 S.W.2d 616, 1994 Ky. App. LEXIS 17 (Ky. Ct. App. 1994).

Where child received a high school diploma from a fully-accredited American School, and there was nothing in the record to suggest that the school was a sham operation, or that it did not provide an adequate education to its students which was substantially equivalent to that which might be obtained in a traditional Kentucky public school, it was a “high school” for purposes of this section. Smiley v. Browning, 8 S.W.3d 887, 1999 Ky. App. LEXIS 160 (Ky. Ct. App. 1999).

7.Daycare Expenses.

Although the trial court was allowed to modify the allocation of child care costs to reflect the fact that a wife’s need to pay those costs had decreased, the trial court improperly considered the issue under KRS 403.213 , not under KRS 403.211(6), and the appellate court vacated the trial court’s judgment and remanded the case for further proceedings. Olson v. Olson, 108 S.W.3d 650, 2003 Ky. App. LEXIS 158 (Ky. Ct. App. 2003).

8.Discretion of Court.

Trial court abused its discretion by overruling a father's modification motion on the ground that he could not be physically present in court for a hearing since he was unable to legally enter the United States; due to an older child's emancipation, the trial court was under an affirmative obligation to review the support and enter a new order, and the father argued that modification was in order due to a change in the currency exchange rate. There was a procedure for putting the father under oath in another country. Moskovitz v. Moskovitz, 459 S.W.3d 886, 2015 Ky. App. LEXIS 46 (Ky. Ct. App. 2015).

Where a trial court relieved a father’s child support arrearages not because the original child support decree had been modified but because the father had been in physical custody of the child and had been providing for all necessities of the child, the court abused its discretion since it had no power to relieve the father of his obligations when no motion for modifying the child support order had been made, as required by this section. Price v. Price, 912 S.W.2d 44, 1995 Ky. LEXIS 146 ( Ky. 1995 ).

Because the trial court could not modify a father’s child support payments once they had accrued, and because no motion for modification had been filed, pursuant to KRS 403.213(1), the trial court properly denied the father’s motion for a nunc pro tunc order. Holland v. Holland, 290 S.W.3d 671, 2009 Ky. App. LEXIS 116 (Ky. Ct. App. 2009).

9.— Future Medical Expenses.

It was error for the court to refuse to consider the independent financial resources of the child, due to his receipt of a sizeable personal injury settlement, in determining whether extraordinary circumstances existed to merit deviating from the child support guidelines. The court also erred in not hearing evidence regarding the child’s present physical and mental condition, his current medical needs or the likelihood of further medical expenses given his injuries and whether mother was justified in being unemployed. Rainwater v. Williams, 930 S.W.2d 405, 1996 Ky. App. LEXIS 160 (Ky. Ct. App. 1996).

10.Credit for Overpayments.

Where social security payments received by child on account of father’s disability exceeded the father’s monthly support obligation, any payments of child support made by father after the social security payments began should be credited to his arrearage; the remainder of any surplus must be considered a gratuity and not allowed to offset any arrearage for support which accrued prior to the disability. Miller v. Miller, 929 S.W.2d 202, 1996 Ky. App. LEXIS 147 (Ky. Ct. App. 1996).

A former husband was entitled to a refund of nearly $11,000.00 for child support he was held to have twice paid where (1) after becoming disabled, he was awarded workers’ compensation benefits and also received disability benefits under a pension plan which required that he apply for social security disability benefits; (2) while awaiting a ruling on social security disability benefits, he continued to pay almost $11,000 in child support; (3) the Social Security Administration approved the disability claim and paid, inter alia, a back award of dependent’s benefits to the child at issue in the amount of about $21,000; and (4) the pension plan thereupon demanded that the former husband repay pension benefits to the extent of the social security back awards, including the back award of dependent benefits. Van Meter v. Smith, 14 S.W.3d 569, 2000 Ky. App. LEXIS 17 (Ky. Ct. App. 2000).

11.Child Custody and Support.

This section applies to any action to modify an award of child support even in a case where there was a separation agreement where the spouse acknowledged that the child support payable under the terms of the agreement was less than that authorized by the child support guidelines pursuant to subsection (3) of KRS 403.211 . Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

While the parties to a divorce are free to enter into a separation agreement to promote the settlement of the divorce, the court still retains control over child custody, support and visitation and is not bound by the parties’ agreement in these areas. Tilley v. Tilley, 947 S.W.2d 63, 1997 Ky. App. LEXIS 56 (Ky. Ct. App. 1997).

Father was not entitled to reduce his child support obligation by one-half when his daughter reached the age of emancipation without an out-of-court agreement with the mother or a motion to reduce his child support payments; however, nowhere in his affidavit did the father claim that there was an agreement between himself and the mother which allowed him to reduce his child support payments. Thus, the family court did not err when it found that the father failed to file a motion to reduce his child support and that there was insufficient evidence to support the conclusion that the mother agreed to a reduction. Therefore, the family court correctly concluded that KRS 403.213(1) did not permit retroactive modification to the father’s child support. Pecoraro v. Pecoraro, 148 S.W.3d 813, 2004 Ky. App. LEXIS 310 (Ky. Ct. App. 2004).

Father, through counsel, informed the family court judge that the matter regarding retroactively recalculating his child support was ready for submission; thus, he should not be allowed to complain after receiving an unfavorable ruling that the trial court failed to hold a hearing. Having passed up the opportunity for a hearing before the family court made its decision on the father’s motion to retroactively recalculate his child support, the father could not subsequently expect the appellate court to find that the family court committed an error in failing to hold a hearing to determine whether an agreement modifying his child support existed. Pecoraro v. Pecoraro, 148 S.W.3d 813, 2004 Ky. App. LEXIS 310 (Ky. Ct. App. 2004).

Where, in the child support modification in which the mother was awarded child support for the first time, the appellate court refused to consider the father’s challenge to the amount of child support awarded because the father failed to file a motion to modify in the trial court pursuant to KRS 403.213 . Finck v. Finck, 2005 Ky. App. Unpub. LEXIS 908 (Ky. Ct. App. May 27, 2005).

Even though a mother failed to preserve error due to noncompliance with CR 76.12(4)(c)(v) and failed to request review under CR 61.02, the manifest injustice standard of review was applied to a child support modification case given the oddly-timed circumstances of this appeal relative to the rendering of the decision in Artrip v. Noe, 311 S.W.3d 229, 2010 Ky. LEXIS 81 ( Ky. 2010 ). The evidence showed that a child would not have suffered an injustice by a minimal increase in child support that occurred after a trial court took into account that the child was receiving government benefits for his mother’s disability. Hudson v. Hudson, 2010 Ky. App. LEXIS 243 (Ky. Ct. App. Jan. 14, 2010).

Pursuant to KRS 403.213 and 405.020(1), the father was not entitled to retroactive automatic modification of his child support obligation based on the emancipation of fewer than all his children covered by the prevailing support order; instead, the father had a duty to file a motion requesting the court to modify his child support obligation. Bennett v. Bennett, 2011 Ky. App. LEXIS 106 (Ky. Ct. App. June 10, 2011).

12.Emancipation of Child.

Language of the statute expresses an unequivocal intent by the legislature that child support be terminated upon emancipation of a child absent the statutory exception; therefore, the emancipation of a child is a singular event that triggers a review of the current child support obligation of a party pursuant to Kentucky’s statutes, caselaw and guidelines based on the facts and circumstances post emancipation. A father was entitled to have his child support obligation reviewed in light of the emancipation of the eldest child because the emancipation of one of the children upon which the prior child support order was based was an event that triggered the review of the child support obligation. Seay v. Seay, 404 S.W.3d 215, 2013 Ky. App. LEXIS 102 (Ky. Ct. App. 2013).

13.Post-Majority Child in High School.

In a child support dispute, a trial court erred by assigning May 30, 2014 as the end of the school and as the termination date for a father's obligation to pay child support because the school year ended on June 30, pursuant to statute; however, there was no error in failing to extend the school year to November 2014 to allow the student to finish his senior year after the age of majority. Mix v. Petty, 465 S.W.3d 891, 2015 Ky. App. LEXIS 40 (Ky. Ct. App. 2015).

This section, as amended in 1992, manditorily postpones the termination of the support obligation for a child who is a high-school student upon attaining majority. Bustin v. Bustin, 969 S.W.2d 697, 1998 Ky. LEXIS 94 ( Ky. 1998 ).

The parties’ child was enrolled in a high school when she became 18 years of age and, therefore, the father’s child support obligation did not automatically terminate on her eighteenth birthday where the child had enrolled in a home-bound program after withdrawing from a public high school because of problems with her nerves brought on by the ambiance of the public school. Marcinek v. Commonwealth, 999 S.W.2d 721, 1999 Ky. App. LEXIS 113 (Ky. Ct. App. 1999).

Trial court erred in finding that an emancipated child was not a high school student for child support purposes under KRS 403.213(3) where she was in an unaccredited home-school program that gave her an education that was substantially equivalent to that offered in a traditional public school. Commonwealth ex rel. Francis v. Francis, 148 S.W.3d 805, 2004 Ky. App. LEXIS 239 (Ky. Ct. App. 2004).

14.Deceased Parent’s Child Support Obligation.

When the mother of a disabled child sued the estate of the child’s father regarding various statutory violations in the handling of the estate which allegedly resulted in denying the child the opportunity to present a child support claim against the estate, it was error to dismiss the complaint on summary judgment because the estate could potentially be held liable for such support. Thompson v. Porter, 2012 Ky. App. LEXIS 248 (Ky. Ct. App. Nov. 30, 2012), op. withdrawn, sub. op., 2013 Ky. App. Unpub. LEXIS 418 (Ky. Ct. App. May 24, 2013).

15.Emancipated Child.

Court erred by concluding that the divorced father’s child support obligation could not be modified without a 15 percent change in the amount of support due when a child is emancipated because the emancipation of one of the children on which the prior child support order was based was an event that triggered review of the child support obligation. Thus, the divorced father was entitled to have his child support obligation reviewed. Dickens v. Dickens, 401 S.W.3d 489, 2013 Ky. App. LEXIS 79 (Ky. Ct. App. 2013).

In a child custody case, it was error to award a former husband attorney fees because there was no finding of a disparity in income; moreover, discovery could not have been conducted because there was no pending motion to modify custody or parenting time. The former wife could not have been ordered to pay fees that were incurred due to the alleged contempt of her new husband. Hencye v. White, 2016 Ky. App. LEXIS 85 (Ky. Ct. App. May 27, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 892 (Ky. Ct. App. May 27, 2016).

Cited:

Pretot v. Pretot, 905 S.W.2d 868, 1995 Ky. App. LEXIS 165 (Ky. Ct. App. 1995); Gossett v. Gossett, 32 S.W.3d 109, 2000 Ky. App. LEXIS 120 (Ky. Ct. App. 2000).

Research References and Practice Aids

Kentucky Bench & Bar.

Crocker, Current Issues in Child Support and the Use of Child Support Guidelines, Vol. 57, No. 2, Spring 1993 Ky. Bench & B. 9.

Hicks, Postminority Support for College Expenses A Moral and Legal Dilemma, Vol. 60, No. 4, Fall 1996 Ky. Bench & B. 34.

Kentucky Law Journal.

Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 Ky. L.J. 585 (1992-93).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Bartlett, Setting Child Support for the Low Income and High Income Families in Kentucky, 25 N. Ky. L. Rev. 2 (1998).

Rachlinski & Jarrells, Family Law Survey: Dissolution of Marriage in Kentucky., 31 N. Ky. L. Rev. 169 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit in Support of Motion to Reduce Child Support, Form 263.09.

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit in Support of Motion to Terminate Child Support, Form 263.20.

Caldwell’s Kentucky Form Book, 5th Ed., Motion to Increase Child Support, Form 263.05.

Caldwell’s Kentucky Form Book, 5th Ed., Motion to Terminate Child Support, Form 263.19.

403.215. Assignment of wages for child support obligations.

After July 15, 1990, any new or modified order or decree which contains provisions for the support of a minor child or minor children, shall provide for a wage assignment which shall begin immediately except for good cause shown, and which shall be paid based upon the payment schedule of wages of the employer to whom the wage assignment is directed, and at a minimum, on a monthly basis. If good cause is shown, the wage assignment shall take effect when an arrearage accrues that is equal to the amount of support payable for one (1) month, pursuant to KRS 405.465 . Notice of all orders providing for wage assignment issued in Kentucky on or after January 1, 1994, shall be sent to the employer using the federally approved Income Withholding for Support (IWO) form that contains the accompanying OMB number.

History. Enact. Acts 1986, ch. 487, § 11, effective July 15, 1986; 1988, ch. 411, § 3, effective July 15, 1988; 1990, ch. 418, § 14, effective July 13, 1990; 1998, ch. 255, § 50, effective July 15, 1998; 2019 ch. 162, § 3, effective June 27, 2019.

Opinions of Attorney General.

KRS 205.741 (now repealed) and 405.465 require immediate and automatic wage assignment in all child support orders issued after July 15, 1988, unless the court has found in its judicial discretion that the basis exists for a good cause exception. In addition, this section requires the inclusion within every order or decree of dissolution containing provisions for child support issued after July 15, 1988, the notice that a wage assignment may issue if an arrearage accrues equal to one month. OAG 88-84 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion for Wage Assignment, Form 263.11.

Petrilli, Kentucky Family Law, 1991 Supp., Custody of Children, § 27.3.

403.220. Costs of action and attorney’s fees.

The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

History. Enact. Acts 1972, ch. 182, § 12.

NOTES TO DECISIONS

1.Discretion of Court.

The allocation of court costs and attorney’s fees are entirely within the discretion of the court. Wilhoit v. Wilhoit, 521 S.W.2d 512, 1975 Ky. LEXIS 156 ( Ky. 1975 ).

Allocation of court costs and award of attorney’s fees are entirely within the discretion of the trial court. Browning v. Browning, 551 S.W.2d 823, 1977 Ky. App. LEXIS 707 (Ky. Ct. App. 1977).

The trial judge should determine if fees should be granted under his discretionary authority granted in this section, after he determines that fees are not mandatory under KRS 403.340(3). Dexter v. Spainhoward, 563 S.W.2d 474, 1978 Ky. App. LEXIS 478 (Ky. Ct. App. 1978).

Where the trial judge labors under the misconception that he lacks authority to award attorneys’ fees, it cannot be said that he exercised his discretion. Adkins v. Adkins, 574 S.W.2d 898, 1978 Ky. App. LEXIS 631 (Ky. Ct. App. 1978).

The trial court has a broad latitude in determining whether to assess attorney fees in a dissolution of marriage and where the trial judge thoroughly considered the provisions of this section and the appropriate stan- dards for awarding such fees, it did not abuse its discretion in requiring each party to pay for his own attorney. Russell v. Russell, 605 S.W.2d 33, 1980 Ky. App. LEXIS 363 (Ky. Ct. App. 1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3158, 69 L. Ed. 2d 1004, 1981 U.S. LEXIS 2764 (U.S. 1981).

The amount of an award of attorney’s fees is committed to the sound discretion of the trial court with good reason; that court is in the best position to observe conduct and tactics which waste the court’s and attorneys’ time and must be given wide latitude to sanction or discourage such conduct. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

The allocation of attorney’s fees is entirely within the discretion of the court and is not mandatory. In addition to $5,000.00 for attorney’s fees, the court awarded wife $3,500.00 for costs incurred in hiring expert witnesses. Furthermore, wife’s attorney’s fees totaling $17,000.00 were based on the cost of employing two attorneys. Considering this and the amount of property wife was awarded at trial, the Court of Appeals did not believe that the parties’ financial resources were such that the trial court abused its discretion. Underwood v. Underwood, 836 S.W.2d 439, 1992 Ky. App. LEXIS 164 (Ky. Ct. App. 1992), overruled in part, Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ).

The trial court’s refusal to order the husband to reimburse the wife for attorney’s fees she had paid did not abuse the trial court’s discretion, even where there was a financial disparity between the parties. Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ), overruled in part, Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

Where an ex-wife instituted divorce proceedings, she was ineligible to receive extra compensation under an antenuptial agreement; however, despite the agreement, the trial court failed to use its discretion to consider the disparity in the parties’ financial resources in determining whether to award attorney’s fees and costs. Ford v. Blue, 106 S.W.3d 470, 2003 Ky. App. LEXIS 100 (Ky. Ct. App. 2003).

Where there was a vast discrepancy between the mother’s income and the father’s income, the trial court did not abuse its discretion under KRS 403.220 in awarding the mother $2,829 in attorney’s fees and costs in the child support modification proceeding that the mother instituted. Finck v. Finck, 2005 Ky. App. Unpub. LEXIS 908 (Ky. Ct. App. May 27, 2005).

Since the wife clearly had greater financial resources than the husband, which definitively prevented her from receiving attorney’s fees, and it was clear that the trial court considered the parties’ conduct during the dissolution proceedings and the financial imbalance between them in ordering the wife to pay $30,000 of the husband’s attorney fees, there was no abuse of discretion. Smith v. Smith, 235 S.W.3d 1, 2006 Ky. App. LEXIS 36 (Ky. Ct. App. 2006).

2.Court Costs.

In divorce proceeding the court did not abuse its discretion in awarding allocation of liability for court costs to husband. Beaver v. Beaver, 551 S.W.2d 23, 1977 Ky. App. LEXIS 692 (Ky. Ct. App. 1977).

In assessing costs, including attorneys’ fees, against husband in divorce action, the trial court found disparity in the financial resources of the parties, and under the statute, no more is required. Gentry v. Gentry, 798 S.W.2d 928, 1990 Ky. LEXIS 117 ( Ky. 1990 ).

3.Attorney’s Fees.

Ky. Rev. Stat. Ann. § 403.220 permitted an attorney's fee award given the General Assembly's concerns with insuring that the financially less fortunate party would have the ability to make an adequate response Rumpel v. Rumpel, 438 S.W.3d 354, 2014 Ky. LEXIS 331 ( Ky. 2014 ).

Trial court did not err in awarding the wife attorney fees based on the fact that the husband had a hiring earning capacity. Lambe v. Weber, 2014 Ky. App. LEXIS 177 (Ky. Ct. App. Nov. 14, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1053 (Ky. Ct. App. Nov. 14, 2014).

In divorce action, allowance of an attorney’s fee is to be taxed as costs and is to be made pursuant to a motion for same. Such allowance in no way partakes of the qualities of a legal issue growing out of the clause of action, and mere fact that an attorney withdrew from case does not create such a legal issue. Buttermann v. Fox, 312 Ky. 652 , 229 S.W.2d 160, 1950 Ky. LEXIS 715 ( Ky. 1950 ) (decided under prior law).

Interest is allowable on an award of attorney’s fees in a divorce proceeding because such fees are part of the court costs. Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

Fees of out-of-state attorney for representing wife in divorce proceedings and taking out-of-state depositions were properly taxed as costs payable by husband. Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

Allowance of $17,500 fee to wife’s attorney in divorce proceeding was not exorbitant and excessive since considering the extent of the litigation and the amount of property involved as reflected by the record, it appeared that adequate information was available to the chancellor to justify the allowance made. Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

In connection with claim that attorney’s fee allowed wife’s attorney in divorce proceeding was excessive and exorbitant, action of trial court denying husband the opportunity to take deposition of the attorney for the purpose of ascertaining facts pertinent to the consideration of the amount of attorney’s fees to be allowed was improper, but where no prejudice resulted the award would not be disturbed. Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

Where husband argued that since both parties have adequate financial resources it was a clear abuse of discretion to award an attorney’s fee to his former wife’s attorney against him, but husband did not name his former wife’s attorney a party to the appeal, such appeal must fail since the attorney must be made a party to the appeal whether the fee is adjudged to be paid directly to him or is allowed to one of the parties to the divorce in order to be included as a court-cost item. Beaver v. Beaver, 551 S.W.2d 23, 1977 Ky. App. LEXIS 692 (Ky. Ct. App. 1977).

Where the trial court assessed against a husband the attorney’s fees payable by the wife in a divorce action, it was error to attempt such an allowance without any evidence showing a need for it, since this section authorizes awards only when supported by an imbalance in the financial resources of the respective parties. Sullivan v. Levin, 555 S.W.2d 261, 1977 Ky. LEXIS 503 ( Ky. 1977 ).

The court’s authority to order payment of an attorney’s fee in a divorce action is strictly for the benefit of the client, not that of the attorney, and the power of the court to fix the fee payable by one of the parties to his own attorney is not conferred by this section so that the trial court exceeded its discretion in assessing attorney’s fees against both husband and wife at the request of the wife’s attorney. Sullivan v. Levin, 555 S.W.2d 261, 1977 Ky. LEXIS 503 ( Ky. 1977 ).

Where the attorneys originally representing a wife in a divorce action were discharged by her prior to entry of judgment, the trial court had no authority to consider the amount of their fee or award a recovery for the attorneys against their own client. Oliver v. Yates, 555 S.W.2d 263, 1977 Ky. LEXIS 504 ( Ky. 1977 ).

Where the sale or partitioning of real estate is merely incidental, and not primary, in an action for divorce, the court is precluded from awarding an attorney’s fee to be taxed as a part of the costs and paid out of the proceeds from the sale of the property as would occur in a partition suit pursuant to KRS 389A.030 ; rather, the remedy would be recovery from the husband pursuant to this section. Meredith v. Meredith, 619 S.W.2d 508, 1981 Ky. App. LEXIS 269 (Ky. Ct. App. 1981).

While the findings of the trial court or the record did not justify relief under the demanding standards of CR 60.02(f), there were sufficient findings to support the award of attorney’s fee pursuant to this section. Bishir v. Bishir, 698 S.W.2d 823, 1985 Ky. LEXIS 276 ( Ky. 1985 ), overruled in part, Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

While it would have been better practice for affidavits or other evidence to be submitted in support of an award of attorney’s fees, there was no abuse of discretion in the court’s award of $1,500, given the extent of the record, the number of depositions taken, and numerous motions involved. Poe v. Poe, 711 S.W.2d 849, 1986 Ky. App. LEXIS 1082 (Ky. Ct. App. 1986).

The trial court abused its discretion in ordering the husband to pay his former wife’s attorney fees of $2,500, in view of the court’s allowance of maintenance and equal division of the marital and nonmarital property, as well as the fact of the wife’s own employment. Drake v. Drake, 721 S.W.2d 728, 1986 Ky. App. LEXIS 1480 (Ky. Ct. App. 1986).

An allowance of attorney’s fees is authorized by this section only when it is supported by an imbalance in the financial resources of the respective parties. Lampton v. Lampton, 721 S.W.2d 736, 1986 Ky. App. LEXIS 1496 (Ky. Ct. App. 1986).

Where the resources of the parties were approximately equal, an award of attorney fees was an abuse of discretion. Lampton v. Lampton, 721 S.W.2d 736, 1986 Ky. App. LEXIS 1496 (Ky. Ct. App. 1986).

This section, which authorizes the court in certain divorce cases to order one party to pay a reasonable amount for attorney’s fees of the other party, is broad enough to authorize the payment of a fee to an attorney who has accepted representation of an indigent client under an express agreement that he would not charge his client any fee for his services. Hale v. Hale, 772 S.W.2d 628, 1989 Ky. LEXIS 62 ( Ky. 1989 ), overruled in part, Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

Where husband earned only $4,550 more a year than wife, but that figure represented approximately 27% of what wife earned per year, there was a disparity in financial resources justifying an award of attorney fees to wife. Glidewell v. Glidewell, 859 S.W.2d 675, 1993 Ky. App. LEXIS 51 (Ky. Ct. App. 1993).

The gross imbalance in the parties’ income, $45,000+ compared to $0, plus the wife’s lack of any income-producing property should have entitled her to an award of attorney fees pursuant to this section. Beckner v. Beckner, 903 S.W.2d 528, 1995 Ky. App. LEXIS 120 (Ky. Ct. App. 1995).

The statutory language is broad enough to authorize a trial court to require a party to advance prospective attorney’s fees necessary to enable the other party to obtain adequate representation. Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ), overruled in part, Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

A wife’s attorney was not an indispensable party to her request that she be reimbursed by the husband for fees she had already paid the attorney, nor to her appeal of the trial court’s denial of her request. Neidlinger v. Neidlinger, 52 S.W.3d 513, 2001 Ky. LEXIS 141 ( Ky. 2001 ), overruled in part, Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

Because the family court made the findings required by KRS 403.200(1), (2) and 403.220 , it properly awarded maintenance and attorney’s fees to the wife; as the husband had exclusive possession and use of the primary marital asset during the proceedings, retroactive judgment interest at 12 percent was proper under KRS 360.040. 2005 Ky. App. LEXIS 182 .

Since the record contained evidence that there was an imbalance in the financial resources of the husband and wife, which was in the husband’s favor, the trial court could justifiably award attorney fees to the wife. In particular, the husband continued to live “rent free” on a farm the husband had inherited before the marriage while the wife was leaving the marriage only with a small home that was fully encumbered. Jones v. Jones, 245 S.W.3d 815, 2008 Ky. App. LEXIS 24 (Ky. Ct. App. 2008).

In light of the husband’s failure to seek a more specific finding from the trial court, and in light of the fact that a finding of disparity in the parties’ financial resources due to the parties’ respective incomes was supported by the evidence, the trial court did not abuse its discretion in awarding the wife 25% of her attorney fees and expert witness fees. Allison v. Allison, 246 S.W.3d 898, 2008 Ky. App. LEXIS 35 (Ky. Ct. App. 2008).

Even though an issue relating to the reimbursement of attorney fees for an allegedly frivolous motion to set aside a divorce decree was not properly before an appellate court, the issue was still considered because the primary objective of appellate procedure was deciding cases on the merits, a cross-appellee made no objection himself, and no unfair prejudice resulted. At any rate, an argument that the trial court failed to make adequate findings of fact was rejected because a trial court judge exhaustively covered the division of marital assets post-judgment and was aware of the financial situation of the parties; it was not the province of an appellate court to substitute its judgment for the trial court’s decision with regard to attorney fee issues absent an abuse of discretion. Age v. Age, 340 S.W.3d 88, 2011 Ky. App. LEXIS 23 (Ky. Ct. App. 2011).

In a custody dispute between a father and maternal grandparents as part of a dissolution action in which the grandparents intervened, it was not necessary for the family court to conclude that the grandparents employed delay tactics to justify an award of attorney fees to the father. Rather, the only factor the family court was required to consider was the financial resources of the parties. The mere fact that litigation was lengthy and hotly contested, paired with consideration of the parties’ relative financial resources, was sufficient to permit an award of attorney fees under KRS 403.220 . Heltsley v. Frogge, 350 S.W.3d 807, 2011 Ky. App. LEXIS 100 (Ky. Ct. App. 2011).

Because the father made approximately $450,000 while working in Abu Dhabi, and he would be making about $250,000 a year at his new job in Texas, while the mother was making approximately $46,000 a year at her job, the trial court did not abuse its discretion in awarding some attorney fees to the mother due to the disparity of the parties’ incomes under KRS 403.220 . McIntosh v. Landrum, 377 S.W.3d 574, 2012 Ky. App. LEXIS 160 (Ky. Ct. App. 2012).

Trial court did not abuse its discretion in determining a wife did not need any additional reimbursement for attorney’s fees because the wife used marital funds to pay her attorney, both parties’ total attorneys’ fees were roughly equal, and the wife already used marital assets to pay most of the fees she owed and had sufficient nonmarital assets to assist her in paying her fees. Normandin v. Normandin, 2018 Ky. App. LEXIS 176 (Ky. Ct. App. June 1, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 960 (Ky. Ct. App. June 1, 2018).

Because the trial court followed the dictates of the statute, it did not err in assessing attorney’s fees against a husband after considering the parties’ financial resources; the trial court was in the best position to observe the lack of candor and cooperation that led to the accrual of many of the fees in the case, which it noted in its order. Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

Supreme court will no longer read a requirement into the statute that is not found within its plain language, and it overrules a line of cases insofar as they require a financial disparity in order for attorney’s fees to be awarded and return to the plain language of the statute; that language requires only that the trial court consider the financial resources of the parties before awarding attorney’s fees, not that a financial disparity exist. Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

Statutory language is plain: after a trial court considers the parties’ financial resources, it may order one party to pay a reasonable amount of the other party’s attorney’s fees; the statute does not require that a financial disparity must exist in order for the trial court to do so, rather, that language is a creature of case law born out of the supreme court’s decisions. Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

While financial disparity is no longer a threshold requirement which must be met in order for a trial court to award attorney’s fees, the financial disparity is still a viable factor for trial courts to consider in following the statute and looking at the parties’ total financial picture. Smith v. McGill, 556 S.W.3d 552, 2018 Ky. LEXIS 360 ( Ky. 2018 ).

4.— Attorney Becomes Party.

When judgment in divorce action allows wife’s attorney a fee, he thereby becomes a party in interest and the part of the judgment allowing the fee cannot be vacated or modified unless he is treated as a party in the proceedings to vacate or modify the judgment. Hutchinson v. Hutchinson, 293 Ky. 270 , 168 S.W.2d 738, 1943 Ky. LEXIS 589 ( Ky. 1943 ) (decided under prior law).

In divorce action where attorney of record was adjudged a fee by name, he became a party to suit and motion to dismiss suit was properly controlled by court for the purpose of protecting attorney’s rights. Huls v. Smith, 252 S.W.2d 917, 1952 Ky. LEXIS 1047 ( Ky. 1952 ) (decided under prior law).

5.— Discretion of Court.

Allowance of counsel fees in divorce action is for chancellor in exercise of sound discretion and will be disturbed only for abuse of discretion or where more than a doubt exists as to correctness of chancellor’s conclusion. Buttermann v. Fox, 312 Ky. 652 , 229 S.W.2d 160, 1950 Ky. LEXIS 715 ( Ky. 1950 ) (decided under prior law).

In post-divorce child custody proceedings, the chancellor, as in other items of cost, is vested with a discretion in adjudging the wife’s attorney’s fees against the husband. Barnes v. Barnes, 458 S.W.2d 772, 1970 Ky. LEXIS 187 ( Ky. 1970 ) (decided under prior law).

Where the chancellor was not convinced that he had the authority to award the mother attorney fees in a post-divorce custody proceeding, it could not be said that he exercised his discretion in denying the mother her attorney fees. Molloy v. Molloy, 460 S.W.2d 15, 1970 Ky. LEXIS 579 ( Ky. 1970 ) (decided under prior law).

In a dissolution of marriage proceeding, the court properly denied the husband’s request for attorney’s fees because it considered the financial resources of both parties throughout the lengthy proceedings. Specifically, the trial court did so when it ordered the husband to divide the marital portion of his retirement benefits and when it ordered the wife to pay the husband the judgment previously entered, plus interest. Bailey v. Bailey, 399 S.W.3d 797, 2013 Ky. App. LEXIS 74 (Ky. Ct. App. 2013).

6.— Determination of Amount.

Family court did not err in ordering the father to pay only $15,000 of the mother's $75,000 requested attorney's fees given the mother's liquidation of mutual funds from the parties joint account without permission. Weber v. Lambe, 513 S.W.3d 912, 2017 Ky. LEXIS 89 ( Ky. 2017 ).

Where no evidence was offered as to value of services rendered by attorney for wife suing for divorce, chancellor had right to look to record to ascertain services and fix value from his own knowledge of such matters. Heskamp v. Heskamp, 203 Ky. 75 , 261 S.W. 848, 1924 Ky. LEXIS 843 ( Ky. 1924 ) (decided under prior law).

Where in divorce action, no evidence is offered as to value of services rendered by attorney, chancellor has right to look into record to ascertain services and fix value from his own knowledge of such matters. Buttermann v. Fox, 312 Ky. 652 , 229 S.W.2d 160, 1950 Ky. LEXIS 715 ( Ky. 1950 ) (decided under prior law).

Factors to be considered in fixing attorney fees are (1) amount and character of services, (2) labor, time and trouble, (3) nature and importance of litigation or business, (4) responsibility imposed, (5) amount of money or value of property affected or involved, (6) skill and experience required, (7) professional character and standing of the attorney, and (8) results secured. Boden v. Boden, 268 S.W.2d 632, 1954 Ky. LEXIS 913 ( Ky. 1954 ) (decided under prior law).

Where the wife’s attorney was named as a party in the appeal, but the husband in his brief made no effort to question the reasonableness of the fee, the reasonableness of the amount should be presumed. Gernert v. Gernert, 457 S.W.2d 831, 1970 Ky. LEXIS 218 ( Ky. 1970 ) (decided under prior law).

In deciding whether the husband should be required to pay the wife’s attorney fees in post-divorce custody proceedings, factors to be considered are whether the proceeding is for the benefit or welfare of the child involved, the mother’s personal interest in the custody case, the elem