In Kentucky, a declaration of invalidity, otherwise known as an annulment, is only permitted in very specific instances. And, due to the strict requirements necessary to apply for an annulment, a divorce, or dissolution of marriage, is more often the correct approach. However, if you are one of the few individuals seeking an annulment, here is what you need to know.
In order to successfully receive a decree from the court of a declaration of invalidity to your marriage, you must prove that:
Under KRS 403.120, if one party lacked capacity (as described above in #1, #2, or #3), an annulment must be applied for no later than 90 days after the party seeking the annulment obtained knowledge of the described condition. If the parties find that the marriage is prohibited, then either party can seek an annulment no later than one year after the petitioner obtained knowledge that the marriage was prohibited.
Force or duress requires the petitioner to show that their consent to marry was influenced by fear from threats and that their will was overcome by these threats. If you are threatened to marry but otherwise not influenced by these threats, then force or duress would not apply.
There are three categories of prohibited marriages in Kentucky. First, incestuous marriages. An incestuous marriage is a marriage to a family member closer than second cousins. This means that marriages between siblings, in-laws, nieces or nephews, or first cousins are all examples of incestuous marriages.
The second category of prohibited marriages are known as "other" marriages, which include:
While the second category of prohibited marriages, KRS 402.020, was updated in 2018, it is important to note that the law includes same-sex marriages as prohibited marriages. However, this is no longer the case.
The third category of prohibited marriages are marriages obtained by force or duress, or fraud.
Under KRS 402.210, if either of the parties is 17 years of age, a marriage license must not be issued unless the party who is 17 years of age presents to the clerk a copy of a court order that grants the party permission to marry and removed the party's disability of minority (see KRS 402.205), AND at least 15 days have elapsed since the court order was granted.
In order for an individual, 17 years of age, to seek the courts permission to marry, that individual must petition the court with an affidavit attesting to the consent to marry signed by:
Additionally, the petition must include a statement of reasons why the petitioner desires to marry and how long the parties have known each other, evidence of the petitioner's maturity (stable housing, employment, education, etc.), a copy of any criminal records of either party, and copies of any domestic violence orders or interpersonal protective orders involving either party to be married.
After an evidentiary hearing, the court must grant the Petitioner's petition to marry unless:
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One of the most dreaded answers in every divorce or child custody dispute is "it depends." What does that even mean? Well, in every divorce certain requirements must be met. These requirements might extend the time it takes for you to finalize your divorce. However, no two cases are the same.
For purposes of this divorce blog post, lets assume that the divorce is contested. You file your Petition for Dissolution of Marriage, along with all the required supporting documentation (if necessary). Now what? Here is a quick list of the top three facts that could increase the amount of time it takes to finalize your divorce:
Having a child, or children, could automatically make your divorce take longer to finalize. This is because Kentucky has a law that requires testimony to be postponed for sixty (60) days from the date of service, the appointment of a warning order attorney, or a responsive pleading by your spouse (see KRS 403.044). However, this doesn't prevent you or your spouse from seeking a temporary motion.
Investment properties typically extend the amount of time it takes to finalize your divorce because each party has their own beliefs regarding the value of the property, their interest in the property, and how the property will be distributed (refinance, assumption of the loan, or sale of the property). The information required in order to make reasonable proposals often takes time to collect and prepare. Retirement or brokerage accounts are similar in this regard.
The number one driving force behind the amount of time it takes to finalize your divorce - is you and your spouse. If the parties can come to an agreement (Marital Settlement Agreement) quickly, then the divorce could be finalized in as little as a couple of months. If the parties argue over every penny and every section of the proposed agreement, then mediation might be needed to move negotiations forward faster.
If mediation is necessary, then the time it will take to finalize your divorce will be longer. Assuming you and your spouse have legal representation, then you need to get five people on the same schedule. If the mediator is busy, then you could be forced to wait months before a time slot opens up, or be forced to find another mediator. Typically, if mediation is required, you should expend your divorce to take a few months longer.
If mediation fails because the parties disagree with the mediators attempts at settling, then trial might be required. The courts schedule is typically beyond your control. However, if exhibits and witnesses are necessary, then your trial date could be set out a few months. It is not uncommon for these type of cases to take one or more years to finalize.
Often, I hear the myth that a married couple must wait sixty days before the decree will be signed. This is incorrect. In Kentucky, the law states, in part, that no decree shall be entered until the parties have lived apart for sixty (60) days and living apart shall include living under the same roof without sexual cohabitation (see KRS 403.170(1)). For most individuals who seek a divorce, living under the same roof is common; however, most have lived without sexual cohabitation which means that the parties can move forward with requesting the court to sign the Decree for Dissolution of Marriage. This is also one of the reasons why uncontested divorces can happen so quickly.
Also, as an added bonus, distribution of property does not generally increase the time it takes to finalize your divorce. Many individuals believe that their divorce will not be finalized until the marital home is refinanced or sold. Generally speaking, this is not true because the Marital Settlement Agreement could simply state what the parties are planning to do with the property - not that it be done prior to decree.
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Here is the scenario: The husband wants to divorce his wife because they have lived apart for a few years now. The problem is that the husband lives in one county, the wife lives in another county, and they married in a different (third) county. Where does the husband file his Petition for Dissolution of Marriage? Also, what is required in a Petition for Dissolution of Marriage?
Assuming the husband and the spouse have lived in the same state their whole lives, this question is very common. After all, you may have just moved to a new county or are in the process of moving counties. The answer is simple but can cause some serious headaches if done improperly. An action for Dissolution of Marriage (divorce) must be brought in the county where:
Seems simple enough, but many individuals attempt to forum shop, or file in counties where they believe they will have the advantage for some reason. Now that you know where to file your Petition for Dissolution of Marriage, the next question is what is required in your Petition?
For starters, this question can become complex fast. Especially if you have children, one of the parties is a victim of domestic violence, one of the parties is pregnant, or if one of the parties suffers from unstable housing. However, all of your answers can be found in the Kentucky Revised Statutes (KRS). More specifically, KRS Chapter 403 Dissolution of Marriage - Child Custody.
In Chapter 403, is a provision on the procedure for commencement of action for a divorce (KRS 403.150), which states in part that a Petition for Dissolution of Marriage must allege
At first glance, this may seem overwhelming. But, most Petitions for Dissolution of Marriage are only a few pages in length (double-spaced [see your local court rules on formatting]), this changes if you have children or have a history of domestic violence cases.
This most common reason I have found for rejected Petitions for Dissolution of Marriage is lack of required information regarding the parties children. If the parties have children, then they should reference KRS 403.838. This statute provides the required information to be submitted to the court when the parties have children and are determining child custody.
The second most common reason I have found for rejected Petitions for Dissolution of Marriage is lack of complying with KRS 403.135. If you provide personal identifiers, which is required by law in an action for Dissolution of Marriage, then you must provide a redacted and unredacted copy to the court.
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As more and more individuals near retirement, "grey divorces" are statistically on the rise. In essence, a "grey divorce" is simply a couple that decides to divorce after the age of 40. And, since the rise of these type of divorces, the issue as to whether Social Security benefits are considered marital property seems to be a common question asked in these type of divorce consultations.
In short, the answer is a little more complex than a simple "no." The Social Security Act provides an explicit benefit plan and scheme by which divorced spouses may be entitled to a portion of their former spouse's benefits (research surviving divorced spouse benefits). Additionally, the Social Security Act includes an anti-alienation clause providing that all future payments shall not be transferrable or assignable and that all moneys paid or payable shall not be subject to garnishment, levy, etc.
So, does this mean family court judges simply ignore your Social Security benefits? Again, the answer here is also a little more complex than a simple "no." In Kentucky, and in many other states, the courts have determined that while the trial court may not value and include Social Security benefits in the couple's marital estate, the court may consider a spouse's anticipated Social Security benefits as one factor, among many, in dividing the overall marital estate.
Simply stated, mere consideration of non-prospective Social Security benefits in formulating a division of marital property is not preempted by federal law because mere consideration of the benefit does not constitute a transfer, assignment, or other legal process as prohibited by the anti-alienation provisions of the Social Security Act.
You might be wondering when this might become an issue in your divorce. One example - an individual is receiving Social Security benefits and making a claim to maintenance (alimony) during your divorce. Another example - an individual is seeking an equalization lump-sum payment but will receive Social Security benefits in the near future.
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If you’re going through a divorce, you probably have a lot of questions for your attorney—like what a divorce will mean for your children, home, retirement, and debts. Your attorney will have a lot of questions, too, though, and you’ll need to be prepared when you meet with them. To help you prepare, we put together a list of some of the questions any top divorce attorney will ask you in your initial consultation:
Couples going through a divorce experience different kinds of living situations, depending on whether or not they’re already separated and a number of other factors. It is important for your lawyer to understand your current situation and whether or not it is working for you.
Some other questions they will ask in regards to your home include:
Understanding every aspect of your current living situation and how you want to divide (or not divide) your real estate is an important step to finding the best outcome for you and your family.
We understand that dealing with children as a part of your divorce can be very stressful and emotionally draining. Your lawyer can help you find the best solutions for your family. Children under 18 still require a great deal of care, and if you and your spouse have minor children, then you and your attorney will need to figure out a parenting plan. Moreover, it is important for your lawyer to be prepared for any child custody or child support issues that may come up in your case.
Here are a few other questions that your attorney may ask about your children:
We know how important your children are to you, and our team is dedicated to helping you do what is best for them. Any top divorce attorney wants to ensure stability and happiness in your lives after your divorce.
While most states offer "no-fault" divorces, meaning you don’t have to prove your spouse did anything wrong to file for divorce, it is still important for your attorney to understand what led to your separation. If one spouse wronged another, especially as it pertains to finances or domestic violence, then that could have implications on alimony payments or the division of assets.
In addition, here are a few other questions you may be asked:
The first step to understanding your assets and debts is to make two separate lists. One with your mortgage, cars, bank accounts, retirement account, other real estate and major property, and any other items of value (electronics, jewelry, etc.) The second list will include your mortgage, car loans, credit cards, student loans, and any other liabilities.
To better understand what you want out of the division of assets, your attorney may ask some of the following questions:
Any top divorce lawyer will want to understand what your goals and concerns are for your divorce. At Wise Law, we go above and beyond that. We want to know what success looks like to you from day one, so that we can progressively work toward a better solution for you and your family.
We will go over each of the above categories and discuss at length what your goals for each step are. How you want to parent your children in the future, what you want to do with your home, how you want to divide your assets, and more. When we know what your priorities are, it makes it easier for us to focus on what’s important to you and prepare a strategy to help you achieve those goals.
No matter whether it's contested and uncontested, divorce can be a stressful process. When you're looking for guidance and support through your divorce, trust Wise Law as your divorce attorney. We focus on compassion and communication to support you through the many questions and concerns you have. If you have questions about going through a divorce in Kentucky, schedule an initial consultation with us.
When you’re looking for the right Louisville divorce lawyer, you don’t just want the one closest to your front door. You want the one who will truly help you and your family through a difficult time. Finding the best fit for your situation requires understanding your own needs, doing research, and potentially doing a few free consultations to figure out who will work best for you.
To help you as you make this decision, here are a few things to consider about attorneys in general and what it is like to work with our team at Wise Law.
Retainers are the fees that a lawyer can charge you upfront to represent you in your court case. Depending on the complexity of your case and the profile of the attorney you’re hiring, you can expect to pay $1,000 or more on just the retainer fee. Many, however, will more than likely charge somewhere between $3,000 and $5,000.
Like we mentioned, a retainer fee is just your upfront costs. Once you "use up" the time covered by your retainer, you could still be left with the hourly rate of your lawyer, plus any other fees associated with going to court.
Our goal at Wise Law is to relieve stress, not add to it. That’s why we take a different approach to legal services that include greater communication and elimination of outdated billing methods.
With a subscription-based billing method, we eliminate the concern and anxiety associated with lump-sum payments and hourly rates by using a flat weekly, biweekly, or monthly rate for legal representation. From day one, our clients know how much they will be paying, when it will be paid, and when it will stop. We work out payment structures with each client that is tailored to their income and preferences.
In fact, without the continuous billing for every interaction, we are able to save our clients money in the long run. We put a cap on what our clients pay, and whether it takes 10 minutes or 10 hours, our clients deserve time with us worry-free. We are here to listen, not to rack up the highest bill possible.
There is no doubt that this is a very trying time in the life of your family. Things are changing and you don’t necessarily know what the outcome will be. Helping you through this hardship is part of your divorce lawyer’s job, and you want to work with someone who is willing to take the time to get to know you and your case first and foremost.
You also want a lawyer who:
At Wise Law, we do everything we listed and more. Trust is the foundation of our relationship with clients. We focus on active listening and communication to reduce the amount of anxiety typically felt by clients who do not know what to expect. Working in family law is about a lot more than just "winning" court cases. We want to know what success actually means to you before we approach a case.
Looking for more information about getting a divorce in Kentucky? Here are some questions a top divorce attorney might ask you!
Here at Wise Law, we take a more compassionate, modern approach to "winning" for our clients. If you're ready to talk to a Kentucky divorce lawyer, we're here for you. Schedule an initial phone consultation during which we'll learn more about your situation and how Wise Law can help you.
