Divorce and Legal Separation in West Virginia

West Virginia Divorce Basics

Divorce in West Virginia is referred to as Absolute Divorce.

Residency Requirement:

To file for divorce, if the marriage was entered into within West Virginia, one or both parties must be an actual bona fide resident of West Virginia at the time the action is commenced, regardless of the length of residency.

If the couple did not marry in the state, to file for divorce, one of the parties must be a bona fide resident at the time the cause of action arose, or has become one since that time and the residency must have continued uninterrupted through the one-year period immediately preceding the filing of the action.

To file for divorce on the grounds of adultery, one of the parties must be a bona fide resident at the commencement of the action. However, if the Respondent (non-filing party) is a nonresident and cannot be personally served within West Virginia, the Petitioner (filing party) must have been an actual bona fide resident for at least one year immediately preceding the commencement of the action.

Filing:

The West Virginia circuit courts and family courts have jurisdiction to grant a divorce for any grounds fixed by law in the state, without regard to the law of the place where the marriage occurred or where the marital offense was committed.

Either or both parties to a marriage may initiate an action for divorce.

If the Respondent is a resident of the state, the Petitioner has an option to file a Petition for Divorce in the county where the parties last cohabited or in the county where the Respondent resides. If the Respondent is not a resident, the Petitioner has an option to bring the action in the county in which the parties last cohabited or in the county where the Petitioner resides.

Spouse’s Name:

When the court orders a divorce, if requested to do so by either party, it shall allow that party to resume the name used prior to his her first marriage. In the case of where the party has been married before, if requested by either party, the court shall allow that party to resume the name of a former spouse, if that party has any living child(ren) by marriage to the former spouse.

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Legal Grounds for Divorce

In West Virginia, a divorce may be granted for any of the following grounds.

1. Irreconcilable differences;

2. Voluntary separation, where the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year;

3. Cruel or inhuman treatment by either party against the other, including reasonable apprehension of bodily harm, false accusation of adultery or homosexuality, or conduct or treatment which destroys or tends to destroy the mental or physical well-being, happiness and welfare of the other and render continued cohabitation unsafe or unendurable;

4. Adultery;

5. Either of the parties subsequent to the marriage, has been convicted of a felony and the conviction is final;

6. Permanent and incurable insanity, if the party has been confined in a mental hospital or other similar institution for a period of not less than three consecutive years immediately preceding the filing of the complaint and the court has heard competent medical testimony that the insanity is permanently incurable;

7. Habitual drunkenness of either party subsequent to the marriage;

8. The addiction of either party, subsequent to the marriage, to the habitual use of any narcotic or dangerous drug;

9. Willful abandonment or desertion for sis months; or

10. Abuse or neglect of a child of the parties or one of the parties, meaning any physical or mental injury inflicted on the child and/or willful failure to provide, by party who has legal responsibility for the child, the necessary support, education as required by law, or medical, surgical or other care necessary for the well-being of the child.

A divorce may not be granted on the grounds of adultery if based on the uncorroborated testimony of a prostitute, or a known criminal or accomplice, nor when it appears that the parties voluntarily cohabited after the knowledge of the adultery, or that it occurred more than three years before the institution of the action.

No divorce may be granted when the offense charged has been condoned, or was committed by the procurement of connivance of the Plaintiff, or that the Plaintiff has, within three years before the institution of action, been guilty of adultery not condoned.

Annulment

The age of consent for marriage is 18 years of age. A person under the age of 18 lacks the capacity to contract a marriage, but may do so is he/she is at least 16 years of age and has obtained valid written consent from a parent or guardian.

If a party is under the age of 16, he/she may marry only with valid written consent from a parent or legal guardian and upon order of a circuit judge who has determined it is in the best interest of the minor to marry.

If a party to a marriage is under the age of consent and he/she has not obtained the necessary legal consent from a parent, guardian or court, the marriage is voidable, but it is valid until the marriage is actually annulled. Alternatively, the marriage may be ratified and may become completely valid and binding when the underage party reaches the age of consent. This ratification may include continued cohabitation as husband and wife after the age of consent is attained.

A man is prohibited from marrying his mother, grandmother, sister, daughter, granddaughter, half sister, aunt, brother’s daughter, sister’s daughter, first cousin or double cousin.

A woman is prohibited from marrying her father, grandfather, brother, son, grandson, half brother, uncle, brother’s son, sister’s son, first cousin or double cousin.

These prohibitions regarding relationships apply to both blood ties and those established by marriage. The relationship of cousin or double cousin does not apply when the relationship is created solely by adoption.

An action to annul or affirm a marriage may not be brought unless one of the parties is a resident of the state at the time the action is commenced. However, if neither party is a resident of the state, the action to annul may still be brought provided the marriage was performed in West Virginia and the parties have not established a matrimonial domicile elsewhere.

If the Respondent to an action for annulment or affirmation is a resident of the state, the Petitioner may bring the action in either the county where the parties last cohabited or in the county where the Respondent resides.

If the Respondent is not a resident, the Petitioner may bring the action in either the county where the parties last cohabited or in the county where the Petitioner resides.

If neither party is a resident of the state, the action must be brought in the county where the marriage was performed.

The following are voidable marriages and are void from the time they are so declared by a judgment order of nullity:

Bigamy;

Marriages prohibited by law due to blood relation or affinity between the parties;

Either party to the marriage was an insane person, idiot or imbecile;

Either party to the marriage was afflicted with a venereal disease;

Either party was incapable, because of natural or incurable impotency of the body, of entering into the marriage state;

Either party was under the age of consent, and had not obtained the necessary consent;

Either party had been, prior to the marriage and without the knowledge of the other party, convicted of an infamous offense;

A marriage solemnized when, at the time of the marriage, the wife, without the knowledge of the husband was with child by some person other than the husband;

The wife had been, prior to the marriage, notoriously a prostitute and the husband was not aware of this; or

A marriage solemnized when, prior to the marriage, the husband, without the knowledge of the wife, had been notoriously a licentious person.

An action for annulment may not be brought in the following cases:

Either party was naturally or incurably impotent of the body, but the other party had knowledge of the incapacity at the time of the marriage;

If the cause is fraud, force or coercion, but the injured party, after knowledge of the facts has by acts or conduct confirmed the marriage;

If the cause is affliction with a venereal disease existing at the time of marriage, the person may not bring the action if he/she has since been cured, and the non-afflicted person may not bring the action if after his/her spouse was cured, he/she has by acts or conduct confirmed the marriage;

If the cause is the nonage of either party, the underage party may not bring the action if he/she has by acts or conduct, confirmed the marriage after attaining the age of consent;

If the cause is the lack of consent by either party, the party who did consent or bring about the marriage may not bring the action;

If the cause is that either party has been convicted of an infamous offense prior to the marriage, if the injured party cohabited with the spouse after learning of the offence, he/she may not bring the action;

If the cause is that the wife was pregnant by someone other than the husband, or had been a prostitute, if the husband has cohabited with the wife after learning of the fact, he may not bring the action; or

If the cause is that the husband was notoriously a licentious person prior to the marriage, if the wife has cohabited with the husband after learning of the fact, she may not bring the action.

Property Division

Generally, upon every judgment of annulment, divorce or separation, the court shall divide the marital property of the parties equally between the parties.

If the parties have a separation agreement, the court will divide the marital property in accordance with this agreement, unless the court finds the following:

The agreement was obtained by fraud, duress or other unconscionable conduct by one of the parties;

That the parties, in the separation agreement, have not expressed themselves in terms which, if incorporated into a judicial order, would be enforceable by a court in future proceedings; or

That the agreement is so inequitable as to defeat the purpose of equitable and fair property distribution, and this agreement was inequitable at the time it was executed.

If there is agreement, the court presumes that all marital property shall be divided equally between the parties, but may alter this distribution, without regard to attribution of fault to either party, after consideration of the following factors.

The extent to which each party has contributed to the acquisition, preservation and maintenance, or increase in value of marital property by monetary contributions, including employment income and other earnings and funds which are separate property;

The extent to which each party has contributed to the acquisition, preservation and maintenance or increase in value of marital property by nonmonetary contributions, including homemaker services, child care services, labor performed without compensation or inadequate compensation in a family business or other business entity where the parties have an interest, labor performed in the actual maintenance or improvement of tangible marital property, labor performed in the management or investment of assets which are marital property;

The extent to which each party expended his/her efforts during the marriage in a manner which limited or decreased such party’s income-earning ability or increased the income-earning ability of the other party, including direct or indirect contributions to the education or training of one party which has increased the income-earning ability of the party and whether either party has foregone employment or other income-earning activity through an understanding of the parties or the insistence of the other party; and

The extent to which each party, during the marriage, may have conducted himself/herself so as to dissipate or depreciate the value of the marital property of the parties.

After considering these factors, the court shall proceed with the following:

Determine the net value of all marital property of the parties;

Designate the property which constitutes marital property, and define the interest in this property to which each party is entitled, as well as the value of their respective interest in said property;

Designate the property which constitutes separate property of the respective parties or the separate property of their children;

Determine the extent to which marital property is susceptible to division in accordance with the findings of the court as to the respective interests of the parties;

In the case of any property which is not susceptible to division, ascertain the projected results of a sale of such property;

Ascertain the projected effect of a division or transfer of ownership of income-producing property, in terms of the possible pecuniary loss to the parties or other persons which may result from an impairment of the property’s capacity to generate earnings; and

Transfer title to the component parts of the marital property that may be necessary to achieve an equitable distribution of the marital property.

Spousal Support

Spousal support may only be ordered when the parties are actually living separate and apart from one another. It may be paid as a lump sum, as periodic installments, or both, for the maintenance of the other party. The family courts and circuit courts have jurisdiction to award this support.

Spousal support is divided into the following four classes:

1. Permanent spousal support;

2. Temporary spousal support, otherwise known as spousal support pendent lite;

3. Rehabilitative spousal support; and

4. Spousal support in gross.

Rehabilitative spousal support is to be awarded for a limited period of time to allow the recipient spouse to become gainfully employed, when she/he demonstrates the potential for self-support that could be developed through rehabilitation, training or academic study.

In determining whether spousal support is to be awarded, and if so, the amount, the court shall consider and compare the fault or misconduct of either or both of the parties and the effect of the fault or misconduct as a contributing factor to the deterioration of the marital relationship.

The court shall consider the following factors in determining the amount of spousal support, child support or separate maintenance, if any to be ordered, as a supplement to or in place of the separation agreement:

The length of the marriage;

The period of time during the marriage when the parties actually lived together as husband and wife;

The present employment income and other recurring earnings of each party from any source;

The income-earning abilities of each of the parties, based upon such factors as educational background, training, employment skills, work experience, length of absence from the job market and custodial responsibilities for children;

The distribution of marital property to be made under the terms of the separation agreement or by the court, with regards to how the distribution affects or will affect the earnings of the parties and their ability to pay or their need to receive spousal support, child support or separate maintenance;

The ages and the physical, mental and emotional condition of each party;

The educational qualifications of each party;

Whether either party has foregone or postponed economic, education or employment opportunities during the course of the marriage;

The standard of living established during the marriage;

The likelihood that the party seeking spousal support, child support or separate maintenance can substantially increase his/her income-earning abilities within a reasonable time by acquiring additional education or training;

Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;

The anticipated expense of obtaining the education and training described above to increase the spouse’s income-earning abilities;

The costs of educating minor children;

The costs of providing health care for each of the parties and their minor children;

The tax consequences to each party;

The extent to which it would be inappropriate for a party, because that party will be the custodian of a minor child or children, to seek employment outside the home;

The financial need of each party;

The legal obligations of each party to support himself/herself and to support any other person;

Costs and care associated with a minor or adult child’s physical or mental disabilities; and

Any other factors that the court deems necessary or appropriate to consider in order to arrive at a fair and equitable grant of spousal support, child support or separate maintenance.

Divorce and Legal Separation in Texas

Texas Divorce Basics

Residency Requirement:

To file for divorce in Texas, either spouse must have been a resident of the state for at least six months prior to filing, and must have resided in the county where the Petition is filed for the prior 90 days.

For the court to exercise personal jurisdiction over a non-resident Respondent the couple’s last marital residence must have been in Texas, and the suit must be filed before the second anniversary of the date on which marital residence ended.

If one spouse has resided in Texas for the past six months and the other spouse lives in a different state or country, the spouse residing outside of Texas is permitted to file for divorce in the county in which the other spouse lives.

Military Personnel:

Texas residents serving in the armed forces and stationed outside of Texas or the U.S. may still be considered a resident of Texas. Military personnel, who have not been previous residents of Texas, but have been stationed at one or more military installations in Texas for at least the past six months, and at a military installation in a county of Texas for the prior 90 days, are considered to be Texas residents and residents of that county for the purposes of filing for divorce.

Pregnancy:

If one party is married, it is best to wait until the baby is born to seek a divorce. Most Texas courts will not finalize a divorce if the wife is pregnant, even if the baby is not the husband’s. The court will typically wait until after the birth of the baby so that orders regarding the child can be included in the final decree.

Filing:

The Petition for Divorce may be filed with the District Court of the county where either party lives. The Petitioner must give legal notice to the Respondent, other spouse.

If the Respondent does not file an Answer within 21 days from being officially served, the case is default and it may be possible to finish the divorce process without the Respondent.

There is usually a 60-day waiting period from the date the Petition is filed before a judge will grant a final divorce decree. The waiting period is not required if the court finds that the Respondent has been convicted of domestic violence offense against the Petitioner or a member of the Petitioner’s household, or if the Petitioner has an active protection order or an active magistrate’s order for emergency protection against the Respondent due to domestic violence committed during the marriage.

Neither party to a divorce may marry again, except each other, before the 31st day after the divorce is decreed, unless good cause is shown to the court.

Collaborative Divorce:

Upon written agreement of the parties and their attorneys, a dissolution of marriage proceeding may be conducted under collaborative law procedures.

Collaborative law is a procedure where the parties and their attorneys agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention, except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law.

If the collaborative law procedure fails to result in settlement of the dissolution dispute, the parties’ counsel must withdraw and may not represent the parties for divorce court proceedings.

Spouse’s Name:

Upon the specific request of a party to change his/her name to the one used prior to the marriage, the court may change the name of the party in a decree of Divorce or Annulment, unless the court states a reason for denying the name change in the decree.

The court may not deny a change of name simply to keep the last name of family members the same.

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Legal Grounds for Divorce

There are seven statutory grounds for divorce in Texas, most of which require a finding of fault on the part of one of the spouses. However, one grounds, insupportability, is considered no-fault and is used most often.

A divorce may be granted for any of the following grounds.

1. If the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation;

2. Cruelty by one spouse towards the other of a nature that renders living together unsupportable;

3. Adultery;

4. The commitment of a felony by one spouse, who has been imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary, or the penitentiary of another state, and who has not been pardoned (This does not apply if the spouse was convicted on the testimony of the other spouse);

5. Abandonment for at least one year;

6. If the couple have lived apart without cohabitation for at least three years; and

7. If, at the time the suit is filed, one of the spouses has been confined in a state mental hospital or private mental hospital in Texas or any other state for at least three years and it appears that the mental disorder is of such a degree and nature that adjustment is unlikely, or if adjustment occurs, a relapse is probable.

Annulment and Declaring a Marriage Void

In Texas, there are void marriages and voidable marriages. A voidable marriage is a marriage that should not have occurred, typically due to some sort of trick or deception at the time of the marriage. Parties to a voidable marriage may seek an annulment, declaring the marriage was not valid.

A void marriage, simple could never have been valid and cannot exist and so may be legally declared void by a court.

Annulment:

To file for annulment, the couple must have married in Texas or one of the parties lives in the state.

A court may grant an annulment when one of the parties is 16 or older, but under the age of 18 and entered into the marriage without parental consent or a court order. A petition for annulment for this reason may be filed by any to the following parties.

A next friend, for the benefit of the underage party (this party must file within 90 days after the date of the marriage, or the action will be barred);

A parent; or

A judicially designated managing conservator or guardian of the underage party, whether that be an individual, authorized agency or court.

The judge may use its discretion when granting an annulment for this reason, while considering the pertinent facts concerning the welfare of the parties to the marriage, including whether the wife is pregnant. Once the formerly underage party reaches the age of 18 years, a suit for annulment may no longer be filed.

Other grounds for annulment include the following:

At the time of the marriage, the petitioner was under the influence of alcohol or narcotics and therefore, did not have the capacity to consent to marriage;

Either party, for physical or mental reasons, was permanently impotent at the time of the marriage and the petitioner did not know of the impotency;

The other party used fraud, duress or force to induce the petitioner to enter into the marriage;

The petitioner did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect, at the time of marriage;

One party concealed a divorce, that occurred less than 30 days before the marriage, from the Petitioner, and the annulment suit is filed less than one year after the date of the marriage; or

If the parties married less than 72 hours after the marriage license was granted and the annulment suit is filed less than 30 days after the date of the marriage.

For any of these grounds to be valid, the petitioner must not have voluntarily cohabitated with the other spouse after learning of the issue at hand or after the petitioner is no longer under the influence of the issue. An annulment may not be granted after the death of either party to the marriage.

Declaring a Marriage Void:

To sue to have a marriage declared void, the alleged marriage must have been entered into in Texas or one of the parties lives in the state.

The following conditions render a marriage void.

If one party to the marriage is related to the other party by the following relationships: an ancestor or descendent by blood or adoption, as a brother or sister, as an aunt or uncle, or as a niece or nephew (all these relationships refer to whole, half, or by adoption);

Bigamy;

Both parties are the same sex;

Either party is younger than 16 years of age, unless a court order has been obtained; and

One party is a current or former stepchild or stepparent of the other party.

A marriage that is void due to bigamy may become valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married.

Neither same-sex marriages, nor civil unions are valid or recognized in Texas.

Property Division

North Carolina Divorce Basics

In North Carolina, divorce is referred to as Absolute Divorce.

Residency Requirement:

Either spouse must have resided in the State for a period of six months.

Military Personnel:

If a Plaintiff, filing spouse, or Defendant, other spouse, has resided or been stationed at a U.S. army, navy, marine corps, coast guard or air force installation or reservation or any other location pursuant to military duty within North Carolina for a period of six months prior to filing for divorce, it will constitute compliance with the residency requirement, as long as the Defendant is either served personally or accepts service, within or without the State as provided by law.

Filing:

The Plaintiff may file a Complaint for Divorce in the county where either she/he or the Respondent has resided for the prior six months.

Spouse’s Name:

Any woman whose marriage is dissolved by a decree of absolute divorce may, upon application to the clerk of court of the county in which she resides or where the divorce was granted, change her name to any of the following:

Her maiden name;

The surname of a prior deceased husband; or

The surname of a prior living husband if she has children who have that husband’s surname.

A man whose marriage is dissolved by decree of absolute divorce may, upon application to the clerk of court of the county in which he resides or where the divorce was granted, change the surname he took upon marriage to his pre-marriage surname.

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Legal Grounds for Divorce

There are only two grounds for absolute divorce in North Carolina:

1. The husband and wife have lived separate and apart for three consecutive years, without cohabitation, by reason of the incurable insanity of one of the spouses; or

2. The husband and wife have lived separate and apart for one year.

Grounds for divorce must have existed for at least six month prior to filing.

Annulment

In North Carolina, only a bigamous marriage is automatically void and does not require court action to make it so. A bigamous marriage is one where either party to the marriage already has a husband or wife living at the time of the subsequent marriage. This differs from a voidable marriage, which requires a court order.

A voidable marriage requires a court order of annulment to declare the marriage void. That means the marriage is considered to have never existed. The marriage is not automatically void, but requires a District Court declaring it so. Upon application by either party to a marriage contracted contrary to the Prohibitions contained in the North Carolina Marriage statutes, the district court may declare the marriage void from the beginning.

In North Carolina there are only certain narrow circumstances in which a marriage can be declared void. One of the following criteria must be proven in District Court to have a marriage declared void:

The parties are nearer in relationship than first cousins;

The parties are double first cousins;

Marriages between a male person under 16 years of age and any female, unless there is a court order as a result of a pregnancy of one between the ages of 14 and 16;

Marriages between a female person under 16 years of age and any male, unless there is a court order as a result of a pregnancy of one between the ages of 14 and 16;

Either of the spouses is physically impotent, as medically diagnosed by a doctor;

Either of the parties is mentally incapable of entering into a contract to marry, as determined by the court on a case-by-case basis; or

A marriage contracted under the representation and belief that the wife is pregnant, followed by the separation of the parties within 45 days of the marriage, where the separation was continuous for a period of one year, unless a child was born to the parties within ten months of the date of separation.

No marriage, except for a bigamous one, which is followed by cohabitation and the birth of a child, shall be declared void after the death of either of the parties.

Property Division

Divorce and Legal Separation in New Hampshire

New Hampshire Divorce Basics

Divorce in New Hampshire is known as Absolute Divorce or Divorce from the Bonds of Matrimony.

Residency Requirement:

To file for divorce in New Hampshire both parties must be domiciled in New Hampshire; the Plaintiff (filing spouse) is domiciled in the state; or the Plaintiff was domiciled in the state for a continuous one year period immediately before commencing the divorce action.

Proof that a person obtaining a Divorce from the Bonds of Matrimony in another jurisdiction was domiciled in this state within 12 months prior to the commencement of the proceeding, and resumed residence in this state within 18 months after the date of his/her departure, or at all times after his/her departure from New Hampshire and until his/her return maintained a place of residence within the state, shall be acceptable evidence that the person was domiciled in the state when the divorce proceeding was commenced.

A divorce obtained in another jurisdiction shall be of no force or effect in New Hampshire, if both parties to the marriage were domiciled in the jurisdiction of New Hampshire at the time the proceeding for the divorce was commenced.

Filing:

A Petition for Divorce from the Bonds of Matrimony must be filed in the Superior Court of the county where either party lives, and notice of the Petition must be given to the Respondent (non-filing spouse). If the parties file a Joint Petition, notice or further service is not required.

Service of Notice:

Service within New Hampshire shall be made by either of the following methods:

A sheriff, in hand or by leaving an attested copy of the Petition, Orders of Notice, and an Appearance form at the respondent's abode, within 25 days of receipt of Orders of Notice. The return of service shall state the street and number, or some other description, of the abode. The petitioner shall file the Return of Service with the court as proof of service;

Certified mail, return receipt requested, restricted delivery, mailed within 7 days of receipt of Orders of Notice, signed by the addressee only. The petitioner shall file the return receipt with the court as proof of service.

In lieu of service as described above for in-state, the court may, after issuing orders of notice, send notice to the respondent indicating that the petition has been filed and that the respondent or the respondent's attorney may accept service at the court within 10 days. If neither the respondent nor his/her attorney accepts service at the court within 10 days as specified in the correspondence, the Petition shall be forwarded to the petitioner for service in accordance with the methods described above.

Service outside the state shall be made by either of these methods:

An officer authorized to make service of process in the state where the respondent lives. Proof of out-of-state service shall be made by a return of the officer under oath, accompanied by an official certificate of his or her official character or authority. The petitioner shall file the Return of Service with the court as proof of service;

Certified mail, return receipt requested, restricted delivery, signed by the addressee only. The petitioner shall file the return receipt with the court as proof of service.

When the residence of the respondent is not known, the petition shall state the respondent's last known post office address, and the name and post office address of some near relative of the respondent, if any is known to the petitioner, and otherwise the name and post office address of some friend of the respondent, such facts to be verified by the petitioner's personal affidavit filed with the petition.

The petitioner shall file the petition with the court together with the name and address of a newspaper published in the city or town nearest to the respondent's last known address. Service shall then be ordered by publication in the newspaper, with publication to be completed not less than 15 days before the return date, and by certified mail addressed to the respondent, care of the relative or friend of the respondent, or otherwise as the court may order. Publication may be waived for good cause upon motion to the court.

Reconciliation:

Whenever, before or during a hearing but before a final decree, the court determines that there is a likelihood for rehabilitation of the marriage relationship, it shall refer the parties to an appropriate counseling agency within its jurisdiction. If the court determines that there is a reasonable possibility of reconciliation, it shall continue the proceedings and require that both parties submit to marriage counseling.

In the Case of Minor Children:

In the event of any divorce or separation action where there are minor children involved, the court shall, no later than the respondent's filing of an appearance, require the parties to attend a 4-hour information session. This session shall be a seminar on how to help the children deal with the issues surrounding divorce, separation, and the allocation of parental rights and responsibilities.

Spouse’s Name:

In any divorce or nullity of marriage proceeding, the court may restore a former name of the spouse, regardless of whether this request had been included in the original Petition.

The clerk of the superior court for each county, at the end of each term of court, shall return a full and correct list of all changes of names that have been decreed by the court since the last return, to the registrar of vital records.

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Civil Union and Same Sex Marriage

As of January 1, 2010, no new civil unions were allowed in New Hampshire.

Up until January 1, 2011, parties to New Hampshire civil unions were permitted to apply to the clerk of the town or city in which their civil union was recorded to have their civil union legally designated and recorded as a marriage, without any additional requirements of payment of marriage licensing fees or solemnization as required by statute (RSA 457), unless the civil union had been previously dissolved or annulled. These parties also had the option of applying and receiving a marriage license and having the marriage solemnized, provided that the parties were otherwise eligible to legally marry and that the parties to the marriage were the same as the parties to the civil union. The civil unions were then dissolved by operation of law by the marriage, as of the date of the marriage stated in the newly obtained marriage certificates.

Parties to civil unions already established prior to January 1, 2010, who did not convert/transform their union into a marriage prior to January 1, 2011, shall be deemed to be married as of January 1, 2011 and these civil unions were merged into such marriage by operation of law on January 1, 2011.

A civil union legally contracted outside of New Hampshire shall be recognized as a marriage in this state, provided that the relationship does not violate the statutes.

Minnesota Divorce Basics

Minnesota Divorce Basics

Divorce in Minnesota is referred to as Dissolution of Marriage.

Residency Requirement:

To obtain a divorce in Minnesota, one of the spouses must have lived in the state, or has been a member of the armed services stationed in the state, for at least 180 days before filing, or has a domicile in the state for at least 180 days before filing.

Filing:

The Petitioner (filing party) may file a Petition for Dissolution of Marriage in the county where either party resides. If neither party resides in the state, and jurisdiction is based on the domicile of either spouse, the proceeding may be commenced in the county where either party is domiciled. If neither party resides or is domiciled in the state and jurisdiction is premised upon one of the parties being a member of the armed forces stationed in Minnesota for at least 180 days before filing, the proceeding may be commenced in the county where the service member is stationed.

The Petitioner must personally serve the Respondent (non-filing party) with the Summons and Petition, unless a Joint Petition is filed. The Respondent has 30 days to answer the Petition. In the case of service by publication, the 30 day time period does not begin until the expiration of the period allowed for publication. In the case of a Counter-Petition for dissolution or legal separation to a Petition for Dissolution or Legal Separation, no Answer to the Counter-Petition is required, and the original Petitioner is deemed to have denied each and every statement, allegation and claim in the Counter-Petition.

Default:

If the Respondent does not appear after service duly made and proved, the court may hear and determine the proceeding as a default matter.

Summary Dissolution Process:

Summary Dissolution is a streamlined process for obtaining a divorce. To qualify for this process, the following requirements must be met:

No living minor children have been born to or adopted by the parties before or during the marriage, unless someone other than the husband has been adjudicated the father;

The wife is not pregnant;

The parties have been married fewer than eight years as of the date they file their joint declaration;

Neither party owns any real estate;

There are no unpaid debts in excess of $8,000 incurred by either or both parties during the marriage, excluding automobile liens;

The total fair market value of the marital assets does not exceed $25,000, including net equity on automobiles;

Neither party has non-marital assets in excess of $25,000; and

Neither party has been a victim of domestic abuse by the other.

A couple meeting the qualifying criteria may obtain a judgment and decree by filing a sworn joint declaration with both their signatures notarized, and watching an introductory and summary process video, if then available from the court, and certifying that they watched the video within the 30 days preceding the filing of the joint declaration.

The district court administrator shall enter a decree of dissolution 30 days after the filing of the joint declaration.

Spouse’s Name:

In the final decree of dissolution or legal separation the court shall, if requested by a party, change the name of that party to another name as the party requests.

The court shall grant a request unless it finds that there is intent to defraud or mislead. The court shall notify the parties that use of a different surname after dissolution or legal separation without complying with the law is a gross misdemeanor. The party’s new name shall be so designated in the final decree.

If the party requesting a name change has a felony conviction he/she must follow the applicable laws, which include serving a notice of application for a name change on the prosecuting authority that obtained the conviction against him/her.

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Legal Grounds for Divorce

Dissolution of a marriage shall be granted by a county or district court when the court finds that there has been an irretrievable breakdown of the marriage relationship.

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 the commencement of the proceeding and the prospect of reconciliation, and shall make a finding whether the marriage is irretrievably broken.

A finding that the marriage is irretrievably broken must be supported by evidence that the parties have lived separate and apart for at least 180 days immediately prior to the commencement of the proceeding, or there is serious marital discord adversely affecting the attitude of one or both of the parties toward the marriage.

Agreement:

If both parties by petition or otherwise have state under oath or affirmation that the marriage is irretrievably broken, or one of the parties has alleged this and the other has not denied it, the court shall make a finding that the marriage is irretrievably broken, after hearing.

Approval without Hearing:

Proposed Findings of Fact, Conclusions of Law, Order for Judgment, and Judgment and Decree must be submitted to the court for approval and filing without a final hearing in the following situations:

There are no minor children of the marriage, and the parties have entered into a written stipulation, or the Respondent has not appeared after service duly made and proved by affidavit and at least 20 days have passed since the time for filing an Answer has expired; or

There are minor children of the marriage, the parties have signed and acknowledged a stipulation and all parties are represented by counsel.

In any case where the proposed judgment and decree does not appear to be in the best interests of the minor children, or is contrary to the interests of justice, the court shall schedule the matter for hearing.

Annulment

All marriages prohibited by law shall be absolutely void, without any decree of dissolution or other legal proceedings, with the following exception. When a person who’s husband or wife has been absent for four successive years, without being known to the person to be living during that time, marries during the lifetime of the absent husband or wife, the marriage shall be void only from the time that its nullity is adjudged. If the absentee is declared dead, the subsequent marriage shall not be void.

A marriage shall be declared a nullity under the following circumstances:

A party lacked capacity to consent to the marriage at the time the marriage was solemnized, for either of the following reasons:

a. Mental incapacity or infirmity and the other party at the time the marriage was solemnized did not know of the incapacity;

b. Due to the influence of alcohol, drugs, or other incapacitating substances; or

c. Consent was obtained by force or fraud and there was not subsequent voluntary cohabitation of the parties.

A party lacks the physical capacity to consummate the marriage by sexual intercourse and the other party at the time the marriage was solemnized did not know of the incapacity;

A party was under the age of 16 years; or

A party was at least 16 years of age, but under the age of 18 years of age and had not obtained consent of his/her parent or guardian, or a court.

Filing for annulment and subsequent proceedings shall be held the same as in dissolutions. Upon due proof of the nullity of the marriage, it shall be adjudged null and void.

Laws related to property rights of the spouses, maintenance, support and custody of children upon dissolution of marriage are applicable to proceedings for annulment.

No marriage shall be adjudged a nullity on the ground that one of the parties was under the age of legal consent if it appears that the parties had voluntarily cohabitated together as husband and wife after having attained the age of legal consent. Nor shall the marriage of any insane person be adjudged void after restoration to reason, if it appears that the parties freely cohabitated together as husband and wife after such restoration.

An annulment may be sought by any of the following persons and must be commenced within the times specified, but in no event may an annulment be sought after the death of either party to the marriage:

On the ground that the party lacked capacity to marry, annulment may be sought by either party or by the legal representative of the party lacking capacity, no later than 90 days after the Petitioner obtained knowledge of the condition;

On the ground of impotence, annulment may be sought by either party no later than one year after the Petitioner obtained knowledge of the impotence;

On the ground of an underage party, the annulment may be sought by the under aged party or the party’s parent or guardian, before the time the under aged party reaches the age of legal consent.

Property Division

Upon a dissolution of a marriage or an annulment, the court shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property.

The court shall base its findings on all relevant factors, including the following:

The length of the marriage;

Any prior marriage of a party;

The age and health of each party;

The station, occupation, amount and sources of income of each party;

The vocational skills and employability of each party;

The estate, liabilities, needs, opportunity for future acquisition of capital assets and income of each party; and

The contribution of each party in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.

The court shall presume that each spouse made a substantial contribution to the acquisition of income and property while they were living together as husband and wife. The court may also award to either spouse the household goods and furniture of the parties, whether or not acquired during the marriage.

Marital property is defined as property, real or personal, including vested public or private pension plan benefits or rights, acquired by the parties, or either of them, to a dissolution, legal separation, or annulment proceeding at any time during the existence of the marriage, or at any time during which the parties were living together as husband and wife under a purported marriage relationship which is annulled in an annulment proceeding, but prior to the date of valuation.

All property acquired by either spouse after the marriage and before the valuation, is presumed to be marital property regardless of how it is titled.

Non-marital property is defined as property, real or personal, acquired by either spouse before, during or after the existence of their marriage which was acquired in the following ways;

As a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;

Acquired before the marriage;

In exchange for or is the increase in value of identified non-marital property;

By a spouse after the valuation date; or

Is excluded by a valid ante-nuptial contract.

If the court finds that either spouse’s resources or property, including the spouse’s portion of the marital property, are so inadequate as to work an unfair hardship, considering all relevant circumstances, the court may, in addition to the marital property, apportion up to one-half of the non-marital property, which is otherwise excluded, to prevent the unfair hardship.

Pension Plans:

The division of marital property that represents pension plan benefits or rights in the form of future pension plan payments:

Is payable only to the extent of the amount of the pension plan benefit payable under the terms of the plan;

Is not payable for a period that exceeds the time that pension plan benefits are payable to the pension plan benefit recipient;

Is not payable in a lump-sum amount from defined benefit pension plan assets attributable in any fashion to a spouse with the status of an active member, deferred retiree, or benefit recipient of a pension plan;

If the former spouse to whom the payments are to be made dies prior to the end of the specified payment period with the right to any remaining payments accruing to an estate or to more than one survivor, is payable only to a trustee on behalf of the estate or the group of survivors for subsequent apportionment by the trustee; and

In the case of defined benefit public pension plan benefits or rights, may not commence until the public plan member submits a valid application for a public pension plan benefit and the benefit becomes payable.

Maintenance

In a proceeding for dissolution of marriage or legal separation, the court may grant a maintenance order for either spouse if it finds either of the following regarding the spouse seeking maintenance:

He/she lacks sufficient property to provide for his/her reasonable needs considering the standard of living established during the marriage, especially a period of training or education; or

He/she is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, 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.

The maintenance order shall be in amounts and for periods of time, either temporary or permanent, as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including the following:

The financial resources of the requesting party, including marital property apportioned to the party, and his/her ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for him/her as custodian;

The time necessary to acquire sufficient education or training to enable the requesting party to find appropriate employment, and the probability, given his/her age and skills, of completing education or training and becoming fully or partially self-supporting;

The standard of living established during the marriage;

The length of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;

The loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the requesting spouse;

The age, and the physical and emotional condition of the requesting spouse;

The ability of the paying spouse to meet needs while meeting those of the requesting spouse; and

The contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business.

When there is some uncertainty regarding the necessity of a permanent award, the court shall order a permanent award leaving it order open for later modification.

The parties may expressly preclude or limit later modification of maintenance through a stipulation, if the court makes specific findings that the stipulation is fair and equitable, is supported by consideration described in the court’s findings, and that full disclosure of each party’s financial circumstances has occurred. The stipulation must be made a part of the judgment and decree.

Child Custody and Support

Upon adjudging the nullity of a marriage, or in a dissolution or separation proceeding, the court shall order as it deems just and proper, concerning the following:

The legal custody of the minor children of the parties which shall be sole or joint;

Their physical custody and residence; and

Their support.

Custody:

In a court of Minnesota which has jurisdiction to decide child custody matters, a child custody proceeding is commenced by a parent by filing a Petition for Dissolution or Legal Separation.

In determining custody, the court shall consider the best interests of each child and shall not prefer one parent over the other solely on the basis of the sex of the parent. All relevant factors will be considered and evaluated by the court, including the following:

The wishes of the child’s parent(s) as to custody;

The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;

The child’s primary caretaker;

The intimacy of the relationship between each parent and the child;

The interaction and interrelationship of the child with a parent(s) or siblings and any other person who may significantly affect the child’s best interests;

The child’s adjustment to home, school, and community;

The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

The permanence, as a family unit, of the existing or proposed custodial home;

The mental and physical health of all individuals involved, except that a disability of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;

The capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any;

The child’s cultural background;

The effect on the child of the actions of an abuser, if related to domestic abuse, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

Except in cases in which a finding of domestic abuse has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the parent with the child.

The court may not use one factor to the exclusion of all others. The primary caretaker factor may not be used as a presumption in determining the best interests of the child. The court may not consider conduct of a proposed custodian that does not affect the custodian’s relationship to the child.

In addition to the factors listed above, where either joint legal or joint physical custody is contemplated or sought, the court shall consider the following relevant factors when joint custody is sought:

The ability of parents to cooperate in the rearing of their children;

Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods;

Whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and

Whether domestic abuse has occurred between the parents.

The court will generally give preference to joint legal custody when requested by either or both parties, unless domestic abuse has occurred between the parents.

The court may interview the child in chambers to ascertain the child’s reasonable preference as to custodian, if the court deems the child to be of sufficient age to express preference.

Parenting Time:

Upon the request of either parent, the court shall grant such parenting time on behalf of the child and a parent that will enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child.

If the court finds, after a hearing, that parenting time with a parent is likely to endanger the child’s physical or emotional health or impair the child’s emotional development, the court shall restrict parenting time with that parent as to time, place, duration, or supervision and may deny parenting time entirely, as the circumstances warrant. The court shall consider the age of the child and the child’s relationship with the parent prior to the commencement of the proceeding.

Parenting Plans:

Upon the request of both parents, a parenting plan must be created in place of an order for child custody and parenting time unless the court makes detailed findings that the proposed plan is not in the best interests of the child.

Parenting plans must include the following elements:

A schedule of the time each parent spends with the child;

A designation of decision-making responsibilities regarding the child; and

A method of dispute resolution.

A parenting plan may include other issues and matters the parents agree to, regarding the child. Parents voluntarily agreeing to parenting plans may substitute other terms for physical and legal custody, including designations of joint or sole custody, provided that the terms used in the substitution are defined in the parenting plan.

If both parents do not agree to a parenting plan, the court may create one on its own motion, except in instances of domestic abuse against a parent or child who is a party or subject of, the matter.

Parenting Education:

In a contested proceeding involving custody or parenting time of a minor child, the parties must attend a minimum of eight hours in an orientation and parent education program that meets minimum standards established by the Minnesota Supreme Court within 30 days after the first filing with the court.

If past or present domestic abuse is alleged, the court shall not require the parties to attend the same parent education sessions and shall enter an order setting forth the manner in which the parties may safely participate in the program.

Support:

The legislature sets child support policy in Minnesota. The state’s child support guidelines, based on the Income Shares Model, determine support amounts using all the following criteria:

The income of both parents;

The number of children;

The cost of raising a child at different income levels; and

The availability and cost of medical support.

The guidelines use each parent’s monthly gross income and consider basic, medical and child care support. A parent’s monthly gross income is reduced by the amount of spousal maintenance or child support that the parent is ordered to pay from other support orders. Minnesota law allows a deduction from a parent’s monthly gross income for a maximum of two non-joint children in their home.

Basic support is for the child’s expenses, such as food, clothing and transportation, and does not include payments on arrears. It is calculated by multiplying the paying parent’s percentage of the combined Parental Income for Determining Child Support (PICS) by the combined basic support amount. If a court orders parenting time to the paying parent of ten percent or more, he/she may receive a deduction from basic support, based on the percentage of court-ordered parenting time.

Medical support is providing for or contributing to health care coverage for a joint child. If the custodial parent is determined to owe medical support, the amount will be subtracted from the non-custodial parent’s child support.

Child care support assists in paying for work or school related child care, and is based on each parent’s share of their combined PICS.

A parent of a child is liable for the amount of public assistance furnished to and for the benefit of the child, including any assistance furnished for the caretaker of the child, which the parent has had the ability to pay.

Legal Separation

Legal separation in Minnesota is a court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship. A decree of legal separation shall be granted when the court finds that one or both parties need a legal separation.

If one or both parties petition for a decree of legal separation and neither party contests the granting of the decree, nor petitions for a decree of dissolution, the court shall grant a decree of legal separation.

Temporary maintenance and temporary support may be awarded in a proceeding brought for legal separation. The court may also award to either party to the proceeding, having due regard to all the circumstances and the party awarded the custody of the children, the right to the exclusive use of the household goods and furniture of the parties pending the proceeding and the right to the use of the homestead of the parties, exclusive or otherwise, pending the proceeding.

Links to State Resources

Child Support Calculator

Minnesota Child Support Guidelines Calculator, provided by the Minnesota Department of Human Services.

Divorce Basics and Forms

Minnesota Judicial Branch Self Help Center overview of divorce with link to divorce forms.

Laws, Rules & More Resources on Child Support

Links to some of the laws and rules that pertain to child support in Minnesota.

Minnesota Statutes, Chapter 518 – Marriage Dissolution

Links to text of the Minnesota Statutes regarding divorce statutes, Annulment, Legal Separation, Custody and Parenting Time, Maintenance, Support and Property Division.

Divorce and Legal Separation in Kentucky

Kentucky Divorce Basics

Divorce in Kentucky is referred to as Dissolution of Marriage and as Divorce from the Bond of Matrimony.

Residency Requirement:

One of the parties must reside in the state, or if a member of the armed forces, be stationed in the state, and that residence or military presence must have been maintained for 180 days immediately preceding the filing of the Petition.

Filing:

The Petition for Dissolution of Marriage may be filed in circuit court.

In divorce actions where there are minor children of the marriage no testimony, other than on temporary motions, shall be taken or heard before 60 days have passed 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.

The Rules of Civil Procedure apply to all divorce proceedings.

Spouse’s Name:

Upon request by a wife whose marriage is dissolved or declared invalid, the court may, and if there are no children of the parties shall, order her maiden name or a former name restored.

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Legal Grounds for Divorce

Kentucky is a no-fault state, with only one ground for divorce, irretrievable breakdown of the marriage.

If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or if one of the parties has stated it and the other one has not denied it, the court, after hearing, shall make a finding whether the marriage is irretrievably broken.

If one of the parties denies under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that led to the Petition, and the prospect for reconciliation.

The court will either make a finding that the marriage is irretrievably broken, or continue the matter for further hearing, no less than 30, nor more than 60 days later, or as soon after as possible. The court may suggest to the parties that they seek counseling.

The court, at the request of either party 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. A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation.

The Circuit Court shall enter a decree of dissolution of marriage if it finds that the marriage is irretrievably broken, and 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.

The parties must live apart for at least 60 days before a decree may be entered. Living apart shall include living under the same roof without sexual cohabitation.

Annulment

Void and Prohibited Marriages:

Incestuous Marriage: those between persons who are nearer of kin to each other by blood (whole or half) than second cousins;

One of the parties has been adjudged mentally disabled by a court of competent jurisdiction;

A prior husband or wife is still living, from whom one of the parties marrying has not been divorced;

A marriage no solemnized or contracted in the presence of an authorized person or society;

Marriage between members of the same sex;

Marriage between more than two persons;

One party is under sixteen years of age, except in the case of pregnancy, when either the male or female has received permission to marry from a District Judge; and

One party is over 16, but under 18 years of age and has not received the consent of a parent, guardian or court as required by law.

A court having general jurisdiction may declare the following marriages void:

Any marriage obtained by force or fraud;

At the instance of any next friend, any marriage where the person was under 18 but over 16 years of age at the time of the marriage, without consent as legally required and the marriage has not been ratified by cohabitation after that age;

At the instance of any next friend, any marriage where the person was under 16 years of age at the time of the marriage, without the judicial consent as legally required, and the marriage has not been ratified by cohabitation after the person reached 18 years of age.

If any resident of Kentucky marries in another state, the marriage shall be valid in Kentucky if valid in the state where solemnized, unless the marriage is against Kentucky public policy. A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky.

Where there is doubt as to the validity of a marriage, either party may petition the Circuit Court to either void or affirm the marriage. However if one party to a marriage was within the age of consent at the time of marriage, he/she may not bring such a proceeding against the underage party.

The Circuit Court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:

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;

A party was induced to enter into a marriage by force or duress or by fraud involving the essentials of the marriage;

A party lacks the physical capacity to consummate the marriage by sexual intercourse, and the other party did not know of the incapacity at the time the marriage was solemnized; or

The marriage is prohibited by law.

A declaration of invalidity for these reasons may be sought by any of the following persons and must be commenced within the times specified:

On the grounds that the party lacked capacity to marry, entered into the marriage due to force, duress, or fraud, or impotency, the declaration may be sought by either party or by the legal representative of the party lacking capacity, who was the offended party or did not know of the incapacity, no later than 90 days after the Petitioner obtained knowledge of the condition; and

On the grounds that the marriage is prohibited by law, the declaration may be sought by either party no later than one year after the Petitioner obtained knowledge of the condition, but may not be sought after the death of either party to the marriage.

Property Division

In a proceeding for dissolution of marriage or for legal separation, the terms of a separation agreement, regarding division of property, 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.

If there is no agreement, the court shall determine distribution of property. It shall assign each spouse’s property to him/her. Kentucky is an equitable distribution state, which means the court shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including the following:

Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker;

Value of the property set apart to each spouse;

Length of the marriage; and

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 there for reasonable periods to the spouse having custody of any children.

Statute defines marital property as all property acquired by either spouse after the marriage and before a decree of legal separation regardless of how title is held, with the following exceptions:

Property acquired by gift, bequest, devise, or descent during the marriage and the income derived from that property, unless there are significant activities of either spouse which contributed to the increase in value of that property and the income earned from it;

Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent;

Property acquired by a spouse after a decree of legal separation;

Property excluded by valid agreement of the parties; and

The increase in value of property acquired before the marriage to the extent that the increase did not result from the efforts of the parties during the marriage.

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.

Maintenance

In a proceeding for dissolution of marriage or for legal separation, the terms of a separation agreement, regarding provisions for maintenance of either spouse, 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.

If there is no agreement, either party may move for temporary maintenance. The court may grant a maintenance order only if it finds that the spouse seeking maintenance lacks sufficient property to provide for his reasonable needs and is unable to support him/herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

The court shall consider all relevant factors, including the following, to determine the amount of the maintenance order and for what period of time it shall be awarded:

The financial resources of the party seeking maintenance, including marital property apportioned to him/her, and his/her ability to meet his/her 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;

The time necessary to acquire sufficient education or training to enable the requesting party to find appropriate employment;

The standard of living established during the marriage;

The length of the marriage;

The age, and the physical and emotional condition of the spouse seeking maintenance; and

The ability of the paying spouse to meet his/her needs while meeting those of the requesting spouse.

Child Custody and Support

Custody:

The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors including the following:

The wishes of the child's parent(s), and any de facto custodian, as to his/her custody;

The wishes of the child as to his/her custodian;

The interaction and interrelationship of the child with his parent(s), his/her siblings, and any other person who may significantly affect the child's best interests;

The child's adjustment to his/her home, school, and community;

The mental and physical health of all individuals involved;

Information, records, and evidence of domestic violence;

The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;

The intent of the parent(s) in placing the child with a de facto custodian; and

The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.

The court shall not consider conduct of a proposed custodian that does not affect his/her relationship to the child. If domestic violence and abuse is alleged, the court shall determine the extent to which the domestic violence and abuse has affected the child and the child’s relationship to both parents.

The abandonment of the family residence by a custodial party shall not be considered when that party was physically harmed or was seriously threatened with physical harm by his/her spouse, when the harm or threat of harm was causally related to the abandonment.

The court may grant joint custody to the child’s parents, or to the child’s parents and a de facto custodian, if it is in the best interest of the child.

A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would seriously endanger the child's physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child.

If domestic violence and abuse has been alleged, after hearing, the court shall determine the visitation arrangement, if any, which would not endanger the child’s or the custodian parent’s physical, mental, or emotional health.

If a parent of a child is convicted of murder or manslaughter in the first degree of the other parent, a court shall not grant the convicted parent visitation rights with respect to that child unless the

court, through a hearing, determines that visitation is in the child's best interest

Support:

In a proceeding for dissolution of marriage or legal separation either party, with notice to the opposing party, may move for temporary child support.

Kentucky uses the Income Shares Model to calculate child support obligations. The state’s child support guidelines and table are provided in the revised statutes.

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. 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 $60 per month.

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 guidelines table.

In a split custody arrangement, each parent is the residential custodian for one or more children for whom the parents share a joint legal responsibility. The child support obligation in this arrangement shall be calculated in the following manner:

Two separate child support obligation worksheets shall be prepared, one 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;

The nonresidential custodian with the greater monthly obligation amount shall pay the difference between the obligation amounts, as determined by the worksheets, to the other parent.

Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall terminate by emancipation of the child, unless he/she is a high student, when he/she reached the age of 18 years.

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 19 years.

Legal Separation and Divorce from Bed and Board

Legal Separation, also referred to as divorce from bed and board may be granted for the same grounds as divorce from the bond of matrimony, or for any other cause that the court considers sufficient.

A divorce from bed and board treats property acquired afterward and the personal rights and legal capacities of the parties similar to a divorce from the bond of matrimony, except that neither party may remarry someone else 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.

If a party requests a decree of legal separation, the court shall grant the decree in that form unless the other party objects. If the other party objects, the court will proceed in the same manner as when a dissolution of marriage is sought.

A couple may enter into a written separation agreement containing provisions for maintenance of either spouse, disposition of any property owned by either of them, and when applicable, custody, support and visitation of their children.

No earlier than one year after entry of a decree of legal separation, the court on motion of either party shall convert the decree to a decree of dissolution of marriage.

Links to State Resources

Child Support Enforcement (CSE)

Kentucky Cabinet for Health and Family Services (CHFS) Child Support Enforcement. Provides information on how to apply for child support, how to calculate one’s child support obligation and worksheets.

Divorce Education

Information about Divorce Education programs in Kentucky regarding the impact of divorce on children, with links and resources.

Kentucky Child Support Handbook

Online manual provided by the Cabinet for Health and Family Services’ (CHFS)

Kentucky Revised Statutes, Title 35, Chapter 402 – Marriage

Text of Kentucky laws regarding Marriage, annulment, etc.

Kentucky Revised Statutes, Title 35, Chapter 403 – Dissolution of Marriage

Text of Kentucky laws regarding divorce, maintenance, property division, child support and custody, legal separation, etc.