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DISSOLUTION OF MARRIAGE
Introduction A dissolution of marriage is the legal procedure which terminates a marital relationship. Dissolution actions are governed by state laws and state judicial decisions. During this process, if the parties are unable to reach an agreement; the Court will divide the marital assets; allocate the division of the parties’ debts, decide the issues of custody and child support, and rule on any other relevant issues raised by the parties.
QUESTIONS AND ANSWERS
Each state of the United States has a residency requirement in effect for the filing of an action to dissolve a marriage. Kentucky requires that an individual must have been a resident of the Commonwealth of Kentucky for at least six months prior to the filing of any such proceeding. A dissolution of marriage proceeding is filed based upon the residence of the parties as opposed to the site where the marriage occurred.
To initiate a dissolution action in the Commonwealth of Kentucky, a party files a Petition for Dissolution of Marriage. The initial document contains primary factual information regarding the parties and their minor children, if any, and their request for relief. In the Petition which is the initiating document filed with the Court, the party must allege the marriage is irretrievably broken and there is no prospect for reconciliation between the parties. After the action is filed, the moving party must give notice to the other side. Notice is given in one of three ways – service of the Petition by the sheriff; service of the Petition by certified mail by the clerk of the county where the action was filed; or the other side executes a waiver of notice and entry of an appearance. It is usually after this process the party will, if needed, file motions for temporary relief with the Court. The motion may address various issues which include, but are not limited to custody, child support, maintenance, exclusive use of houses or cars or to require somebody to maintain medical insurance on the parties during the pendency of the action. This list is clearly not exhaustive, but only covers some of the issues which can be raised by a motion before a Court.
An uncontested dissolution of marriage proceeding is based upon full and complete agreement by and between the marriage partners. Both parties must be in complete agreement as to the division of all property, the payment of all debts, the allocation of parental rights regarding the parties’ minor child or children and the amount of child support. During a hearing of an uncontested divorce, the moving party must testify the marriage between the parties is irretrievably broken and that there is no prospect for reconciliation. The proposed separation agreement the parties have entered into must be approved and made an Order of the Court. Again, in an uncontested dissolution of marriage, the parties have reached an agreement regarding all issues which are pending before the Court. A contested dissolution of marriage occurs when the parties are unable to reach a complete agreement regarding the issues presently pending before the Court. The parties may disagree regarding the division of certain assets, the payment of certain debts, the issues of custody and child support and any other issues that may be pending before the Court. If the dissolution action is contested, the parties and their respective counsel argue the issues and their client’s position to the Court and the Court issues a final decision regarding the issues that were in dispute.
The guiding principle in a proceeding to dissolve a marriage is to insure an equal division of the parties’ property, not only their assets, but also their liabilities. This does not necessarily mean an equal division of the property. The division of property includes both real, i.e., land, and personal property, i.e., household furniture, belongings, etc. In the event the parties can arrive at an agreement as to the division of their property and debts, the Court has the authority to approve such an agreement. In order to determine an equitable division of property and debts, the Court considers a number of factors outlined by the state law or prior judicial case law. Any judicial decision must first include a determination as to what assets and liabilities constitute marital property subject to division. If a party can show that some of the property which was accumulated during the course of the marriage was non-marital property which belonged to that party, then, obviously, that property would not be subject to division by the Court.
A decree of dissolution of marriage provides for a termination of the marital relationship as well as a division of the marital property, including both assets and debts. This decree is binding upon the parties to the dissolution action. The failure by one party to comply with its terms may result in that particular party being held in contempt and subject to certain sanctions and penalties imposed by the Court. However, a decree of dissolution is not binding upon a third party creditor as said creditor is not a party to the dissolution of marriage proceeding. A third party creditor may still elect to pursue its collection and enforcement remedies despite what is contained in the decree of dissolution. Thus, the third party creditor may pursue appropriate remedies against any party with whom it has a contractual relationship and is not bound to follow the terms of the decree of dissolution which has been signed by the parties. 6. What is involved in deciding custody of the minor children? A dissolution of marriage proceeding must make a provision for determination of custody of the minor child or children or allocation of parental rights regarding their minor children. A guiding principle in this determination is what is in the best interests of the minor child or children. Absent an agreement by the parties which is approved by the Court, a Court must make a decision as to which parent is the appropriate parent to be awarded custody of the minor child or children. Factors used in such a decision or determination are enumerated in the statutes and based upon prior case law. The Courts are vested with authority to conduct custody evaluations if such an evaluation would offer insight into which party is more appropriate to have custody of their minor child or children. In the past, the Courts have opted to award custody of the minor child or children to one party. However, the Courts are now utilizing more joint custody or shared parenting arrangements to foster joint involvement by the parties in rearing their children.
The Commonwealth of Kentucky has devised and developed child support guidelines for determining the amount of child support to be paid in a particular case. These schedules include a number of factors including gross income of the parties, health care costs, child care or baby-sitting expenses and prior Court orders regarding children for which a party is ordered to pay child support. The Court does provide for a deviation from the schedule if such deviation is appropriate and in the best interests of the child or children. However, a deviation from the guidelines normally does not occur unless there is some shared parenting arrangement. Child support is generally paid until the child attains the age of 18 and has graduated from high school. However, child support is never paid for a child past his 19th birthday unless the child is disabled. In that case, child support may be paid for the lifetime of the minor child. Child support is often paid through the child support enforcement agency. The parties have the right to request the paying party to pay by means of a wage assignment to insure that the child support is deducted from the payor’s wages. THIS ARTICLE IS INTENDED TO DISCUSS GENERAL LEGAL PRINCIPLES. IT IS NOT INTENDED TO BE A SUBSTITUTE FOR SPECIFIC LEGAL ADVISE FROM AN EXPERIENCED ATTORNEY AS TO YOUR PARTICULAR SITUATION AND NEEDS.
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