Keith Doniphan Elston
Attorney at Law
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A divorce, referred to in Kentucky as a dissolution of marriage, is a decree by a court that a valid marriage no longer exists. A divorce leaves both parties free to remarry. It usually provides for division of property, and makes arrangements for child custody, visitation and support.
Most divorces do not end in a contested trial. Usually the parties negotiate and settle such things as division of property, spousal support, child custody and parenting time (also referred to as visitation) between themselves, often with an attorney's help. Sometimes parties reach agreement by mediation, with a trained mediator who tries to help them identify and accommodate common interests. The parties then present their negotiated agreement to a judge. Approval is virtually automatic if the agreement appears to meet a minimal standard of fairness.
If you and your spouse are unable to reach agreement about property, support, chid custody, or other matters, they you may ask the court to decide those issues.
Two threshold requirements for obtaining a divorce are residency or domicile of one or both parties who are to be divorced; and whether the marriage is irretrievably broken.
Residency refers to the state in which a person lives; domicile refers to the state that the person regards as home. Usually the state of a person's residency and domicile are the same, but sometimes they can be different. Kentucky law requires that at least one party resides in the state for a minimum of 180 days prior to the filing of the petition for dissolution of the marriage.
Irretrievable breakdown of a marriage is a determination that there is no reasonable prospect of reconciliation. If one or both parties have stated under oath or affirmation that the marriage is irretrievably broken, the court, after a hearing, will decide whether the evidence shows that the marriage is irretrievably broken. If one party denies that the marriage is irretrievably broken, the court may either (1) make a finding whether the marriage is irretrievably broken, or (2) continue the matter for further hearing and may suggest that the parties seek counseling. The court may also order a conciliation conference, but once these measures have been taken, the court will enter a finding. It is important, however, to understand that one spouse cannot prevent a dissolution of their marriage merely by claiming the marriage is not irretrievably broken. If one spouse believes it is irretrievably broken, that is usually sufficient for a court to enter a finding that it is.
Kentucky is a no-fault state. This means that neither the husband nor wife blames the other for the breakdown of the marriage. It is unnecessary to accuse the other of misconduct, or to prove guilt or fault. However, evidence of a party's misconduct, such as adultery, physical or mental cruelty, desertion, etc., may be used to determine whether, and to what extent, spousal support may be ordered, as well as child custody and visitation.
Kentucky law requires that the parties live apart for 60 days prior to the entry of the decree of dissolution. However, living apart includes living under the same roof, without sexual cohabitation.
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After your divorce, you may resume your unmarried name or keep your married name as you prefer. You may even change your name to something completely new, as long as you are not doing so for fraudulent purposes. If you are changing your name, you should notify government agencies and private companies that have records of your name. A name change can either be incorporated into a decree of dissolution, or informally, but public declaration. However, if you choose to change your name by public declaration, you may find that it is difficult to get the name changed in certain records and the agencies that keep those records may require a court order before they will make the change in their records.