When the topic of divorce comes up, one of the most common assumptions—and fears—is the idea of a mandated, clean 50/50 split of all assets. People often believe that every dollar, every piece of property, and every debt acquired during the marriage must be divided precisely in half.
But if you're facing divorce in the Bluegrass State, it’s time to set the record straight: Kentucky is NOT a community property state, and the division of marital property is not automatically 50/50.
Here is a breakdown of what you need to know about property division in a Kentucky divorce.
1. Kentucky Follows "Equitable Distribution"
The most important distinction to understand is that Kentucky is an equitable distribution state.
What does "equitable" mean? Simply put, it means fair, but not necessarily equal.
In an equitable distribution state, a judge's goal is to divide the marital property in a way that is "just" and "fair" based on the specific circumstances of the marriage. While an equal (50/50) division is often the starting point or a common outcome, it is not a legal requirement. A judge may award one spouse a larger or smaller share if the facts of the case warrant it.
2. Distinguishing Marital vs. Separate Property
Before any division can happen, the court must first classify all property as either marital or separate. Only marital property is subject to division.
- Marital Property: This generally includes all assets and debts acquired by either or both spouses during the marriage, regardless of whose name is on the title. Common examples include:
- The marital home and other real estate purchased during the marriage.
- Wages, income, and joint bank accounts.
- Retirement accounts and pension plans accumulated during the marriage.
- Credit card debt, mortgages, and loans acquired together.
- Separate Property (Non-Marital Property): This property belongs solely to one spouse and is not subject to division. Examples include:
- Property owned by one spouse before the marriage.
- Assets acquired during the marriage by gift or inheritance specifically to one spouse from a third party.
- The value increase of separate property, as long as the increase was passive (e.g., a stock market gain) and not due to the efforts of either spouse.
A common complication arises with commingling, which is when separate property gets mixed with marital property (e.g., using an inheritance to pay the mortgage on the marital home). In such cases, the court may have to determine how much of that asset remains separate and how much has become marital.
3. What Factors Determine a "Fair" Division?
If the spouses cannot agree on how to divide the marital property, the judge will make the final decision by considering several relevant factors to ensure an equitable outcome. These factors can include:
- Contribution of Each Spouse: This is not limited to financial contributions. The court considers the contribution of each spouse to acquiring the property, including the significant contributions of a spouse as a homemaker or stay-at-home parent.
- Duration of the Marriage: The length of the marriage can influence the division.
- Economic Circumstances of Each Spouse: The court considers the financial situation of each person when the division is set to take effect. This often includes considering the desirability of awarding the family home or the right to live there to the spouse who has custody of minor children.
- Value of Property Set Apart to Each Spouse: The court looks at the total value of separate property each spouse keeps.
It is important to note that marital misconduct or fault (such as infidelity) is not a factor in determining how marital property is divided.
The Bottom Line
While many divorces in Kentucky may result in a division that is close to 50/50 because that's what's deemed "fair," it is not the legal standard. The law requires an equitable division of marital assets, which may mean an unequal split depending on the unique facts and circumstances of the case.
If you are going through a divorce, don't rely on the "50/50" myth. Your best course of action is to consult with an experienced Kentucky family law attorney who can help you accurately classify your assets and advocate for a truly equitable distribution that protects your financial future.
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