Overview of Property Division in a Divorce
Property division in a divorce applies to much more than real estate - it also involves dealing with the debts, cash, personal property, retirement accounts, bank accounts and other marital assets of divorcing spouses.
Kentucky courts follow the majority of states by dividing a divorcing couple’s marital assets equitably (fairly). Unlike some states, which have community property rules that require an equal division of marital property and debts, Kentucky requires a fair, although not necessarily equal, division of property.
What is the Difference Between Separate and Marital Property in Kentucky?
Before a Kentucky court will divide property in a divorce, it must determine whether any of the property is owned separately by one spouse (non-marital). After separate property and assets are awarded to a certain spouse, the court will equitably divide all remaining marital property between the spouses.
Separate or non-marital property is not subject to division in a divorce. Because of this, spouses often argue in court over whether certain marital assets can be considered separate. Separate property typically includes:
- property acquired before the marriage
- property acquired during the marriage by inheritance or gift from a third-party (not from the other spouse)
- property acquired during the marriage from the sale or exchange of separate property, and
- property defined as separate under a premarital agreement.
Marital property is subject to equitable division in Kentucky. All property that is not separate is considered marital property. Specifically, marital property typically includes:
- property acquired by either spouse during the marriage that is not separate (for example, retirement accounts, money, real estate)
- property acquired before the marriage where title is held by both spouses or commingled, such as real estate held jointly by the spouses, and
- property acquired before the marriage that has increased substantially in value due to marital contributions, such as a separate property business or home that was worth little before the marriage but increased significantly due to financial or labor-driven improvements made by the spouses during the marriage.
How is Property Divided in Kentucky?
In Kentucky, spouses can reach their own property agreements outside of court, with or without the help of an attorney. However, a court will still evaluate the property agreement and will generally approve such an agreement as long as it is in writing and each spouse has had an opportunity to consult with an attorney. If the spouses are unable to reach an agreement to divide property, they must go to court and a judge will make a decision on property division.
Property is divided equitably in Kentucky, which may be an unequal division after the judge considers all relevant issues, including:
- the length of marriage
- the value of property awarded to each spouse
- each spouse's contributions (if any) to the acquisition of marital property, and
- each spouse's economic needs and circumstances.
How are Debts Divided in Kentucky?
Courts will also divide marital debts in a divorce based upon several factors, including:
- the debts and liabilities of each spouse
- the economic circumstances of each spouse, and
- the basis underlying the debt (whether the debt was incurred recklessly by one spouse, such as with a gambling debt).
Even if the court orders your spouse to be completely responsible for paying a joint debt, a creditor may still try to come after you for payment. You should take additional steps to protect yourself; use the court order to remove your name from the account, if possible.
For more specific information regarding debt and property division in Kentucky, please contact a local family law attorney for help.
For more information on the factors Kentucky courts consider when dividing property in a divorce, see KRS §403.190.