In Kentucky, when the parties go through a divorce proceeding, one of the main questions is how to dispose of property. This includes property held in the name of one spouse as well as joint marital property. What are the factors used by the court in making that distribution? The good news is that there is a statute, KRS 403.190, which lays out the factors to be considered by the court in making at disposition.
The determination is made on a case-by-case basis. Here are some of the factors to be considered by the divorce court under KRS 403.190:
- How much money has been invested by each spouse in the property. For example, as to a family residence, who has paid the mortgage, taxes, insurance, or improvements. In making that determination, the value of a spouse as a homemaker can also be considered. The court would assign a fair market value for those services
- The duration of the marriage. Typically, the longer the marriage, the more each spouse has an interest in the property. The idea is to take care of each spouse because as they get older, they may not be as employable. This especially applies to the wife, who traditionally does not have a leg up in the job market.
- The economic circumstances of each spouse. For example, the spouse that has a substantial income and long-standing job, as compared to the other spouse who is a homemaker, might mean that the higher paying spouse receives less in the final distribution.
- As to the family residence, there will be preference to awarding it to the spouse who has custody of the children and who live in that residence. That does not mean that the spouse would receive the property free and clear, but it might be a quasi-unequal division where that spouse receives a larger percentage.
In making determinations, we have to define the phrase marital property and separate property. Marital property is property that has been acquired during marriage, as well as income derived during marriage. So if the husband is the only one working during marriage, that income is marital property, even though he is the sole breadwinner.
On the other hand, separate property is property acquired by gift or inheritance. So if the wife receives inheritance after her parents die, that is her sole and separate property. The only exception would be if she made a gift to her husband, or if it is co-mingled for the purposes of it becoming joint property.
What about how title is held? What if the title is held in the names of one of the spouses? It doesn’t make any difference if the property is acquired during marriage. In other words, if the property is acquired while married, title is immaterial and is considered marital property.
What about retirement benefits under KRS 403.190? If for example, the husband has separate property retirement benefits, and he receives them 100%, then the retirement benefits of the of his spouse must automatically be given to her.
In the last analysis, the court has discretion to make the award, which is deemed equal and equitable between the parties. For this reason, there is no set formula under KRS 403.190