In states with community property laws, marital assets are divided equally in a divorce even if this would lead to an unfair outcome. However, Kentucky and most other states follow the equitable distribution doctrine, which means that they are divided fairly, but not necessarily equally, in a divorce. When family law judges in Kentucky are tasked with determining an equitable distribution of marital property, they consider the length of the marriage, the economic circumstances of each of the spouses and the contributions made by each of the spouses during the marriage.
Marital misconduct
States with equitable distribution laws do not all approach property division in the same way. In states that grant at-fault divorces, marital misconduct, such as adultery, habitual drunkenness or abuse, is taken into consideration when judges decide how marital assets should be divided. Kentucky is a no-fault state, which means judges make property division decisions without regard to these matters. This means adulterous or abusive spouses are not treated more harshly in Kentucky when they divorce.
Separate property
Only assets that were acquired during a marriage are divided in a Kentucky divorce. Assets that are considered separate property and not subject to division include:
- Assets that were acquired by either spouse before the marriage
- Gifts and inheritances received by spouses during the marriage
- Property received in exchange for assets acquired before the marriage
- Assets excluded from division by a valid prenuptial or postnuptial agreement
All other assets are presumed to be marital property in a Kentucky divorce, and even separate property may be subject to division if marital assets like funds from a joint bank account were used to maintain or improve them.
Prenuptial and postnuptial agreements
Property division negotiations often become contentious when spouses divorce, and leaving these matters up to a judge to decide may leave one or both involved unhappy with the outcome. Spouses who wish to avoid these situations can act proactively by drafting prenuptial or postnuptial agreements. If they do, they should negotiate in good faith and work toward an agreement that is basically fair.