Is There Any Benefit to Filing for Divorce Before Your Spouse in Kentucky?
As a general rule, it doesn’t make a difference which spouse files first. I’ve seen some people who know they’re about to go through a divorce wait for their spouse to file first to avoid paying the filing fee or to cut corners. Other people look at the order of filing as going on offense versus being on defense. Acting on offense has been seen to benefit men in particular, as most people think men have to work a bit harder when the law previously seemed more favorable toward their female counterparts. For example, we might have a man come in and say, “Look, I’m a good dad. Unfortunately, our marriage is going down the tubes, but I want to exert my legal rights and get a good order from the start.” Those types of people generally come out ahead of people who just sit back and let the other spouse control the narrative. It looks favorable to be the first spouse to say, “There are problems, and we need this resolved. I’m not here to play games.” That person usually doesn’t have as much explaining to do as someone who is responding and playing defense.
Another thing we see is that a high number of divorces begin with one spouse requesting a protection order after arguments have turned physical. That means that the first time that family’s name is filed at the courthouse is for a petition that will probably contain some pretty serious allegations. We have a one-family one-court system, so the same judge who reviewed the request for a protection order will also review the divorce. Some people will use this system as a way of getting a leg up on custody.
Once Someone Files for a Divorce in Kentucky, What Is the Timeline Leading up to the Point Where the Decree Is Finalized?
We usually break divorces down into three phases. Phase One, the orientation phase, is usually complete once the petition is filed and the other person is notified that they have 20 days to respond, get an attorney onboard, and let their spouse know if they’ll be contesting.
Phase Two, which usually spans day 20 to day 45, is the financial disclosure phase. During this phase, the parties are supposed to file a financial disclosure outlining what their assets and their debts are, along with basic information about any kids they may have. Judges like to have that information in the file within 30 to 45 days after the case is filed.
Phase Three, the resolution phase, takes between 15 and 20 days. In Kentucky, cases have to be pending for 60 days before a judge will sign a decree, and that’s due to a couple of reasons. First of all, the couple has to be separated for 60 days, which basically means they have to be physically separated. Most people assume that means they have to be living under separate roofs, but Kentucky actually has an interesting definition of living separately. We have cases where parties have been married for 20 years and are still living in the same house but are considered separated in the court’s eyes because they haven’t slept in the same bed for five years. To be considered living separately in Kentucky, the couple cannot have intimate relations together—if they were to engage in a physical act, it would break the 60-day separation period.
The second thing the judge looks for before signing a decree is whether the couple has any children. Cases for couples with children have to go on for at least 60 days, regardless of whether they’ve been physically separated already.
Let’s say a couple has not slept in the same bed in five years but has a minor child. Even though they meet the 60-day requirement for being physically separated, they still have to wait 60 days after the case starts before a judge will sign off on the decree. The premise behind the law is to provide a cooling off period to prevent ending a marriage that involves other human beings prematurely. Judges want parents to take a couple of months to think about the divorce.
If the parties agree on everything, then they just have to get an agreement prepared by us or the other attorney, and once everybody signs off and that 60-day period is met, the case goes to the judge. Normally, the judge will sign without any court appearance necessary.
Obviously, if it’s a case that doesn’t involve an agreement, then the resolution phase could take much longer. The parties may be ordered to go to mediation or have to wait for a court date. Contested divorces can take months versus the weeks required to handle your best-case scenario divorce.
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