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Military Divorce and Custody of Children of Military Personnel Stationed in Kentucky


In 2005, California enacted a law saying a parent's absence due to military activation cannot be used to justify permanent changes in custody or visitation. Michigan and Kentucky followed suit, requiring that temporary changes made because of deployment revert back to the original agreement once deployment ends.

These laws limit the weight Family Courts can give to deployment-related circumstances in making custody decisions.  Similar legislation is being considered in the U.S. Senate.

See KRS 403.340 (Modification based on active duty deployment to revert back on parent or custodian's return), which mandates that custody modifications be temporary when based in whole or in part on a parent or de facto custodian's (1) deployment as a member of the armed forces outside the United States or (2) call to federal active duty as a member of a state's National Guard or Reserve component.  The previous custody arrangement must be reinstated when the deployment or activation ends unless the soldier-parent agrees to have the modified arrangement continue for a longer time.


Do I have to have "grounds" for divorce if I'm in the military?

The short answer is "No." For an explanation of "grounds for divorce" as that term might be used in Kentucky, see Grounds for Divorce on our website.

What are the requirements to file in Kentucky?

Resident of Kentucky for at least 6 months:

As with any divorce filed in Kentucky, one of the parties must have been a resident of Kentucky for at least 180 days before filing the petition for divorce. Any military personnel who have been stationed at a military base within the Commonwealth of Kentucky for at least 180 days meet this requirement, regardless of where their permanent homes ("home of record") may be situated.


Kentucky statutes provides the circuit courts with jurisdiction of a Family Law matter if it "finds that one of the parties, at the time the action was commenced, resided in this state, or was stationed in this state while a member of the armed services, and that the residence or military presence has been maintained for 180 days next preceding the filing of the petition."

What's the first step in filing for divorce in Kentucky?

A formal Petition for Dissolution of Marriage, Summons, VS-300 and Family Court Case Data Sheet must be filed with the Clerk of the Circuit Court or Family Court and served upon the other spouse.

How will my wife/husband be served?

Your spouse (the "Respondent") will likely be served either (a) by the County Sheriff or (b) by Certified Mail. In certain circumstances, it will be necessary to have a Special Bailiff appointed to make service, particularly if your husband or wife tries to avoid service.

What happens after he/she is served?

Your spouse has twenty (20) days from the date he or she is officially "served" with the Summons to file a response to that Petition or risk a default judgment being entered.

Will we have to take "parenting classes"?

If minor children are involved, in most Kentucky counties (especially Jefferson County), both parties must attend Families in Transition classes, which must also be attended by the children. A decree cannot be entered until these classes have been completed. However, it is possible to substitute participation in a similar program or to even have the court waive one's obligation to participate in special circumstances.

What if our divorce is uncontested?

In some counties (including Jefferson County), both parties still must file financial disclosures.

Uncontested divorces can progress fairly quickly once a settlement agreement has been drafted, executed and filed, particularly if no minor children are involved.

Do we have to file a settlement agreement?

Even if neither of you are contesting the divorce, then a settlement agreement must be signed by both parties and filed with the Court resolving all potential issues such as child custody, child support, child visitation, restoration of non-marital property, division of real and personal marital property, payment or waiver of maintenance (alimony), division of pensions/retirement benefits, division of responsibility for marital debts, etc. The Court will have to confirm that it does not find the terms set out in this agreement to be unconscionable.

Will my wife/husband have to get a lawyer?

The Respondent may choose to waive his/her right to legal counsel in this action and, if so, he or she must sign and file a formal waiver of that right.

Will we have to appear in court?

Assuming all of the above requirements have been satisfied, either party can submit "jurisdictional proof" in the form of written interrogatories administered under oath and the Court may then enter a Decree of Dissolution.  In settled cases, neither of the parties are required to make personal appearances in court.

Is there a waiting period in Kentucky?  

If minor children are involved, you will have to wait at least sixty (60) days after your spouse is served with the divorce petition before a Decree can be entered. If you are no longer stationed in the Commonwealth of Kentucky at the end of this 60-day period, it should be possible to proceed with the conclusion of the divorce action and entry of a decree.

When does my divorce become final?

If there are minor children involved, the parties will have to be before the court for a minimum of sixty days before a Decree of Dissolution can be entered.  That means 60 days after the Respondent (non-filing party) has been officially served with the Petition for Dissolution or 60 days after the Respondent signs an acknowledgment of service of the Petition.

If there are no minor children involved, the parties must be separated for a minimum of 60 days before the divorce can be finalized.  "Separation" can include the parties living in the same household, so long as they do not resume marital relations and it can include a period of separation prior to the filing of the Petition for Dissolution.  For instance, if the parties are separated for six weeks (35 days) before one of them files for divorce and that separation date is accurately stated in the Petition, and assuming an agreement is immediately filed with the court and assuming that there are no minor children involved, then when the remaining 25 days of the 60-day separation period is completed, it is possible for a Decree of Dissolution to be entered, making the divorce final.

Child Support, Child Custody & Visitation: 

See the Child Support and Child Custody sections of our website for general information on these subjects.  U.S. military regulations provide that, in the absence of a court order or separation agreement specifying support, the soldier is required to provide interim financial support to his family members in an amount equal to his/her basic allowance for quarters (BAQ) at the with-dependent rate. This amount may be pro-rated among his family members.

Courts decide the matter of custody based on what is best for the child with regard to his/her physical, mental, moral and spiritual well being.  This is referred to as the "best interest of the child".  The elements that go into this decision-making process may include the stability of each parent's household, the wishes of the respective parents, the preferences of the child, each parent's fitness as a parent and the overall health of everyone involved.  Typically, children are not split up between their parents' homes.  Non-custodial parents are almost always given reasonable visitation rights.  The exception to this would be a situation in which a parent poses a genuine risk to the health, safety and well-being of his/her child.

Child support is a mathematical formula established by the Kentucky Legislature.  Typically, the custodial parent is going to be awarded some measure of child support.  Both parents' gross monthly incomes are combined and applied to the Kentucky Child Support Guidelines chart, their respective percentages of that combined gross income is calculated and applied to the Guidelines amount and certain additional expenses such as work-related or school-related childcare as well as health insurance premiums are factored in and the final child support number is determined.  A child's extraordinary needs may also be considered (chronic illness, physical or mental handicaps, etc.)

It is not necessarily true that military personnel only owe child support equal to their basic allowance for housing (BAH) at the with-dependent rate.  For instance, Army regulations provide that, in the absence of a court order or separation/settlement agreement specifying child support terms, a soldier is required to provide interim financial support in an amount equal to the BAH at the with-dependent rate to his family members, which amount may then be divided among his family members.  The Army's formula is not intended as a substitute for the court's decision regarding child support.  [See Legal Briefs from the Fort Knox Legal Assistance Office for further discussion of this topic.]

Division of Property:

Kentucky law requires that, first, the parties' respective non-marital property must be restored to them.  Briefly, this is anything that you owned before the marriage, anything that was inherited by you during or before the marriage and anything that was a gift specifically and exclusively to you, even during the marriage.

Marital property, on the other hand, is generally anything acquired during the marriage and, if the parties can't agree on how to divide marital property, then the court will have to do this for them.  Marital property can include real estate as well personal property (furniture, furnishings, collectibles, automobiles, bank accounts, business interests, retirement benefits, and much more).

It's often harder to divide the parties' debts than their tangible property.  This can be an important task for your attorney to negotiate on your behalf.

Military Retirement and Pension Benefits: 

Military retirement pensions are considered marital property even if you have not reached retirement eligibility. A formula will be applied awarding the non-military spouse a portion of the military pension based upon the number of years the parties were married to each other and while he/she was in the military. The retirement pension division can include one's time in the Reserves. The Uniformed Services Former Spouses Protection Act addresses a spouse's rights to a division of military pension, direct payments, medical benefits, and annuities (Survivor Benefit Plan).

Settlement Agreements:

Parties are generally best served by reaching an agreement through negotiation or mediation on how to divide their assets, liabilities and parental responsibility.  A trial should be your last option in a divorce case as they are expensive, protracted and seldom work out as well as a litigant might hope.  Approximately 85% of Kentucky divorces settle in mediation or negotiation.  And there is no appeal process in a mediated or negotiated settlement.

Tax Consequences of Divorce:

Paying alimony (we call it "maintenance" here in Kentucky) to your former spouse may be deductible for you and have to be declared as income by your former spouse.  This is an important subject which should be discussed with your attorney and spelled out in your divorce settlement agreement.

Child support is NOT deductible on your taxes and is not declared as income for the recipient.

The custodial parent is typically entitled to claim the parties' children as dependents on his/her tax returns; however, because there can be significant advantages to the parties to either alternate claiming a single child or splitting up the claim for the children between them, this is typically an area which your attorney can negotiate to your benefit.  For instance, if there are two children involved, one parent can claim a child and the other parent can claim the other one.  If only one child, Parent A could claim him/her in even-numbered years and Parent B could claim the child in odd-numbered years.  The exchange of IRS Form 8332s is typically required for such arrangements and will have to be attached the parties' respective tax returns each year.

Restoration of Wife's Maiden Name:

The wife has the option of taking back her maiden name at the conclusion of the divorce process.  If you survey a dozen women about whether they want their maiden name back after the divorce, you'll get a variety of answers.  If minor children are involved, that may influence their decision.  If the divorce was particularly bitter, that will have an impact as well.  Regardless, it was the wife's exclusive decision as to whether to change her name when the parties married and it is her exclusive decision as to whether to change it back when the divorce is over.

If you or your spouse are active duty military or if one of you is retired military, we'd be happy to talk to you about your legal options is you are contemplating a divorce.  Give us a call today.