Bench & Bar July/August 2025

DISCUSSING DIVORCE AT A COCKTAIL PARTY BY REBECCA SIMPSON FEATURE: COCKTAIL LAW VOL. II

IN THE DIVORCE WE SPLIT EVERYTHING 50/50, RIGHT? Not necessarily. Kentucky is an “equitable distribution” state, which means the court divides property equitably, not necessar ily equally. The judge looks at things like how long you were married, each spouse’s income, who contributed what to the mar riage, what each person needs after the divorce, and whether assets have been dis sipated or “wasted” in contemplation of divorce. Also, property that is nonmarital property is not divided but rather restored to the spouse who establishes the nonmar ital claim. Nonmarital claims can include property acquired before marriage, gifts, and inheritances. The burden of establish ing a nonmarital claim rests with the spouse asserting the claim, and the burden must be met by “clear and convincing” evidence. THEY GET AWAY WITH IT? They can try—but Kentucky courts require both spouses to fully disclose all assets. If you suspect this is happening, your lawyer can subpoena financial records, ask the court to order production of financial records, or hire an expert to investigate. MY PARENTS GAVE ME MONEY TO HELP BUY OUR HOUSE. SURELY, I WILL GET THAT BACK? Possibly. If your parents gave money spe cifically to you as a gift, and that can be proven (like a check in only your name or I KNOW MY SPOUSE IS HIDING MONEY. WILL

other documentation indicating the money was specifically for you, or your parents’ testimony that your spouse was included only because they were married to you), the judge may treat it as your non-marital property. If it was a gift to both of you or used in a way that benefited both spouses, it may be considered marital property and subject to division. I EARNED EVERY PENNY OF MY RETIREMENT, SO AT LEAST THAT IS ALL MINE, ISN’T IT? Probably not. Retirement accounts such as 401(k)s and pensions are usually split, or offset, if the money was earned during the marriage. That part is marital property and can be divided by court order. A QDRO (Qualified Domestic Relations Order) can be entered to divide retirement accounts without tax penalties. The portion of retire ment earned before marriage typically stays with the original owner. A calculation commonly referred as a “Brandenburg calculation” can be used to determine the growth on the non-marital portion. MY NAME IS NOT EVEN ON THE DEED TO OUR HOUSE! DOES THAT MEAN MY SPOUSE GETS IT IN THE DIVORCE? If the house was bought during the marriage with marital funds, it’s considered marital property—even if only one spouse’s name is on the deed. One spouse may keep the house, but the other might get money or other property to make it equitable. If the

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