Kentucky Bankruptcy Law

Counsel with Care

The inexact formula for maintenance (alimony) and property division

Thanks to the Divorce Law Journal blog for pointing out this family law case from the Kentucky Court of Appeals. Croft v. Croft, 2006-CA-001403-MR (Nov. 2, 2007)(to be published) addresses marital and non-marital property as well as maintenance (what Kentucky calls Alimony).

The marital versus non-marital issue revolved around a piece of property purchased by Dimitri Croft prior to the marriage. The trial court considered the entire value of the property to be non-marital at the time of the divorce. The Court of Appeals reversed this for being clearly erroneous. This was because the increase in value of property purchased prior to marriage is presumed to be marital unless it is shown by clear and convincing evidence that the increase was merely due to economic growth. Here, evidence was submitted that the couple both worked on the property and that the loan was finally paid off with marital money. Dimitri simply saying the work they did on the property was merely for upkeep was insufficient to overcome the presumption.

In division of the marital property, the Court pointed out that Kentucky law, KRS § 403.190, requires property to be divided in “just proportions” but this is not to say it must be EQUAL proportions. The trial court has great discretion in determining the exact division.

Adrianna Croft argued that she should have recieved maintenance because she became disabled and relied on social security disability for income. Here, the Court of Appeals upheld the trial courts denial of maintenance. The Court reiterated that “KRS 403.200(1) requires the trial court to find that the spouse seeking maintenance: (1) lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; and (2) is unable to support herself through appropriate employment.” In this circumstance, Adrianna was only able to testify that she could not eat out as often now that she and Dimitri were no longer together.

In each of these issues, the trial court is afforded a great deal of discretion and will only be overturned if the trial court’s decision was clearly out of line with the evidence. In the maintenance issue, courts usually uses very rough sense of equity that cannot really be considered a formula. If there is a substantial disparity in income (we’re talking tens of thousands rather than just thousands) leaving one party with a big drop in their standard of living, then maintenace may be awarded. Adrianna’s inability to eat out as often simply did not trigger the judges rough sense of equity.

Be sure to check back in with the Divorce Law Journal for a more thorough digest of this case.


November 4, 2007 - Posted by | Divorce, Family Law

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: