Blog Post | 115 KY. L. J. ONLINE | November 10, 2026
Keeping the Faith: Kentucky Courts Should Adopt the “Pattern of Practice” Test When Evaluating If Religious Gifts Constitute Dissipation
By: Jakob S. Sherrard, Staff Editor, Vol. 115
Within many faith traditions, religious gifts are not voluntary and are considered moral obligations of the faithful.[1] Many families make financial decisions together about how their religious giving will function, and where the gifts will go.[2] On the other side, for many religious institutions, families are critical to the financial health of their organizations.[3] Although many households make religious gifts, Kentucky’s case law does not currently have a hard and fast rule to ensure that tithing continues in the event of a couple’s divorce.[4] Kentucky courts should create a workable rule to allow a party to divorce to continue religious giving without fear of a dissipation claim.
In Kentucky, dissipation is a judicially created doctrine.[5] The only statutory guidance provided is the requirement for the equitable distribution of marital property among the divorcing parties.[6] Under this judicial doctrine, courts have found dissipation when a party expends marital funds “(1) during a period where there is a separation or dissolution impending; and (2) where there is a clear showing of intent to deprive one’s spouse of her proportionate share of the marital property.”[7] This test is sound on its face, but can become complicated once a party claims to have objected to religious donations during the marriage. When a party claims to have objected to religious gifts, or their ex-spouse’s religious practice, it may be easy for their counsel to paint the picture that gifts were given out of spite. While the showing may need to be “clear,” Kentucky courts are comfortable using circumstantial evidence to find dissipation.[8]
Currently, Kentucky courts have not issued a binding decision that creates a reliable rule related to religious gifts during a period of dissolution or separation. The Court of Appeals had the opportunity in Ali v. Safi, but instead avoided the religious issue.[9] This case involved Mr. Ali’s financial transfers to his family in Jordan, which he argued were completed under a religious obligation.[10] Notwithstanding Mr. Ali’s argument, the court avoided creating a rule related to gifts given under religious obligation and focused on how the gifts fit into the existing judicial framework.[11] The court considered whether the claimant presented any evidence that the transfers were made in contemplation of dissolution or during the parties’ separation.[12] Additionally, the court reasoned that the claimant made no showing that Mr. Ali intended to deprive her of the funds by making the transfers.[13] While this decision came out in favor of the religious donor, the Kentucky Court of Appeals delayed the issue by avoiding the creation of a formulaic test.[14] As a consequence, if religious gifts are a significant source of tension within a marriage, and one party continues to make them at the protest of the other party, the donor may be vulnerable to circumstantial evidence that such donations were made in contemplation of divorce.
Although Kentucky has not issued a binding decision related to religious exercise and dissipation, a nearby state has.[15] In In re Marriage of Stuhr, the Appellate Court of Illinois held that the petitioner’s contributions to the Sufi religion did not constitute dissipation of marital assets.[16] The court considered whether the donations were an “extension of patterns of practice established during the [parties’] marriage.”[17] Moreover, the court was swayed by evidence that although the respondent disapproved of the petitioner’s participation in the Sufi religion, she deducted her donations from their joint tax returns, indicating that the religious donations were a marital practice by the respondent’s acquiescence.[18]
In re Marriage of Stuhr shows us that Kentucky courts do not have to avoid the religious issue when creating a rule related to the status of religious gifts in dissipation claims. The Illinois Appellate Court successfully examined the extent of the couple’s participation in religious practices and the history of donations to determine whether the donations were a “continuation of a pattern that had existed during the marriage.”[19] As Stuhr shows us, this pattern of practice can be established by the other party’s acquiescence to religious donations, despite their objections.[20]
Kentucky courts should adopt a form of the “pattern of practice” test from Illinois.[21] Specifically, the Kentucky test should reflect that a religious gift shall be presumed to be non-dissipative when the donor shows (1) a consistent history of similar gifts before the separation, and (2) the other spouse’s acquiescence to those gifts in practice. Together, the two prongs guard against abuse from both directions. The consistent-history requirement in prong one forecloses a donor from manufacturing a sudden pattern of religious giving on the eve of divorce, since a single last-minute transfer cannot establish a pre-existing practice. The acquiescence requirement in prong two protects the non-donor spouse because acquiescence requires constructive knowledge of the gifts; a donor cannot claim protection for transfers made secretly or without the other spouse’s awareness. This test would allow divorce litigations to keep the faith, while protecting the other party from ill intended strategies.
[1] E.g., 2 Corinthians 9:7; Deuteronomy 14:22; Surah Al-Baqarah 2:43; 3 Nephi 24:8–12; Catechism of the Catholic Church para. 2043 (2d ed. 1997).
[2] See, e.g., John Bergdoll, Phuong Tran Nguyen & Adriene Davis Kalguyer, The 2025 Bank of America Study of Philanthropy 13 (2025) (finding that 30% of households gave to religious services or developments in 2020).
[3] See, e.g., David P. King, Christopher W. Munn, Brad R. Fulton & Jamie L. Goodwin, National Study of Congregations’ Economic Practices, 14 (2023) (finding that eighty one percent of congregational funds come from individual contributions).
[4] See cf., Kleet v. Kleet, 264 S.W.3d 610, 618 (Ky. App. 2007) (explaining that in cases involving gifts to family members a history of giving may be relevant evidence but is not dispositive).
[5] Brosick v. Brosick, 974 S.W.2d 498, 500 (Ky. App. 1998) (citing Robinette v. Robinette, 736 S.W.2d 351, 354 (Ky. App. 1987)).
[6] See KRS § 403.190.
[7] Brosick, 974 S.W.2d at 500 (citing Robinette, 736 S.W.2d at 354).
[8] See id. (finding evidence of circumstances surrounding transfers to indicate that respondent could have anticipated divorce).
[9] See Ali v. Safi, Nos. 2004–CA–002101–MR, 2004–CA–002111–MR, 2006 WL 1652674, at *4 (Ky. App. Jun. 16, 2006).
[10] Id. at *2, *4.
[11] See id. at *4.
[12] Id.
[13] Id.
[14] See id.
[15] In re Marriage of Stuhr, 56 N.E.3d 525, 543 (Ill. App. Ct. 2016).
[16] Id.
[17] Id. at 542–43.
[18] Id. at 543.
[19] Id.
[20] See id.
[21] See id. at 542–43.