A Primer on Separation in Kentucky
Legal separation in Kentucky is a judicially recognized status where you and your spouse live separately, but you are not divorced. Separation allows you to live apart while continuing to be married. It is also an opportunity to attempt reconciliation or prepare for divorce.
A decree of legal separation does not change your marital status. Since you are still married, if you pass away your spouse will inherit your estate, unless you have a will that provides otherwise. A legal separation in Kentucky is not the same as a divorce. Since you are still married , you are not free to remarry or enter into a registered domestic partnership.
Some people choose to legally separate instead of getting a divorce. There are a number of reasons someone may wish to separate instead of get a divorce. For one, some people have a deeply held religious belief against a divorce. For others, they may wish to separate for a specific period, but with the hope that they wish to reconcile later. The process of separation, and the characterization of a status of separation, can provide valuable leverage in settlement negotiations that lead to a divorce later. There is not a statutory waiting period prior to filing for divorce after separation.
Requirements For Legal Separation In Kentucky
Like many states, Kentucky has legal requirements that must be met before a couple can file for legal separation. The process is distinct from a divorce and may be the best option for some couples. This section explores these requirements in detail.
Whether you are filing an initial complaint or looking for a judgment of separation, certain conditions must be met to begin the process. The basic requirements include the following:
- The couple must have been residents of Kentucky for at least six months prior to filing.
- At least one member of the couple must have lived within the county in which they file the separation for at least 60 days.
- The couple must agree to separate terms that cover property and other issues.
- They need to cite at least one legal reason for separation, such as irreconcilable differences, substance abuse or adultery.
Kentucky is one of the few states that allow for ‘legal separation,’ which is an arrangement between two people who live apart but have not divorced yet. It is similar to a divorce, except for the fact that the couple remains legally married for the time being and both remain eligible for health and other insurance plans.
Unlike a divorce, separation does not seek to dissolve a marriage. If the parties do not reconcile, they may still proceed with divorce at a later point, although a separation agreement and settlement can provide important legal protections while the couple is still married.
How To File For Legal Separation
The process of filing for legal separation in the commonwealth of Kentucky begins by filing a petition with the court. The petition can be filed in the county where at least one spouse has resided for at least 180 days immediately prior to the filing or where the respondent spouse is currently living. Filing the petition creates a case, which is assigned a case number by the clerk’s office. The next step is serving the other party with divorce papers. The petition must also be served within 30 days of the initiation of the case. The next step involves a hearing. Either on or before the date of the hearing, the parties should file a Separation Agreements (if the parties have been able to work together to come to an agreement regarding the disposition of their marital property) and/or motions for temporary orders (if the parties are unable to agree as to the terms of temporary custody, child support, temporary support or use and possession of marital property) with the court. If motions for temporary orders are pending, the court will issue temporary orders at the hearing. If nothing has been filed with the court, the court may elect to entertain the motion of either party at the time of the hearing and issue a temporary order at that time. The issued temporary orders will remain in place until the parties reach an agreement as to the terms or the court makes final orders at the time of trial. After the hearing, the court will enter an Order of Temporary Separation. The parties should get a copy of this Order. A Separation Agreement, or Joint Stipulation, must be filed with the court in order for the parties to be legally separated. If an agreement cannot be reached, the parties may request the court appoint a mediator to help them resolve issues of custody and child support. If a mediated agreement cannot be reached, the court will conduct a trial.
Essential Differences Between Legal Separation & Divorce
In Kentucky, one of the most common misconceptions surrounding separation is that legal separation and divorce are essentially the same. There are, in fact, key differences that, if not understood, can have long-term consequences.
Legal Status
Legal separation is a court-approved act that allows you and your spouse to live separately without dissolving the marital union. A divorce, on the other hand, is an act that completely severs the marital union and ends all legal obligations between both spouses. The act of divorce absolves both parties of all legal responsibilities and entitlements.
Financial Implications
In a legal separation, you and your spouse cannot pass on or transfer assets and debts to a third party without both signatures. This means that you cannot sell property, pass on money or make trades or deals with anyone outside of the marriage. In a divorce, however, you are free to divide assets and debts as you please based on agreements or decisions from the court.
Potential for Reconciliation
In a legal separation, if you and your spouse are able to amicably resolve various issues over time, then the separation may be dissolved and the two of you may financially and legally reconnect as husband and wife. In a divorce, there is no such potential for reconciliation, as the marriage has been completely and legally dissolved.
Other Considerations
There are also other considerations when it comes to legal separation. If you are legally separated, you may be entitled to the same benefits and entitlements as a divorce, such as health insurance coverage or spousal support payments. However, you may not be able to get remarried until after the separated marriage has been completely dissolved. It is also worth noting that in Kentucky, one of the grounds for divorce is if either spouse has "willfully deserted" the other for at least a year. Should you file for legal separation and this condition actually exists, you may be granted a divorce instead of separation after the one-year minimum.
Separation’s Influence on Custody & Child Support
In Kentucky, the impact of legal separation on child custody and support is significant. While not as frequently addressed as divorce, legal separation offers an alternative for parties who do not want to completely end their marriage but need relief from the marital estate. The law recognizes the importance of the best interests of children during a legal separation. Just as in divorce, parents must consider the welfare of their children when creating a separation agreement or going before the court to determine child custody and support.
In Kentucky, the relevant statute governing all matters of child custody and child support is KRS 403. In the case of legal separation, under KRS 403.270, parents are required to address all issues of child custody and support as if they were divorcing. This means that the courts or parents should embark on determining physical custody (where the children live and spend their time) and legal custody (who will make important decisions related to the children). Just as with divorce, there is a rebuttable presumption in favor of joint custody, which is the preferred outcome in a contested situation.
When adjudicating the issue of custody, which is the legal authority to make decisions affecting a child’s welfare, the courts will look for several things including the age of the child , the parent’s mental and physical wellbeing, and the needs of the child. Ultimately, the determination of custody will be made based upon the concept of the child’s best interests. That is the legal standard. If parents agree to a custodial arrangement in a legal separation agreement, the court will not change it without cause. If cause is presented (e.g. a change in the family or is it not in the best interests of the children), a judge can modify how, if at all, the parents are responsible for making decisions for the children.
As for physical custody, again, Kentucky provides parents the latitude to come up with a parenting plan for the minor children. The statute lists a number of factors that parents may use as a guide to determine what is in the best interests for the children. These factors range from the child’s relationship with each parent to which areas of Kentucky have the best access to medical care. It is important to note that while this list is extensive, it is not exhaustive. Parents can address this issue however they see fit to provide the utmost stability for their children.
Parents contemplating separation should be advised to work out these and other details beforehand, preferably with the counsel of a legal professional. Seemingly small matters today can have massive repercussions down the road if not handled properly.
Money Matters & Legal Separation
As a legal separation in Kentucky does not legally terminate the marriage, the financial aspects of the relationship remain and must be addressed if issues such as spousal support or asset division are present.
Understandably, many people may be uncomfortable with the concept of a separation agreement since they are not yet divorced. However, spouses will still need some form of agreement to handle important issues such as financial support and division of assets. The spouses themselves can create a separation agreement that addresses these concerns, and many times it is done without an attorney. This is typically a bad idea!! Any agreements made without the advice of an attorney may be deemed invalid by a judge, or the divorce may be delayed because the judge wants further hearings to determine the level of support or division of assets.
A separation agreement requires a long-term commitment to this temporary arrangement in order for it to become enforceable like a final divorce decree. A failure to pay alimony or child support is grounds for contempt of court. Your attorney needs to prepare the separation agreement and file a motion with the Court asking for a Temporary Restraining Order ("TRO") to ensure that parties do not spend what little cash and liquid assets may be out there. A TRO prevents an individual from using any of the joint assets without expressing the need for the use to the other party and to the Court. The TRO stays in effect until a debt list is produced, the amount is agreed upon, and the assets are divided accordingly. A TRO is a necessary process, but a difficult one as it is stressful for the couple to determine. The nice part about a separation agreement is that we know the marriage was accepted at face value when the marriage occurred. Even if a separation agreement is filed, all benefits benefit from the date of marriage until the signing of that agreement. Nobody enjoys reflecting on the debt and expenses that he or she has accrued during a marriage. But there is a great deal of relief in knowing that the marriage is blessed at face value and the separation agreement is a flexible means of working around the problems between both spouses, to work towards a final divorce. Separation benefits even couples that cannot find a way to agree on issues. Couples that do not talk for a year or two, or refuse to even meet to talk about the issues regarding their lives together are a good example of couples that can really benefit from a separation. These couples will need to meet with a mediator to negotiate the issues such as child custody, support, and the division of assets. The couple can choose to sit down with the mediator or have the mediator talk with each spouse separately. However the mediation occurs, the couple is guided towards a possible resolution while ascribing to the goal which was discussed when the separation agreement was put in place.
Legal Separation Or Divorce
Whether your initial separation was the result of a mutual agreement or an emergency proceeding, or as a result of events beyond your control, there are a number of options available to you if you wish to reconcile or convert your legal separation into a divorce. If you and your spouse wish to become reconciled then this can be accomplished by entering into a new property settlement agreement that is reduced to writing that would void the terms of the original separation agreement or if the agreement was entered into through a decree of dissolution of marriage by which the marriage was legally dissolved, then the new agreement will simply act to vacate the prior decree of dissolution. If you believe you are ready for a full divorce then you need to open a new proceeding under Kentucky Divorce Law. If you are within the one (1) year period in which the decree of legal separation is operative an "action for dissolution of marriage" shall be commenced by filing the "Petition" with the Circuit Court. The only difference between a divorce action and a legal separation action is that the former alleges that the marriage is irretrievably broken and survey demands that the bond of marriage be dissolved. In a legal separation action on the other hand, the allegation is that there are irreconcilable differences between the parties, but that these differences have not reached the level where it can be shown the marriage is beyond repair.
When To Get Help
When it comes to separation, the stakes can be incredibly high. Complications may arise when involved in a relationship or marriage where there are children involved and, perhaps, even a high-income level of one of the spouses. The complexities of this arena demand that you have a highly trained professional guiding you through the legal process. Having an attorney at your side will help you to make the best decisions, ones that consider the fiscal and emotional well-being of your family members. For example , a qualified attorney with experience regarding Kentucky divorce laws can help you to negotiate issues such as child custody, separation financial matters plus many other facets of Kentucky separation laws. Family law attorneys can help deal with property division, child support and visitation, alimony, spousal support, divorce settlements, as well as advocate for those in need of safe separation from abusive spouses (a Protection Order). Plus, consult an experienced attorney to determine if this is indeed a temporary separation or an initiation of divorce proceedings.