Alternatives to Divorce

If marital difficulties arise, either or both parties may feel that divorce is inevitable. However, going through a divorce is not exactly a fun exercise. It can be expensive, stressful, intense between the parties, difficult for the children, etc. However, there are alternatives to divorce that can:

  1. Work to save the marriage
  2. Reduce the pressure, time, and cost of the divorce process
  3. End the marriage without resorting to divorce, under the proper circumstances
  4. Set up the terms of a divorce should it occur down the road

Uncontested Divorce

One alternative to is a full-fledged, hostile divorce is an uncontested divorce. In an uncontested divorce, the parties agree on certain matters – property division, maintenance, child custody, child support, etc. – so there is no need to litigate in court. The process involves considering all relevant issues, coming to agreement, drafting required documentation, and submitting the documentation to the court for review. When the divorce decree is issued by the judge, the marriage is ended to the exact same extent as occurs through a contested divorce, but with must less difficulty and expense.

It is beneficial to have an attorney to handle an uncontested divorce for several reasons. First, unrepresented persons are held to the same standards as those who have attorneys. Accordingly, everyone is expected to comply with the Kentucky Revised Statutes, the Kentucky Family Court Rules of Procedure and Practice, the particular county’s local rules (example: Fayette County Family Court), etc. Navigating these rules is usually difficult or impossible for someone unfamiliar with the legal system. Second, an attorney can point out the relevant issues and ensure that the terms of the divorce are both understood and fair to his or her client. Third, uncontested divorces often utilize separation agreements to outline specific terms of the divorce. A separation agreement is a contract between the divorcing spouses. Attorneys customarily draft such documents so as to ensure that the agreement is legally enforceable. See KRS 403.180.

Legal Separation

Legal separation is a legal status just short of divorce, meaning the parties are still married but certain aspects of their relationship have changed. If parties have been actually separated from some time (e.g., spending time apart but no change in the legal status of the marriage), a legal separation allows property acquired by each to be held as non-marital property which would not be subject to equitable division at divorce. See KRS 403.190(2).

In some cases, legal separation is used to give the parties a time off from marriage to reevaluate whether a continued relationship would be best. In other cases, it serves as the final determination of a couple’s marital status when either or both are opposed to divorce for personal, religious, or other reasons.

Annulment of Marriage

An annulment of marriage, sometimes referred to a declaration of invalidity of marriage, results in a legal determination that the marriage never existed. That is, the court recognizes the marriage should not have occurred in the first place according to law and therefore, no divorce is required to end the marriage.

A marriage may be annulled if one of the statutory grounds for annulment is met and the request to annul is filed within the time period allowed according to law. This is either 90 days or 1 year from the time the applicable statutory ground for annulment was realized. Some of the statutory grounds for allowing annulment of marriage include the influence of alcohol/drugs, mental incapacity/disability, or bigamy (one of the spouses was already married when the parties wed).

Postmarital Agreement

A postmarital agreement – also known as a postnuptial agreement or a reconciliation agreement – defines the ongoing rights and responsibilities in an existing marriage and addresses contingencies should the marriage end or when either of the spouses dies. Usually, spouses do not consider drafting a postnup until a marital difficulty has arisen. At that time, a postnup can serve as a contract between the parties to gain promises from each to improve the marriage or define what will occur if divorce is undertaken. No matter the reason it is utilized, a well-drafted postnup can save time and expense in later divorce litigation by resolving issues in advance.

Divorce from Bed and Board

Divorce from bed and board is a relic from the era of fault-based divorce that is still available under Kentucky law. Prior to 1972, a party seeking divorce had to demonstrate that the other spouse was somehow at fault before a court would grant a divorce. Divorce from bed and board was utilized if fault could not be sufficiently proven, though the parties could no longer stand to live together.

This option still exists under Kentucky law. See KRS 403.050 (last modified in 1942). However, in actuality it is no longer utilized. The standard to obtain divorce is now merely “irretrievable breakdown” as alleged by one of the parties, so it is not difficult to obtain a divorce if desired. If some measure short of divorce is preferred, legal separation more cleanly establishes each party’s rights under the modern family law statutes.

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