General Information
Legal separation is a means of establishing some legal rights in a difficult marriage without immediately resorting to “absolute” divorce. It does not go as far as divorce in terms of restoring the parties to their pre-marriage status but is a preferred alternative in certain circumstances. During a legal separation action, the parties may enter into a Separation Agreement which is then filed with the court and defines continued expectations and understandings. Such an agreement may define what actions must be taken to restore the marriage, list which events will cause either party to move for divorce, or deal with child or monetary issues while the parties live apart, etc.
If a Decree of Legal Separation is entered:
- Property later acquired by either spouse is his or hers to keep if the spouses ultimately divorce. Such property is not considered “marital property” which a court must divide “in just proportions.” KRS 403.190.
- Provisions in each spouse’s will which award property to the other spouse are not affected. In contrast, when divorce is granted, all dispositions of property made to the former spouse are automatically revoked. KRS 394.092.
- The parties are not free to marry someone else. Parties may marry again only if they have been granted a divorce. KRS 403.010.
Purpose/Necessity
Legal separation may be desirable under any of the following circumstances:
- The parties are willing to see if a time apart will cure a temporary marital problem or will prove that divorce is necessary.
- The parties feel the need to separate but one or both have religious, moral, or social misgiving about obtaining a divorce.
- The parties want to separate in some fashion but would like to retain certain benefits such as health insurance, Social Security, or the ability to file joint tax returns. This is not automatic following legal separation but requires consideration of the policy terms, agreements in the Separation Agreement filed with the court, and other factors.
Frequently Asked Questions
- How difficult is it to obtain legal separation?
- If the Petition and other documents are properly filed, it is generally easier and less time consuming to be granted legal separation than it is to be granted divorce. That is because a decree of divorce may be entered only upon a finding of irretrievable breakdown of the marriage, or that “there is no reasonable prospect of reconciliation.” KRS 403.170. A judge may grant legal separation without making such a finding.
- Are child custody, visitation, and support issues discussed in a legal separation action?
- If either party requests that the court adjudicate these issues, the court will get involved. See KRS 403.270(2) and KRS 403.211(1).
- Are spousal maintenance and property division issues discussed in a legal separation action?
- If either party requests that the court adjudicate these issues, the court will get involved. See KRS 403.200(1) and KRS 403.190(1).
- If legal separation proceedings have begun, may they be abandoned?
- Yes. A motion by either or both parties may request to dismiss the legal separation action.If a Separation Agreement was entered, each party will remain bound by its terms unless the Court finds such terms to be unconscionable. KRS 403.180(2).
- If legal separation proceedings have begun, can a divorce be obtained instead?
- Yes. Either party may move to convert the action into a divorce action by arguing that the marriage is irretrievably broken and that only divorce is appropriate.If a Decree of Legal Separation was entered, it may be automatically converted to a Decree of Dissolution of Marriage on either party’s motion at least one year after entry of the separation decree. KRS 403.230(1).
- What happens to property acquired by each spouse individually if there is a divorce?
- To keep property individually acquired during a period of separation, it is not enough to live separately or merely begin a legal separation action. The property acquired by each spouse is considered “marital property” until the time a Decree of Legal Separation is entered. KRS 403.190(2)(c). Marital property is generally divided down the middle, regardless of which spouse earned or acquired it.
- What happens if the parties reconcile?
- If, following the entry of a Decree of Legal Separation, both parties have the intention to resume the marital relationship, the legal separation is generally extinguished. See Peterson v. Peterson, 583 S.W.2d 707 (Ky. Ct. App. 1979). The parties may desire to enter into a written Reconciliation Agreement that may be filed with the court to provide for property distribution, child custody, or other issues should the marriage fail in the future.
- May the wife going through a legal separation request restoration of her former/maiden name?
- Yes but the Court may not enter this in its Decree of Legal Separation; it is only available in divorce or invalidity of marriage actions. KRS 403.230(2). She would have to file a separate Petition for Name Change to restore her name immediately or prior to obtaining a divorce.
Legal Services Offered and Cost
Legal Separation
Legal fees: hourly rate
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Uncontested Legal Separation
Please note: For your case to qualify as “uncontested” it must fit the criteria described on our page for uncontested divorce. The legal fees will increase if the matters are contested, if there is an exceptionally complicated division of assets, etc. as described on that page.
Legal fees: $550 flat fee
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Uncontested Legal Separation with Minor Children
Please note: For your case to qualify as “uncontested” it must fit the criteria described on our page for uncontested divorce. The legal fees will increase if the matters are contested, if there is an exceptionally complicated division of assets, etc. as described on that page.
Legal fees: $750 flat fee
To have our attorneys review your case, please CLICK HERE to enter basic info using our secure online form.