What is Legal Separation in Kentucky?
In Kentucky, legal separation is a court-approved arrangement in which a married couple lives apart and agrees to resolve personal and financial matters concerning their marriage. Legal separation is often the first step toward the end of a marriage, but it does not always lead to divorce. If a couple reconciles, they may simply continue their marriage as if nothing had changed. If they eventually decide to divorce, however, they can convert the terms of the legal separation into a legally binding divorce settlement.
It is important to differentiate between legal separation and divorce. Though they both divide marital property and control issues such as child custody and support, the two processes are not exactly the same under Kentucky law. When a couple legally separates, they are still legally married. In fact, Kentucky law specifically states that "[a] marriage which has been legally separated shall remain deemed to have been married to the date of death of either spouse." (KRS 403.330). Hence, a couple with a legal separation who chooses not to ex-spouse but remarry the other ex-spouse after a period of time, will end up with a big problem when the second, new marriage is challenged in the court system .
One of the major benefits of legal separation is that the parties in question can remain as still married and one spouse conceivably could remain on the other person’s health insurance coverage, if eligible. This could also be an impediment to a later divorce if one party did not want to get divorced for religious or other personal reasons. However, foreign countries would still consider a marriage to be over at the date of the judicially separated couple’s trial and all applicable divorce divisions would apply internationally. As a result, someone who is living overseas and gets remarried, either to the separated spouse or another partner, may be subject to persecution, incarceration, or other penalties by a foreign country.
When a couple is legally separated, they are also free to enter into new romantic relationships without civil repercussions. Although these new relationships do not constitute adultery under Kentucky law, the relationship will still be subject to scrutiny in future court proceedings with regards to child custody and marital property division. The presence of new romantic partners may point to the end of a marriage, even if the former couple has not yet filed for divorce. Moreover, some people view those who enter new relationships while legally separated as morally objectionable, which can have an impact on child custody and the perception of a family as a whole.
Requirements for Legal Separation
To qualify for legal separation, one must meet the eligibility requirements as laid out in Kentucky Revised Statutes. The threshold requirement is written directly within KRS 403.180 and is as follows: "Either or both of the parties to a marriage may sue without regard to any length of residence in this state for a legal separation from the other." KRS 403.180(1) (emphasis added). While there’s no residency requirement, the law does require one of the spouses to have resided in Kentucky for at least 30 days prior to filing. In addition, no prior action for legal separation, annulment or dissolution of marriage may have been adjudicated between the parties. KRS 403.180(3).
Preparing the Legal Separation Petition
When one or both of the parties are prepared to go forward with a Petition for Dissolution of Marriage, the next step is preparation of the necessary pleadings, or documents. One of the spouses must be a resident of the state of Kentucky for at least 180 days, and either spouse must have lived in the county for at least 60 days. Online resources are available for each county for a person to file a petition without an attorney. These petitions are short in length, layed out in bullet points and are straightforward. You will need your county’s specific petition.
This document is known as a Petition for Legal Separation and you must have this document filed with the court to proceed. This document will contain the identifying information (name, address, date of birth) for each party, information about the marriage (date and place of the marriage), information about any minor children involved (names and dates-of-birth), confirmation that the required residency and living requirements have been met, confirmation that a marriage is irretrievably broken, and verification of the information provided (the petitioner needs to sign the document, under oath, that the information contained is accurate and true, under penalty of perjury).
Other documents to be included with the Petition are a Certificate of Residency from the county where you are filing that confirms that you’ve lived in the state and county for the minimum period, an Affidavit of Financial Disclosure that provides the names and addresses of both parties, the date-of-birth for both parties, the Social Security Numbers for both parties, details about the children, identification of their current employer (if applicable) and a summary of the manner in which each party has contributed to the well-being of the family, financial status of both parties, monthly income and living expenses, and a list of any properties the parties may own and where they live.
Please keep in mind a divorce is not necessary to obtain a legal separation. In fact, most of the time filing a legal separation is a precursor to a final divorce. For many clients examining a legal separation, it offers an opportunity to live separately for a time, to assess the need for a divorce and to begin the legal process.
Filing Your Petition for Separation With the Court
After you have prepared the Petition, and completed the Parenting Plan and Financial Affidavit, those documents will need to be filed with the Court to begin the legal separation process. In Kentucky, all legal separation filings get initiated in District Court. That Court is located at:
Hopkins County District Court
140 East Center Street
Madisonville, KY 42431
In Kentucky, certain forms must be used when filing this type of case. The required forms are available at the Court Clerk’s Office, or online at the Kentucky Court of Justice website. Forms may be filed with the Court by personally visiting the office, or by mail.
In Kentucky, there are filing fees associated with filing any type of case in District Court. Here are the fees that the Court charges when filing a legal separation case with the Court:
If you find yourself in the position of filing any type of case in District Court, these fees can add up quickly. That’s why it is often strongly considering ensuring that a case actually meets the legal requirements that trigger the ability to file legal proceedings prior to doing so. Our office saves clients a lot of money by ensuring that their case has sufficient grounds for litigation and by having a strong understanding of what the prospect of actually going to Court will cost for a specific case.
After the necessary documents are completed and filed with the Court, a Court hearing will need to take place before the separation will be complete. A judge will sign a Decree of Dissolution of Marriage if there are children involved and the Court will hold all parties to the specific terms that are spelled out in that Decree.
Serving Your Spouse
In Kentucky, once the Petition for Dissolution of Marriage is filed, the next step is to serve the spouse with notice of the petition within 30 days. This is referred to as service of process and requires that the spouse be served with a copy of the petition, along with a summons stating the time and manner of filing an appropriate response. Service is the process by which the petitioner notifies the other spouse of the legal action.
Once the spouse has been served, they are given a time within which to file a response, generally within 20 days after service. If the spouse cannot be located, the petitioner may file an affidavit stating such with the clerk, and then serve the spouse by certified mail at their last known address. This is known as service by publication and only applies to the filing of a dissolution petition. That means it cannot be used to serve other types of petitions, like a petition to dissolve a cooperative agreement or a suit to declare a cooperative agreement void.
When a spouse is served by publication, the petitioner is required to publish notice of the action in a local newspaper. The notice must run once a week for three consecutive weeks. The third week’s publication must take place on a date that is at least seven days prior to the deadline for the spouse to respond to the petition. Even after service by publication, however, the petitioner does not need to wait for the spouse to respond. If the spouse fails to file a response by the date noted in the summons, then the petitioner is free to proceed with the divorce, following the same process as if the spouse had been served in person.
In short, although it’s best when a spouse can be served in person, service by publication is a valid method in Kentucky and is typically a reliable option when the whereabouts of the spouse are unknown. Once the service has been accomplished, the proceedings can go forward.
Temporary Orders and Temporary Agreements
When filing for legal separation in Kentucky, temporary orders may be sought for a number of different matters, such as child custody and support, spousal support/alimony, and the exclusive use and possession of the marital residence. In Kentucky, a legal separation is the same as divorce in that there are no longer "legal grounds" for separation or divorce.
There are many reasons for filing for a temporary order. The first is the necessity of establishing child custody and visitation before the children (if any) begin to settle into one home. A spouse may request spousal support for purposes of meeting immediate financial needs. The primary duty of the court in considering these matters is to expedite the process, reduce the amount of litigation and lessen the emotional and financial burden on the parties.
While the initial reaction may be to free up time for both parties to pursue their own interests , there are legal advantages to discussing temporary matters. This is also true with regard to any agreements that will address child custody, visitation and spousal support. These matters can be expensive and time consuming.
Even if a temporary agreement cannot be reached, having discussions is essential because most of the issues will be resolved by agreement. In a contested case, receiving some information about the other spouse’s position on issues will eliminate substantial discovery costs.
All separation agreements approved by the court are enforceable. While a temporary order allows for issues to be dealt with quickly, it does not have the force of law absent a final decision by the court. Both types of agreements can be modified at some later date by mutual agreement and change of circumstances.
Attending Hearings in Court
You will eventually be required to appear at a hearing or trial related to your legal separation matters. If you have attorneys, they usually will handle this for you. However, you will need to be present at a contested hearing or trial.
Here is the basic procedure:
• Check in with the bailiff when you get to court unless your attorney handles the check-in.
• You’ll probably be asked to stand in front of the judge and "take an oath" or "affirm" that you will tell the truth. Do not skip this step!
• The judge may ask you to tell him or her what you believe to be the issues in your case that you want them to rule upon.
• The judge will probably explain the process for the hearing:
• Witnesses are sworn in the same manner as yourself and are then questioned by one side’s attorney. Witnesses can also be "cross examined" by the other side’s attorney, which basically means they will be asked a series of additional questions designed to find out what the witness does and does not know.
• You may also be sworn in as a witness and asked to answer questions. If this happens to you, it’s just like when the other witnesses are getting questioned, except you’re the main focus of the questioning.
• The attorney for the requesting party gives their closing argument explaining why they should be granted what they have requested.
• The attorney for the other party will then give their argument explaining why the requesting party should not be granted what they requested.
• Lastly, the requesting party’s attorney is allowed to provide a reply argument responding to the other party’s argument.
• The judge will then take the case under advisement (a fancy way of saying they will think about everything) and send you home. The judge has up to 30 days after the hearing to make a final decision and issue an order to either grant or deny what has been requested.
Preparation for the hearing is best accomplished by being aware of the issues to be decided by the court. For instance, preparation for a hearing to decide where your child will live the majority of the time should focus on preparing parenting time schedules, alternative arrangements in the event that you cannot keep to that schedule and gathering information about your child and your lifestyle.
Finalizing Your Separation
Once an affidavit has been filed, the next step is to complete an agreed divorce decree, which is a written, signed agreement by both parties detailing the terms and conditions of the divorce. If there are no disagreements between the parties about the terms of the divorce, this process is very straightforward. Both parties sign the document in front of a notary, and then it is submitted to the court for approval. The court may accept this agreement as-is, or it may require that the parties appear before a judge for further review. It is the final decree of legal separation that dissects all of the issues in the marriage and divides assets, debts, income and parental responsibilities and resolves support issues such as alimony or child support, depending on the specific circumstances. Once a final decree of legal separation is approved by the court, it is enforceable just like a regular divorce decree. The most common reason for seeking legal separation in Kentucky is to provide immense legal protections to each spouse while determining whether divorce is truly the right path for the marriage.
Considerations After your Separation
Life after legal separation requires attention to detail and a keen eye toward how changes in your or your spouse’s life might affect the separation order. The separation agreement is a contract between you and your spouse, and as with any contract – when life happens, you might need to modify the agreement. Maybe the house isn’t selling as quickly as envisioned so the parties either need to be reminded that payment of maintenance or child support and bills should continue, or one party needs to be reminded that these payments still need to be made even if the house sells eventually. Maybe one party has a new job in a new city and that new job interferes with the opportunity for visitation with the children; perhaps this means a modification of the parenting time schedule. Maybe one party’s new job pays significantly more money than the previous job leading to a change in the income used to determine child support and perhaps maintenance. Or maybe the parties have reconciled – or want to reconcile – which will put this entire saga on a different – and happier – path.
In situations like the above, nothing happens unless one of you files a Motion to Modify the prior ruling along with an Order that is signed by the Judge. This is akin to a Petition (please make this change) and an Order (judicial approval of the requested change) – hence the pre-filing of the motion and post-filing signing of the order is required. If you cannot agree on what the changes should be, then get ready for further litigation.
The most complicated post-separation consideration is sometimes brought about by receiving a Request for Waiver of Hearing filed by your spouse. This waiver of hearing is based on an affidavit your spouse filed, claiming that the parties have lived separate and apart for at least one year with no cohabitation – in essence, an affidavit of irretrievable breakdown . You would think that under these circumstances that the Judge would sign the Waiver of Hearing and your separation decree would become final, but it doesn’t always happen this way.
If you believe the marriage should be dissolved, and you are fine with all other requirements of the separation decree having been satisfied, you can file a Waiver of Hearing and bring your spouse with you to the hearing where the Judge can ask a few questions and finalize the decree based on the current terms from the separation order.
While parties do not need to re-litigate issues in the Waiver of Hearing setting, some Judges find it uncomfortable to grant the waiver when someone appears to want to reconcile or where spousal maintenance was awarded in the separation order.
For example, if the parties executed their separation agreement, and they are both equally happy with the terms and conditions, despite the marriage irretrievably breaking down, a Judge might be less inclined to grant the Waiver. In such circumstance, the Court will typically schedule a final hearing where evidence is presented as to the terms of the agreement. The Judge is not however likely to hear testimony about how happy the parties are with the terms of the agreement. In fact, the Judge is likely to push the party that "wants the divorce" for a trial date and order the parties to mediation.
In the end, the Judge can grant the Waiver as long as he/she feels that the party requesting the Waiver has a good faith belief that the marriage is over. But if this same party appears to not want the divorce, wants the other spouse to pay more maintenance or wants the other spouse to pay half of a $10,000 charge on a credit card, the Judge may not be so inclined to grant the Waiver or may ask for some evidence in support of the Waiver request.