Defining Legal Separation
What is legal separation? Legal separation in Kansas is discussed in Chapter 23 of the Kansas Statutes Annotated at 23-1601 et seq. The definition of legal separation is contained at KS. ST. § 23-1601. The purpose of legal separation is to be distinctly different than divorce. The statute states, "A bona fide , voluntary separation and apart for a period of six months during the preceding 12 months shall be prima facie evidence of an irretrievable breakdown of the marriage." KS. ST. § 23-1601(b). This timeframe in the law provides that when considering divorce the Court looks at the parties’ behavior prior to the filing of the divorce action.
It is important to have a clear understanding of legal separation in Kansas. Some couples decide that rather than getting a divorce they want to use legal separation as a mechanism to live separately but still remain married. Legal separation may also be used as a precursor to divorce to allow time to decide whether to actually terminate the marriage.
Kansas’ Legal Separation Law
In the state of Kansas, legal separation is governed by specific laws and requirements. Understanding these is crucial for residents who are considering pursuing legal separation as an alternative to divorce.
To be eligible for legal separation, at least one spouse must be a "resident of the state of Kansas for sixty days immediately preceding the filing of a petition of legal separation [Judicial Notice 604]." Even if you and/or your spouse have lived outside of Kansas for an extended period, you may be able to pursue a separation within a Kansas court.
Like preparing for a divorce, you will need to file a petition for legal separation with the appropriate court. This process is nearly identical to a divorce, except that you are filing for a legal separation instead. You will also need to fill out all pre-judgment forms that are necessary, which may include a case management plan, request for temporary orders, scheduling order, proposed pretrial order, and proposed division of assets, among potentially other documents. When you are done with your petition and accompanying paperwork, you will need to file it with the appropriate court.
In most cases, the couple will have to go through a period of separation. At the end of that separation, the court will make a decision about whether to grant a divorce.
Initiating Legal Separation in Kansas
To file for legal separation, the process in Kansas is similar to filing for divorce. The first step is to file a "petition for legal separation." Like a divorce, this petition must establish residency in Kansas as well as show that the marriage is irretrievably broken due to irreconcilable differences. Along with the petition, a summons, the appearance of attorney form, and an affidavit of residence are also required.
With the petition, be sure to include information such as:
The forms for a legal separation can all be found on the Kansas Judicial Center website. While it’s not necessarily required to have an attorney for the legal separation, it does help if you have questions, concerns, or require additional help when filing the initial petition. At any point during the legal separation case it is also highly recommended and often imperative that you have an attorney on your side when it comes to the final orders.
In the state of Kansas, all the legal separation forms must be filed with the court clerk of the county in which either spouse has a residence when the action is started. If the respondent does not propose any changes to the order, the court will eventually issue a decree of legal separation after considering the petition, the orders requested, the affidavits and the testimony at the hearing. It’s important to note that even before the legal separation is made final, a wide variety of decisions can be made, including how assets should be divided and what kind of alimony should be paid.
As the proceeding unfolds in the case of legal separation, you may find that you still want to go forward with a divorce. If that is the case, you can give notice to the court in writing that you’re amending the petition to refer to a divorce. When you change the language, you may also go forward with the divorce without having to start from step one all over again. In some unusual circumstances – typically around very high-value assets that require more attention – you may choose to obtain a temporary order until the legal separation can be pursued in a permanent capacity. This is sometimes in cases where the divorce is likely to go on for many months, and an interim order can help bring some peace of mind.
Legal Separation Consequences
The implications of legal separation are important to understand, even if you have no plans of being legally separated. A legal separation is a step that not many people take, but it can have financial, legal, and personal effects on your life that are far-reaching. While legal separation is certainly the best option for some people, others might find that it is a huge hassle with no big benefit.
How does legal separation affect property division differently? The property that you and your spouse acquire during your legal separation is subject to equitable distribution. The same principle applies upon final divorce. However, property acquired by either party after separating is considered separate property and it is not subjected to any property division. This is the biggest difference. It is a significant enough difference that your attorney will likely recommend that you file for divorce after a year. If you are living apart with the intention of ending your marriage , then you may as well get divorced instead of separated. That will save you time and the headaches involved in dealing with two processes. Those who are legally separated are still legally married and cannot marry anyone else. That means those who go through this process are only delaying their divorce, which tends to be a waste of money unnecessarily.
How does legal separation affect child custody differently? Child custody and child support arrangements are the same for legal separation and divorce. Having a legal separation performed means that legal authority has been given to make those arrangements.
How does legal separation affect financial matters differently? Pursuant to K.S.A. 23-3529, if you and your spouse are legally separated, then the duration of the payments is 50 percent of what would occur in a divorce. In other words, if you would be required to pay your spouse for one year to help them get an education or some other situation, then when you are legally separated, the judge will order that the duration be for six months instead of one year. Child support payments work the same way. In other words, the future costs of taking care of the children will be reduced by half.
Advantages and Disadvantages of Legal Separation
When considering an alternative to divorce, both spouses have to fully understand all the implications, and weigh the benefits and drawbacks of a legal separation.
Benefits:
Legal separations may be more beneficial to couples that are thinking about divorce for a trial run. It places the legal separation process in between the five steps to divorce and the finalization of the end of the marriage. It allows each spouse to decide if the time is right to end the marriage, and still provides them with a fall back position of continuing the marriage.
Having a mandatory separation period allows couples to get help for the problems in their marriage. There may be situations when there is a religious objection to the concept of divorce that can be worked out in a period of legal separation. The idea of a mandatory separation period with no contact allows couples to "see" that that their spouse hasn’t really changed and that getting a divorce is the best thing for them.
On a more practical note, legal separation may qualify one of the spouses for health insurance benefits. Depending on the nature of the companies involved and the situation, a spouse that is covered by one company’s health care plan might be able to continue receiving benefits under that plan as a legal separation rather than as a divorce.
Drawbacks:
Legal separations can be expensive. Each spouse has to take time to go through the process, and there’s a third party legal separation attorney that each spouse needs to have in order to go through the process. Because divorce and marriage are both such huge life events, it can be costly to go through such a process. Each of the spouses need to establish a new living situation, and they may even need to hire attorneys to go through the legal separation process. That can be costly as well.
Many people may be drawn to the idea of a legal separation because they want to avoid the financial burdens that come along with a divorce. But legal separations aren’t free either. You may save some money on future alimony payments, or you might avoid splitting assets with your spouse. However, without the legal divorce or annulment, with the coming of the divorce court and the divorce decree, you may be exposing yourself to more liability than you think.
You may be legally bound to pay joint debts or be responsible for personal injury liability from an accident you had while married. It may seem attractive to be separate from your spouse throughout the many months it may take for separation to become final through a formal divorce. However, continued exposure to liability after legal separation may make the process more costly after all.
The Decision Between Legal Separation and Divorce
Making the Right Choice: Should You Get Legally Separated or Divorced?
As you contemplate the best path to take, it’s important to consider the emotional and financial expenses associated with separation and divorce. The former is often a more emotionally taxing and expensive process, as spouses are expected to live apart and separately for a period of time while attempting to work toward reconciliation first.
As such, you may want to explore this option if:
In many cases, however , you’ll want to eventually dissolve your marriage through the process of divorce. You may feel that it’s better to separate than to divorce, but you ultimately realize the relationship is irreparable.
Some of the most common reasons for choosing divorce over legal separation include:
Every situation will be different, as there are numerous contributing factors you must weigh when deciding whether to separate or divorce. In those instances where your situation merits legal counsel, you should seek professional advice regarding the options available to you.
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