Under some circumstances, married spouses may choose to pursue a court process for legal separation instead of petitioning for divorce. In Kansas, a court action for legal separation is also referred to as an action for separate maintenance. The statutory requirements and process for legal separation involve more than just the spouses living apart.
If married spouses obtain a divorce, the court order granting the divorce legally terminates the marriage. In contrast, an action for separate maintenance or legal separation does not end the marriage. However, a legal separation action does address parental and property matters relating to the marriage in much the same way that a divorce does.
In a separate maintenance action, the final court order determines parental rights and responsibilities, spousal and child support, and property distribution. Typically, the spouses negotiate through their lawyers and determine the specific terms in a separation agreement. If the parties are unable to agree on any issues, the judge makes those decisions for the spouses.
To obtain a legal separation, the spouses must agree that separation is preferred over divorce. If one spouse files a petition for separate maintenance, and the other spouse requests a divorce, the court must rule on the divorce request instead of the separate maintenance petition.
Under Kansas statutes, the grounds for a separate maintenance action are the same as for a divorce. The law provides that a spouse may request a divorce or legal separation for any of these reasons:
Spouses are eligible to file a separate maintenance request if one of the spouses has resided in Kansas for at least 60 days before filing of the petition. The residency requirement is the same as it is for a divorce.
In an action for separate maintenance, the married spouses list the terms and conditions for the separation in a written contract, called the separation agreement. When the court grants the request for separate maintenance, the separation agreement becomes part of the court order and remains in effect unless the court modifies or terminates it. If the parties eventually divorce, the divorce decree likely will incorporate the terms of the separation agreement as well.
In most cases, the judge accepts the separation terms negotiated by the parties, as long as the terms are valid and fair to both spouses. In the event the court does not feel the terms are fair, the judge can modify terms, including those relating to the parenting plan, custody and visitation, and child support.
While separate maintenance actions occur less frequently than divorce actions, there are reasons that a couple may choose legal separation over divorce. The unique circumstances of a married couple may make legal separation preferable to divorce.
One of the most common reasons for a legal separation is to provide a degree of separation between the parties to give the spouses time to try to save the relationship before filing for divorce. Another common reason is a desire to provide a stable home environment for minor children and avoid putting them through the emotional trauma of a divorce.
Other reasons that a couple may choose legal separation over divorce include:
The decision to pursue legal separation or divorce is highly personal and dependent on a couple’s own situation. In cases where there is uncertainty about the best course to pursue, talking with an experienced Kansas family law attorney can provide clarity and help determine the right way to proceed.
While technically you could represent yourself in an action for legal separation or divorce, doing so puts you at serious risk of losing important rights. A spouse contemplating separation or divorce always should consult with a knowledgeable Kansas family law attorney before taking any steps toward filing a court action.
Making the right decision between a separate maintenance action and divorce petition is just one reason that legal counsel is essential. In a legal separation or divorce action, the judge ultimately determines your property rights (including your responsibility for debts), as well as your rights regarding custody and support of your children. If legal counsel does not represent you when the judge makes those determinations, it may be difficult to obtain modifications of those decisions in the future. Important rights relating to your children and property could be lost permanently.
In a separation or divorce action where parental and property rights are critical, each spouse should be represented by his or her own attorney. The lawyers play an important role in negotiating the terms of the separation or divorce between the two spouses. Each attorney vigorously protects the rights and interests of his or her client in those negotiations.
In addition, representation by a lawyer ensures that all procedures required by law and by the court are followed throughout the action. That includes gathering evidence and introducing it in court, in accordance with legal rules. Learning and following all the rules and requirements that apply to family law court actions is a very challenging task for a person without formal legal training.
Our domestic and family law attorneys at Hampton & Royce, L.C., understand how intensely personal and emotional legal separation and divorce issues are for spouses contemplating separating or ending a marriage. We make certain that we protect the interests and needs of our clients for both the short-term and the long-term.
We serve clients throughout the State of Kansas. Contact us to schedule a consultation.