Married couples in Kansas have two options to end a marriage: divorce or legal separation. While both processes involve dividing parental rights, responsibilities, child support, and property distribution, there is a crucial distinction to be made. Divorce permanently terminates the marriage, while legal separation allows the couple to remain legally married.
Why Choose Legal Separation?
Couples opt for legal separation for various reasons. Some see it as an opportunity to work through their differences and potentially save the relationship. Others view it as a stepping stone towards divorce, especially when one spouse is ready to end the marriage while the other is not. Ultimately, the decision to pursue legal separation is deeply personal and based on the unique circumstances of each couple.
Common motivations for choosing legal separation over divorce include:
Religious, moral, or social objections to divorce: For couples who value their beliefs and wish to honor them while still addressing the issues within their marriage, legal separation provides a viable alternative.
Preserving insurance benefits: In some cases, couples may want to maintain medical or other insurance benefits that would terminate with divorce. Legal separation allows them to retain these benefits while living separately.
A trial run for divorce: Legal separation can serve as a trial period to assess whether divorce is the best course of action. It allows the couple to experience living apart and navigating the complexities of separation without the finality of divorce.
Providing stability for children: When minor children are involved, couples may choose legal separation to minimize the potential trauma associated with divorce. By maintaining a stable home environment and avoiding the disruption that often accompanies divorce, parents can prioritize the emotional well-being of their children.
Court-ordered protections: Legal separation enables the couple to obtain court orders that address support or property division issues, providing a sense of security and clarity during the separation process.
What Does Separate Maintenance Mean in Kansas?
To initiate a legal separation in Kansas, one spouse must file a formal petition with the county court. The petition should include essential information, such as the names and birthdays of both spouses, the existence of minor children from the marriage, addresses, wedding date, and the date of separation. The spouse filing the petition must also establish that they meet the state’s residency requirement, which mandates at least 60 days of residency in Kansas before filing.
Unlike fault-based divorce states, Kansas follows a no-fault divorce system. This means that couples are not required to assign blame or prove the breakdown of the marriage. Instead, it is sufficient to inform the court that the spouses are incompatible. However, Kansas law also allows couples to cite specific grounds for legal separation, such as failure to perform marital duties or incompatibility due to mental illness or incapacity.
Once the petition is filed, there is a 60-day waiting period before the court can grant the separation. During this time, the couple may be required to attend marriage counseling, with exceptions made in cases involving domestic violence. This waiting period allows for negotiations on matters such as child custody, support, property distribution, and spousal support. If the couple fails to reconcile or agree on the terms within the 60-day period, the court will step in and make decisions on outstanding issues to finalize the separation.
It is important to note that either spouse can request a divorce during or after a legal separation, depending on how their circumstances evolve.
What About a Trial Separation?
If you find yourself unsure about embarking on the legal process of separation or divorce, a trial separation may be a suitable option. A trial separation allows couples to live separately without involving the court. The terms of the separation can be negotiated orally, specifying details such as the duration of the trial separation and a parenting plan. If desired, couples can also create a written agreement to formalize their arrangement. However, it is important to understand that trial separations lack the legal authority and enforcement mechanisms that accompany formal legal separations.
At the conclusion of a trial separation, couples may decide to reconcile, proceed with a legal separation, or ultimately file for divorce.
What’s a Separation Agreement?
In Kansas, it is a legal requirement for couples to document the terms of their separation in a written agreement. Known as a separation agreement, this legally binding contract remains in effect unless modified or terminated by the court. Should the couple choose to divorce, the terms of the separation agreement are typically incorporated into the divorce judgment.
The court encourages couples to collaborate and create a fair settlement for their family. If presented with a proposed agreement, the judge will approve it if deemed valid and just for both spouses. The agreement should address property and debt division, spousal support, and a parenting plan. However, the court retains final authority over matters concerning legal custody, residency, visitation parenting time, and child support.
Should I Hire an Attorney?
While self-representation is permitted in legal separation or divorce cases, the intricate nature of the law necessitates careful consideration. It is highly recommended to seek the guidance of an experienced family law attorney who can provide expert advice and advocacy during this challenging time.
For further information and assistance in navigating legal separation in Kansas, consider reaching out to Garrity Traina, a trusted resource for family law matters.