Legal Separation in Kansas FAQs

Married couples in Kansas can choose divorce to terminate their marriage. But what happens if you aren't quite ready for such a permanent result, or you want to keep valuable benefits that you will lose in divorce? Are you familiar with the state's separate maintenance process?

By , Attorney · Cooley Law School
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What's the Difference Between Divorce and Legal Separation in Kansas?

Married couples in Kansas have two options to end a marriage: divorce or separate maintenance (legal separation.) Divorce is a process that permanently terminates the marriage and restores the spouses to their previous legal status as single individuals. In addition to dissolving the legal relationship, it also entitles the spouses to reinstate a former or maiden name. Typically, divorcing spouses can negotiate the terms of their divorce without a nasty court battle. In the rare case that the spouses can't agree, the court will decide how to handle the remaining issues.

Legal separation is like divorce in that the couple can decide how to allocate parental rights and responsibilities, child support, and property distribution. Additionally, like divorced couples, legally separated spouses can acquire property and debt, create contracts, and live as though they are unmarried. The critical difference between the two remedies is that at the end of the legal separation process, the couple has a separate maintenance agreement and are still legally married.

Why Choose Legal Separation?

There's no single answer for why couples choose to separate rather than to divorce. Some couples use a legal separation to work through their differences and try to save the relationship. Others use it as a stepping stone to divorce. For example, if one spouse wants a divorce but the other doesn't, a legal separation might be the perfect compromise for both individuals.

Relationships are intensely personal, so every couple's decision is based only on their situation, but some of the most common reasons to choose legal separation instead of divorce include:

  • a religious, moral, or social objection to divorce
  • to preserve medical or other insurance benefits that would terminate with divorce
  • a dry-run for divorce
  • to provide a stable home for minor children and avoid the trauma of divorce, and
  • to live separate and apart but remain protected by court orders addressing support or property division issues.

What Does Separate Maintenance Mean in Kansas?

Separate maintenance (legal separation) in Kansas begins when one spouse files a formal petition (request) with the county court. The application should contain essential information including each spouse's name and birthday, whether there are minor children from the marriage, if so, names and birthdays of each child, each spouse's address, the date of the wedding, and the date your separation began. You'll also need to demonstrate to the court that you meet the state's residency requirement, meaning at least one spouse has lived in Kansas for a minimum of 60 days before filing.

Like a divorce, couples seeking a legal separation must also provide the court with a legally acceptable reason, or grounds, for the request. Kansas is a no-fault divorce state, meaning neither spouse needs to point fingers at the other to prove a breakdown in the marriage. Instead, you only need to tell the court that you and your spouse are incompatible. Kansas law also allows couples to allege the following for legal grounds:

  • failure to perform a material marital duty, or
  • incompatibility due to mental illness or mental incapacity of one or both spouses.

There is a 60-day waiting period from the time you file your request to when the judge can grant the separation. During this time, the court may order you and your spouse to attend marriage counseling to try and save the relationship. The judge will waive this requirement if there is evidence of domestic violence. Couples should also utilize this time to negotiate the terms of their separation, including child custody, child support, property and debt division, and spousal support. If, after the 60-days expires, you haven't reconciled, or either spouse objects to the terms, the court will resolve the outstanding issues and finalize your separation.

Either spouse can ask for a divorce during or after a legal separation.

What About a Trial Separation?

If you want to strike fear in 99% of the population, serve them with court papers. Legal matters, no matter how small, can be emotional and scary. If you're undecided about entering the complex legal world for a separation or divorce, a trial separation might be the best path for you to take.

A trial separation is a way for couples to test the waters of living separate and apart without involving the court. In most cases, the spouses can negotiate the terms of the separation orally, including whether there will be an end date for the trial and a parenting plan. If you'd like a more formal agreement, you can put your terms in writing. However, the court doesn't authorize or enforce trial separations, so if one spouse fails to abide by the terms, the other doesn't have a way to implement it.

At the end of the trial separation, couples will reconcile, proceed with a legal separation, or file for divorce.

What's a Separation Agreement?

Kansas law requires couples to list the terms and conditions of their separation in writing. A separation agreement is a legally binding contract that remains in effect until the court modifies or terminates it. If the couple decides to divorce, in most cases, the judge will incorporate the terms of the separation agreement into the judgment of divorce.

The court encourages couples to work together to create the best settlement for their family, so if you present a proposed agreement to the court, the judge will approve it if it is valid, just, and fair to both spouses. The contract should contain provisions that address property and debt division, spousal support, and a parenting plan. However, the court has the final say on any matters that impact legal custody, residency, visitation parenting time, and child support.

Should I Hire an Attorney?

In most cases, yes. While the law permits you to represent yourself in a legal separation or divorce, the rules are complicated and always changing. If you aren't confident in your ability to interpret the laws, you should hire an experienced family law attorney in your area. Attorneys are highly trained and can become your best advocate in a stressful time.

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