The divorce process is straightforward and typically begins when one spouse files a petition (application) for divorce. During the process, either the couple or the judge will create a divorce agreement that settles property division, custody, and support issues. The goal of divorce is to put both spouses back in the same position they were in before the marriage, which includes terminating the marriage and allowing each spouse to remarry if they choose.
Legal separation is like divorce in that the judge will decide the same divorce-related issues, but in the end, the couple is still legally married. Legally separated couples live a life apart from their spouse, but neither can remarry unless the court converts the separation into a formal divorce.
Divorce is permanent, meaning the only way you can be legally married to your spouse again is to apply for a marriage license and meet your state's marriage requirements. If you are legally separated, and you reconcile your relationship, either spouse can ask the court to vacate (eliminate) the separation order. (K.R.S. §403.050.)
Everyone knows "that one couple" that seems perfect in every way. Imagine your surprise when your friend sits you down to announce that there's trouble in the relationship and divorce is imminent. How did you miss the signs? You didn't. Relationships are deeply personal on every level, so a couple's decision to pursue a legal separation instead of divorce is no different.
There's no formula or test you can use to decide if legal separation is right for you. Some of the common reasons couples choose to avoid the divorce process may include:
Kentucky doesn't limit its residents to divorce as the only option for ending a relationship. The process for legal separation requires at least one spouse to file a petition for separation with the local court. (K.R.S. § 403.150.) You must demonstrate that you (or your spouse) have been a Kentucky resident for a minimum of 180 days before applying and that you have lived separate and apart from your spouse for at least 60 days. (K.R.S. §§ 403.140, 403.170.)
Like a divorce action, you must give the court a legal reason, or grounds, for your request. Kentucky is a no-fault divorce state, meaning you must only prove that your marriage is irretrievably broken and your efforts to reconcile have failed.
There is a 60-day waiting period from the time you file your request to when the judge can approve or deny it. (K.R.S. § 403.044.) During this time, you and your spouse can negotiate the terms of your separation, like property division, child custody, child support, and spousal support (alimony). If you agree, you can present the court with a written agreement, and the judge will sign it. If you can't agree, the judge will decide the issues for you.
Legal separations are usually temporary and, in some states, either spouse can ask the court to convert the separation into a divorce any time after the judge grants the request. In Kentucky, however, you must be legally separated for a minimum of one year before either spouse can ask for a formal divorce. (K.R.S. § 403.230.)
It's important to understand that you can only file for a legal separation if both spouses agree to the legal process. If either spouse wishes to divorce, the court will not proceed with a legal separation.
Unlike what you see on television, divorces and separations aren't a quick process. Before you and your spouse decide which route is best for your relationship, you may want to consider a trial separation, which is where you live separate and apart to reevaluate your marital relationship. During this time, you can agree verbally or in writing to the terms of your temporary separation. The court doesn't monitor trial separations, so the restrictions and conditions are entirely up to the couple.
At the end of the trial separation, you can decide to reconcile, file for a legal separation, or begin the divorce process.
In Kentucky, before a couple can file for separation, you must live apart for at least 60 days. If you can't afford to live in separate homes, you can meet the requirement while living under the same roof, but you must stay in separate bedrooms and abstain from sexual relations with each other during the separation. (K.R.S. § 403.170.)
If you fail to prove that you've lived apart, you risk the court dismissing your petition, which starts the waiting and separation period over and can delay your case even further.
A separation agreement is a legally binding contract created by the couple or a judge during the separation process. The purpose of the contract is to promote an amicable settlement between the parties and settle disputes before they arise.
Every agreement must contain a comprehensive plan on how you will divide your marital property and allocate debt. You should also include your preferences for child custody and child support, and spousal support. If either spouse objects to the terms of the contract, the judge will decide the issue for you. (K.R.S. § 403.180.)
Kentucky judges will approve your settlement agreement if it's fair and equitable to both spouses. Although the court encourages parents to work together to create an ideal custody and support arrangement, the judge must evaluate whether the settlement is in the child's best interest.