One would be hard pressed to find an attorney in Kentucky who would bring up, much less advocate, the use of legal separation over that of a dissolution of marriage (divorce) in situations where a marriage appears to be failing. Most family law attorneys, when asked about it, would dismiss it as just adding extra steps in what they assume is an inevitable divorce. However, I believe it is a viable alternative for a narrow segment of people who are needing some legal protections but retain even a tiny note hope for their marriage.
Kentucky Revised Statutes (KRS) section 403.140 provides for a legal separation as an alternative to the marriage being dissolved entirely. Subsequent provisions provide for division of property, establishment of child support, timeshare and custody, and setting spousal maintenance (alimony) in either a legal separation or a divorce. So, in most respects a legal separation and a divorce are indistinguishable. In fact, if a separation agreement is reached but the matter is later converted to a divorce, that same agreement will remain according the unpublished Kentucky Court of Appeals case Dobbs v Dobbs, 2010-CA-001068-MR. However, there are some critical differences to know before taking this course of action.
The first and most obvious difference between these two legal mechanisms is that with a decree of divorce the parties are free to remarry while a decree of legal separation preserves the status of being married. To file for divorce, one must testify that the marriage is “irretrievably broken”. That is the one legal basis for divorce in Kentucky. Of course, if one actually considered the definition of the word “irretrievably” and adhered strictly to that standard, we would have very few divorces. But, the reality is that has simply become a formality and as long as one party is willing to say the break in the marriage is irretrievable, no judge presses further. In a legal separation, no assertion that the marriage is irretrievably broken is put forth.
For some of you out there, irretrievably broken still means a divide between you and your spouse much deeper that feeling like you no longer love them. For some of you, you are discouraged and even heart-broken over the harm that has heaped up in the marriage, but you still believe drastic steps on each side plus a little divine intervention can redeem the relationship. For you, legal separation may be just the catalyst for that to happen.
It is not without risk, though. If one spouse files a petition for legal separation, then the other spouse can respond with a request to convert it to a divorce action and they can put forth that testimony of the marriage being broken irretrievably. The filing of the separation action, then, could be the very thing that pushes your spouse to divorce you. So, you need to know that the protection afforded by the law is actually needed before taking this risky step.
The protection you can get under a legal separation includes disentangling finances. So, if your spouse is taking your family towards financial ruin either through recklessness or bad acts, a legal separation may be necessary. Examples include where one spouse has an addiction that is costing lots of money and assets seem to be disappearing or where a spouse is failing to file taxes or filing false tax returns. Once the decree is entered, your income and property you acquire are yours alone and not marital assets.
The protections also cover determining who has what authority over the children and where children spend their time. So, if your spouse is struggling with issues that are harmful to the children, such as alcoholism or violence, a legal separation may be necessary while they get treatment.
A legal separation can also be used to put parameters on the contact between yourself and your spouse. If there is violence, then you can obtain a Domestic Violence Order without doing a divorce or legal separation, but sometimes the interaction falls short of violence or threats of violence but it continues to be toxic in some manner. This is where the legal separation process can be utilized to give some space while each spouse gets help for those issues.
A legal separation does not offer exactly the same protection as a divorce. For example, if you die during a legal separation your spouse could claim their dower or curtesy interest in your estate. These are inheritance interests – dower being the wife’s interest in her husband’s estate and curtesy being the exact same thing for the husband. So, even if you changed your will to leave everything to your children during the time a legal separation is in effect, your spouse could claim up to one-half (1/2) of your real estate and personalty interests upon your death. However, such concerns are usually not on the forefront of the mind of someone who wants to do everything they can to honor their marriage vows and resurrect their marriage since the same risk is present in a healthy marriage as well.