Exploring your legal options with a knowledgeable attorney is the best right to protect your rights and interests. If you or your spouse have contemplated divorce, but you are not sure this is the route you wish to take, talk to the Overland Park family law firm of Joseph, Hollander & Craft.
What Is Legal Separation?
Kansas law allows married couples to separate from each other, live apart, yet still remain married. Many people refer to this scenario as “legal separation,” although the technical term is “separate maintenance.” In this scenario, the spouses will have a court-approved separation agreement with terms that govern property division, spousal support, child support, and child custody.
This is much like a divorce, with the important qualification that the spouses are only separated (not divorced). They therefore cannot legally remarry.
Notably, obtaining a decree of separate maintenance requires that the spouses agree that is what they want. If one spouse files an action for separate maintenance and the other party requests a divorce, the court must grant the divorce request.
What Is the Process of Obtaining a Legal Separation?
Before making a decision regarding legal separation and whether you should pursue it instead of a divorce or annulment, you should speak with a family lawyer who serves clients in Overland Park. If you decide to move forward with separation, the process will include these steps:
- File a petition: To initiate the legal separation process, a spouse needs to file a petition in district court alleging certain grounds. They are identical to the grounds for divorce: incompatibility, failure to perform a marital duty, and incompatibility due to mental illness or incapacity.
- Serve the petition: The petition will then need to be served on the other spouse in accordance with the Kansas Rules of Civil Procedure. Having an Overland Park attorney is important to ensuring both the form and service of the petition are proper, and the other spouse will be given a chance to respond.
- Temporary orders, if necessary: Some spouses need temporary orders for such matters as property division, child support, and child custody. The court may enter these as needed.
- Discovery: As with any other civil matter, the parties can conduct discovery. This is the formal request and exchange of documents and information that pertain to the substance of the legal separation.
- Negotiation: The spouses may decide to negotiate and try to reach a legal separation agreement.
- Court hearing: If the spouses can settle their differences and reach an agreement, the court will review and (likely) approve it. Otherwise, the judge will need to decide how to address the outstanding issues.
- Decree of separation: Either way, the court then issues its decree of legal separation. Although the parties will obtain orders regarding property division, child custody, and spousal support as they would in a divorce, the spouses will still be married.
Advantages and Disadvantages of Legal Separation
Obtaining a legal separation can be beneficial to both spouses, especially when they work with knowledgeable legal counsel. But they should review both the advantages and disadvantages of separation and compare them with divorce. Here are some points to keep in mind.
Advantages
- Religious or personal convictions: Some couples choose separation over divorce for religious or personal reasons. A separation allows spouses to adhere to their beliefs while resolving matters like custody and support.
- Possible reconciliation: Spouses may benefit from the time apart, and use it to handle problems in the marriage with the goal of reconciliation. Since the spouses are still married, they have the opportunity to resume their marriage relationship.
- Health insurance: When spouses divorce, they typically cannot enjoy the same health insurance benefits they did as a married couple. Some people choose separate maintenance to continue uninterrupted insurance benefits.
- Financial benefits: The continuation of the marriage may allow the spouses to enjoy other financial benefits. These may include tax breaks and military benefits not available to single or divorced individuals.
Disadvantages
- More is needed for divorce: Legal separation is similar to divorce, with the main difference being that the spouses are still married. If they later decide to divorce, they will need to spend more time and deal with more legal steps.
- Continued financial involvement: Because the spouses are still married, their finances are still tied together. Financial planning can be more complicated.
- Unresolved matters: Separation is a sort of limbo in terms of the spousal relationship because the spouses do not have to continue living together, but they are not free to remarry either. It lacks the finality of divorce and leaves issues to be decided another day.
What Is an Annulment?
Many people believe annulment to essentially be another word for divorce. While an annulment ends the marriage, it is on the basis that the marriage was either void or voidable.
“Void” means that the marriage was invalid as a matter of law. In other words, the spouses were never legally married to begin with. The two most commonly asserted situations involving a void marriage are those in which:
- One spouse was still legally married to someone else (the subsequent marriage would be considered bigamy)
- The spouses are blood related as first cousins or closer
On the other hand, a “voidable” marriage is one that is valid at the time it begins but which can subsequently be declared void under certain circumstances. The bases upon which to claim the marriage is voidable are:
- Fraud
- Mistake of fact
- Lack of knowledge of a material fact
- Any other reason that justifies voiding the marriage
Examples of Voidable Marriages
These are some examples of voidable marriages, for which the court may consider granting an annulment:
- A spouse who was under the age of 18 did not obtain proper consent to marry from their parents
- One of the spouses was legally incapable of consenting to the marriage
- One of the spouses was forced into the marriage
- Incurable impotence, of which the other spouse was unaware at the time of marriage
- One spouse intentionally misleading the other about a significant fact
The process of obtaining an annulment is similar to that of divorce and legal separation. The party requesting the annulment files a petition stating the basis for the request and serves it on the other spouse. The court will then hold a hearing to determine if there are sufficient grounds for voiding the marriage.
As with a divorce or legal separation, the parties will need to address property division, spousal support, child custody, and child support. The major difference is that, at the end of the process, the spouses are treated for legal purposes as though they were never married to each other.
Explore Your Legal Options with Dedicated Counsel
Whether you should pursue divorce, legal separation, or an annulment will depend on the unique facts of your marriage. Get in touch with Joseph, Hollander & Craft. We have offices in Overland Park, Lawrence, Topeka, Wichita and Kansas City, MO for your convenience.
