LEGAL SEPARATION

The legal phrase for the cause of action that most people refer to as "legal separation" is an "action for separate maintenance." It is really a holdover from earlier times when divorces were harder to obtain. In those cases, when the grounds for divorce were not sufficiently proven, nevertheless the court could still use its inherent powers of equity to separate the parties and their affairs.

In a legal separation, the court has all or almost all the powers it has in a divorce case. In other words, the case will (1) divide the parties' assets, debts and liabilities; enter orders pertaining to child custody; enter orders for child support; and provide for "spousal maintenance," formerly known as "alimony." All of the matters that can be determined in a divorce case will be determined in a legal separation; however, the case will not result in a decree of divorce. At our law firm, we listen to our client's goals at the outset of your case and craft an approach to the case that meets your needs. When we have clients who do not want to divorce, but who cannot continue living with their spouse under the status quo indefinitely, we often suggest an action for separate maintenance. Because it is relatively rare, it often signals to the other side that our client is open to reconciliation, but has simply run out of other options. We have even obtained court orders for professional counseling during the pendency of the case. This often gives the parties some breathing room to try to work things out. In contrast to a divorce case, which often polarizes the parties, the action for legal separation tends to set a more conciliatory tone.

The grounds for separate maintenance or legal separation are the same as for divorce, that is:

(1) incompatibility

(2) failure to perform a material marital duty

(3) incompatibility by reason of mental illness, and

(4) incompatibility by reason of mental incapacity

Persons considering filing for legal separation should be aware that if the other side countersues for divorce or annulment, the court will likely grant the divorce or annulment (provided the grounds for either are met). Even if one obtains final orders in the legal separation that provides for custody and child support, that divides the parties assets and debts, and which provides for spousal maintenance ("alimony"), all those matters can be revisited in the event one of the parties later files for divorce. However, a properly drafted settlement agreement can specifically address this issue in advance and may bring finality to the issues even in the event of a later divorce action. Clients should be aware that the court still reserves the power to revisit issues pertaining to the minor children, including custody and child support.

If you are considering filing for legal separation, contact our law firm to consult with a family law attorney about your rights and potential solutions in light of your goals. Our experienced divorce lawyer is extremely familiar with legal separations and has represented numerous clients pursuing this legal action.

For years, our lawyers have strived to provide the best legal representation possible throughout Kansas and Missouri. Our office is located in Olathe, KS, across the street from the Johnson County District Courthouse, where we practice nearly everyday. Our attorneys are extremely qualified and help clients throughout the Kansas City area, espcially in Olathe, Overland Park, Leawood, Lenexa, and Shawnee.