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, the court nevertheless used its inherent powers of equity to separate the parties and their affairs.
Understanding Legal Separation
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:
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 Martin & Wallentine, 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.
Grounds for Divorce in Kansas
K.S.A. § 23-2701 lists the following grounds for separate maintenance or legal separation, which are the same as those for divorce:
- Failure to perform a material marital duty
- Incompatibility by reason of mental illness
- 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, all those matters can be revisited in the event one of the parties later files for divorce.
A properly drafted settlement agreement, however, 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.
Hire an Johnson County Legal Separation Lawyer
If you are considering filing for legal separation, contact Martin & Wallentine to consult with a family law attorney about your rights and potential solutions in light of your goals. Our experienced Johnson County 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 all of Johnson County. Our office is located in Johnson County across the street from the Johnson County District Courthouse, where we practice nearly every day. Our attorneys are extremely qualified and help clients throughout the area, especially in Johnson County, Overland Park, Leawood, Lenexa, and Shawnee.
Call our firm today at (913) 764-9700 to take charge of your situation.
Read What Our Former Clients Have Said
"Professional, informative, and vital in working with the prosecutor to secure the most favorable outcome possible".Barb
"Jerry kept in constant contact with us and our son during the case and went the extra mile to plea before the judge outside and inside the courtroom".Joanne from Nebraska