What Is a Legal Separation?
A legal separation in Kansas or Missouri is an option to address important issues when you do not want to seek a divorce. Some couples choose to seek a legal separation when they want to bring closure and separate finances to a relationship without ending or terminating the relationship.
With a legal separation, you are still required to address all of the formalities of a divorce process, including generally the following things:
You will be required to file a petition for legal separation (this petition will be very similar to a petition for divorce but will state that the marriage does not need to be dissolved or ended)
Come to determinations about child custody, child support, maintenance/spousal support, and property division, which may be decided by an agreement between you and your spouse or by a judge if the two of you cannot come to agreements, and
Get a final Judgment of Legal Separation from the court.
The legal process through the court system for seeking a divorce or a legal separation are similar in that if you and your spouse are unable to come to agreements, the court will schedule a trial date and make the decisions for you. The biggest difference between a legal separation and a divorce is that at the end of the legal separation process, when a judgment is issued, you and your spouse will still be married. Neither of you will be able to remarry, unless one of you seeks to convert the Judgment of Legal Separation to a Judgment for Divorce (or Dissolution of your marriage).
Couples choose to seek a legal separation instead of a divorce for a variety of reasons. Some couples do not wish to live together and continue in a marital capacity, but their religious beliefs, moral or social beliefs forbid or preclude divorce. Some families choose to keep the marital institution intact for the sake of the minor children or they want a dry-run at what the reality of a divorce will look like for their family. For others, they are trying to avoid their perceptions that they will be judged or shunned in their culture. Still others pursue a legal separation for tax filing status considerations or to maintain health insurance (although many health plans now consider legal separation a disqualifying event under the plan).
When spouses elect to seek a legal separation, it has to be a mutual decision, meaning if one spouse prefers a legal separation, but the other seeks a divorce and indicates the marriage cannot be preserved, the court will grant the divorce as requested by one of the spouses. Generally, remaining married and working through the legal separation process requires communication and cooperation, often something spouses struggle with at the point that they are seeking divorce or legal separation. Often, couples struggle to sufficiently communicate and work through the necessary issues of a legal separation and end up jointly electing to seek a divorce or dissolution of their marriage.
What are the key differences between legal separation and divorce (or dissolution of marriage)?
A legal separation does not change your marital status. This means you remain legally married to your spouse unless you seek to convert the legal separation to a divorce decree;
Many couples view the ability to remain married as a benefit because the spouse’s right to certain benefits such as social security, military entitlements or benefits, if a spouse is near retirement and a divorce will affect retirement benefits, life insurance spousal benefits, tax benefits and medical insurance can potentially remain intact (although as mentioned above, this should be researched before proceeding);
In some circumstances where a party owns a business or otherwise relies on lines of credit, the even of a divorce may obstruct the parties access to needed financing which will harm the financial interests of both parties;
Unlike in divorce, for a legal separation, both parties have to agree to a legal separation;
You are unable to re-marry while you are legally separated;
Legal separation allows you and your spouse to reconcile You and your spouse want to determine whether it is possible to reconcile. If you and your spouse decide to reconcile eventually, the separation provisions of a legal separation can be ended/concluded;
What Is a Separation Agreement?
A separation agreement is something different from the formal legal process of getting "legally separated" or seeking a legal separation. In Kansas or Missouri, when spouses have decided to separate they are able to enter into a "separation agreement," which is a legally binding contract between the spouses addressing all aspects of their separation, including for example, property division, child custody, support, parenting time, and spousal maintenance or support obligations. A legal separation requires a court process and a judgment of legal separation, whereas, spouses can enter into a separation agreement and not file it or seek further involvement from the court (most spouses use their separation agreement as a step toward their divorce process, but you certainly are not required to).
A separation agreement allows couples to address important issues that will come up during their separation (and sometimes a separation agreement forms the basis for a final agreement for either a legal separation or a divorce), including:
Where the children will live during the separation period;
What time the children will spend with each parent;
How the family will pay living expenses, including things such as rent or mortgage payments, utilities, taxes, health care costs, vehicle expenses, and costs for the children’s needs and expenses during separation;
Whether either spouse will pay the other child support and/or spouse support during separation;
How the couple will manage and maintain or not spend assets (for example, bank accounts or investments) during the separation period;
Whether the couple will divide or sell any property during their separation period, and
How the couple will deal with property and income obtained after the date of the separation;
While a separation agreement is a formal contract between the parties and generally binding on both spouses, it does not have the same effect as a court ordered legal separation or divorce. If you and your spouse are having difficulty living with one another and what to consider taking some time apart to decide your next steps, it may be reasonable to simply negotiate and enter into a separation agreement.
If my spouse and I agreed to a legal separation but now want to reconcile can we stop the legal proceedings?
Yes, you can at any time before a Judgment of Legal Separation is entered. If you decide you want to reconcile, your legal separation attorney can file to have the petition dismissed. This can occur at any stage of the proceedings. However, if you are “working on” reconciliation, it is generally advisable to leave your case open and pending for a few months while you and your spouse make sure that you can work through your issues. Once your case is dismissed, if you decide you need to move forward with legal separation proceedings, you will have to re-file and start the case over.
Is legal separation required before I can get divorced?
No. Neither Kansas nor Missouri require a legal separation as a pre-requisite to a divorce filing. If you choose to file for a legal separation, you can amend your filing at any time and seek a divorce instead, if you reconsider your options. Both legal separations and divorce are complex legal matters and it is important that you have a knowledgeable and experienced family law attorney on your side who can help you make these important decisions and ensure your best interests are protected.
If a spouse dies after a legal separation will the surviving spouse receive the legal benefits of a marriage such as inheritance and social security benefits?
Yes and no. If you are legally separated, you are still married. Thus, you are generally entitled to the same benefits as though you are still married, because you are. However, often your inheritance entitlements and other benefits are negotiated in the legal separation agreement. If you and your spouse agree to make assets separate property belonging to each of you, for example, the legal separation agreement and judgment could be binding on the issues you and your spouse agreed upon.
What Does Separate Maintenance Mean in Kansas?
In Kansas, a legal separation is sought through an action for separate maintenance. One spouse files a formal petition with their court of their county. The application contains essential, personal demographics, information about the children born of the marriage, the date of the marriage and the date the separation began. You’ll also need to demonstrate you have met the state’s residency requirement meaning that one spouse has resided in Kansas for at least sixty (60) days prior to the filing. There is also a 60-day waiting period from when you file to when the Judge can grant the separation as a Judgment for legal separation or separate maintenance.
How do you file for a Legal Separation in Missouri?
In Missouri, you file a Petition for Legal Separation. The petition will look almost identical to a Petition for Dissolution of Marriage in Missouri except you will not state that the marriage is irretrievably broken and you will indicate that there is a likelihood or possibility that the marriage can be preserved. In Missouri, there is a 30-day waiting period before the judge can grant the Judgment of Legal Separation.
Can either spouse force us to get divorced?
Yes, after a legal separation is filed, if either spouse files for a divorce, it will be granted. The court is not going to require or force one party to stay married against his or her desire.
If you are unsure whether a divorce or a legal separation is the right decision for your family, you need the help of an experienced family law attorney from Pingel Family Law. Our attorneys are experienced at successfully helping clients through legal separation and divorce cases and they can help you decide the best process for your family and your individual needs. Call us today at (816) 208-8130. We will get through this together and be able to provide you invaluable decision-making advice at the time you need it most. Our firm is here to provide you support and honest, clear guidance.
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