LEGAL SEPARATION

Under Kentucky law, a "Legal Separation" has a far different meaning than it does for most lay people.

Many believe that a "Legal Separation" is a simple process during which the parties have certain protections and liberties.  In truth, the "Legal Separation" process is largely identical to the DIVORCE process, resulting in a slightly different end product.

As in a divorce, a Petition must first be filed, in this case a "Petition for Legal Separation".  The filing fee must be paid to the Court and the other party has to be served with the Summons and Petition.  Assuming the parties are able to quickly come to full agreement, the terms of their "Legal Separation" have to be reduced to writing, executed by the parties and their counsel and then filed with the Court.  Then, one party can make a motion for the entry of a Decree of Legal Separation which declares that the parties are still married, but separated.  Neither party may remarry and they must wait a minimum of 365 days before asking the Court to modify this Decree of Legal Separation into a Decree of Dissolution of Marriage.

Under KRS 403.170, no decree may be entered until the parties have lived apart for sixty days. [Per KRS 403.170, "living apart" includes living under the same roof if parties do not engage in sexual cohabitation.] This rule is both a statutory cooling-off period and a requirement that the parties actually cease sexual cohabitation. The waiting period should be applied in legal separation cases because no decision to alter a marital relationship significantly should be made precipitously.

Why Get a "Legal Separation" Instead of a Divorce?

The primary reasons for seeking a Legal Separation instead of a DIVORCE are:

• The parties continue to have some affection for each other, but wish to establish separate lives, separate obligations, separate assets, separate responsibilities, etc.; they can remain technically married but legally separated.

• If one spouse has had serious medical problems (such as heart attack, stroke, cancer, etc.), the other party may not wish to leave his or her spouse without health insurance and so they can remain technically married but legally separated.

• If one or both parties do not believe in divorce on moral, ethical or religious grounds but recognize that their marriage has little chance of success or if they simply cannot continue to live as man and wife, they can remain technically married but legally separated.

Agreement of Both Parties Is Required

Legal separation permits the settlement of property, support and custody rights without dissolving the marriage. (KRS 403.140 and 403.180.) However, legal separation is available only if both parties agree. A court finding the marriage irretrievably broken may not enter a separation decree over one party's objection. Moreover, a court may not disregard significant evidence that the marriage is irretrievably broken to compel a legal separation. We designed this on the basis that would buy into legal separation versus divorce. Even so, you should understand this point. If she demands a divorce . . . wonderful! But, if we change to a divorce, it will cause problems as the Judge will view it as a material change of the deal.

Statutory Requirements for Legal Separation

KRS 403.140(1) does not set out findings of fact necessary for the entry of a legal separation decree separate from the four findings of fact required in marriage dissolution cases. Although legal separation is not a complete marriage dissolution, the requirements of KRS 403.140(1) should apply to legal separation decrees.

KRS 403.140(2) permits the court to enter the decree as a legal separation decree rather than as a marriage dissolution decree if one party requests the entry in that form and the other party does not object. KRS 403.140(2) implies that the requirements of KRS 403.140(1) apply to a decree of legal separation. By stating that the decree may be entered in the "form" of legal separation, KRS 403.140(2) suggests that the decree may be labeled legal separation. However, its entry requires finding similar to those necessary to support a marriage dissolution decree. The trial court must determine that it has jurisdiction, that the conciliation provisions of KRS 403.170 are inapplicable or have been met, that the marriage is irretrievably broken, and that the court has considered matters of property division, maintenance, custody and child support over which it has jurisdiction. These findings will be in our proposal to the Court.

Most of the requirements set out in KRS 403.140(1) are as applicable to legal separation as they are to marriage dissolution. However, a finding of irretrievable breakdown may appear inconsistent with entry of a legal separation decree. KRS 403.170 defines irretrievable breakdown as an instance in which there is no reasonable prospect of reconciliation. There is no salient policy reason for denying legal separation to parties who wish to use it to reconcile ambivalent feelings regarding the marriage. However, under KRS 403.230, a legal separation decree may be converted to a marriage dissolution decree after one year on the motion of either party. A prior finding of irretrievable breakdown is necessary to the entry of a marriage dissolution decree. If no previous finding of fact states that the marriage is irretrievably broken, the trial court should make such a finding prior to entering the order for marriage dissolution. The point is, "Do it now!"

Living Apart

The statutory living apart requirements in KRS 403.170 should be applied to legal separation as well as to marriage dissolution. KRS 403.180, permitting the use of a separation agreement, speaks of an agreement "attendant" on separation. Case law interpretation has generally required that parties entering into a separation agreement actually separate within a reasonable period thereafter. The living apart requirements of KRS 403.170 enforce this general rule. Simply put, you cannot live together.

Under KRS 403.170, no decree may be entered until the parties have lived apart for sixty days. This rule is both a statutory cooling-off period and a requirement that the parties actually cease sexual cohabitation. The waiting period should be applied in legal separation cases because no decision to alter a marital relationship significantly should be made precipitously.

The reason for all of these notifications is to warn you how difficult it would make things if starts making these kind of allegations.

A Decree of Legal Separation is distinct from a Decree of Dissolution on several critical points:

• You and are not divorced; technically, you are "separated", but still married.

• Neither of you may remarry until the divorce (or "dissolution") itself is final.

Legal Separation Agreements Must Coincide Closely with Actual Separation

As stated above, KRS 403.180 permits the parties to make separation agreements "attendant" on separation. The statute repeats a long-standing Kentucky rule. Hoskins v. Hoskins, 201 Ky. 208, 256 S.W.1 (1923), noted that when the parties were already separated or were about to separate, agreements that were otherwise fair would be upheld by the Court. The Court also stated that agreements made with the prospect of future separation in mind, but while the parties were living together amicably, were void. Preventing the parties from settling their rights on divorce was believed to prevent divorce. Agreements made too far in anticipation of marital difficulty were thought to simplify divorce. Such agreements were against public policy.

The rule requiring that a separation agreement must coincide with the parties' actual separation lives on because of the statutory language.

You were separated before suit was filed but, as you caught her coming off the plane, not before, but rather contemporaneous with the execution of the first agreement.

More recent acceptance of antenuptial agreements to take effect on divorce might allow some agreements that were drafted substantially before separation to pass muster. However, there is always the possibility that courts will apply the disclosure requirement to those agreements that it views as antenuptial or postnuptial agreements. KRS 403.180 does not include a statutory disclosure requirement, although one might be implied under the unconscionability standard.

Converting a Legal Separation into a Divorce

You must wait a minimum of 365 days after the Decree of Legal Separation is entered before it can be converted into a Decree of Dissolution of Marriage.

KRS 403.230 implies that when the legal separation is converted to a divorce, no further hearing on irretrievable breakdown or the agreement's fairness is necessary and states that the decree may be converted to a divorce decree on one party's request. A party wishing to convert a legal separation to a divorce may do so by a motion in the original action. However, KRS 403.230 does not preclude the necessity for a court hearing if the other party seeks modification of the agreement's terms. The point is, "Do not win the lottery before the expiration of one year as we could have litigation even though we should win!"

During this 1-year interim period, you must be mindful that there are myriad problems which can arise:

Effect of Parties' Reconciliation on Legal Separation

Reconciliation and/or resumption of marital relations between you and can result in changing your "legally separated" status and risks nullification of the legal separation agreement and its amendment which we worked so hard to create.

The parties' reconciliation may abrogate the agreement.  [Peterson v. Peterson, 583 S.W.2d 707 (Ky.App. 1979) (no reconciliation proven); Gordon v. Gordon, 335 S.W.2d 561 (Ky. 1960) (reconciliation does not abrogate agreement); Gardner v. Gardner, 280 S.W.2d 198 (Ky. 1955) (reconciliation abrogates provision that wife will not claim alimony).]  The rule has developed in cases involving actual but not legal separation. Again, KRS 403.230 provides for converting a decree of legal separation into a marriage dissolution decree. However, no statutory provision covers the opposite situation. The statute does not specifically cover the instance in which legally separated parties reconcile. The absence of statutory direction leaves unanswered questions. May legally separated persons ignore the judgment of legal separation and reconcile? What is the effect of reconciliation? Some conclusions can be drawn by contrasting legal separation and divorce from bed and board, which is distinct from straight-forward divorce (i.e., dissolution).

Mutual Rescission

KRS 403.050 provides for a bed and board divorce. A divorce from bed and board does not authorize remarriage, nor does it destroy spousal inheritance rights. KRS 403.042 specifically provides for the annulment of a divorce from bed and board.

In Cecil v. Farmer's National Bank, 245 S.W.2d 430 (Ky. 1951), the Kentucky Court of Appeals held that the parties' reconciliation did not annul a judgment of divorce from bed and board. The court stated that although the husband and wife had reconciled and lived together after a six-month separation, this private action was not sufficient to annul the divorce. However, the appellate court also ruled that failure to annul the divorce from bed and board did not prevent the survivor from proving mutual rescission of the separation agreement. It could be that you are legally separated, but such conduct rescinded the agreements.

Courts concerned with reconciliation after legal separation may following the Cecil analysis distinguishing the judgment's annulment from the agreement's abrogation. However, KRS 403.180(4)(a) permits the incorporation of the agreement into the judgment. This section of the statute may make the Cecil distinction difficult to apply as the agreement is both a judgment and a contract. Legal separation, unlike divorce from bed and board, has no statutory annulment procedure. The absence of that procedure should permit the parties' reconciliation to abrogate an agreement incorporated into a judgment.

Warning!

Simply put, do not resume cohabitation with unless you wish to do so at great peril to the current agreement. Also, be aware: If you reconciled, any and all of your spouse's past egregious behavior may be legally forgiven pursuant to a pre-no-fault doctrine called "condonation". If people takes their misbehaving spouses back, the court may consider past conduct irrelevant.

Proving Reconciliation

A threshold question in many cases is whether the parties actually reconciled. Most authorities agree reconciliation occurs only if the parties resume genuine cohabitation. Whalen v. Whalen, 581 S.W.2d 578 (Ky.App. 1979). In Peterson, supra, the husband alleged that a subsequent reconciliation destroyed a prior separation agreement. However, the court found that his testimony regarding intermittent sexual relations and his own unilateral desire for reconciliation were insufficient to support reconciliation. The husband admitted that his wife had rebuffed his attempts at reconciliation. The appellate court also recognized that trial reconciliations occur where the parties resume their relationship but intend to decide whether to reconcile permanently at a later date. Again, simply put, "This is all very dangerous."

Peterson makes clear that the key to reconciliation is the intention of both parties to resume the marital relationship. The parties' acts are usually treated as the best evidence of their intent. When the alleged reconciliation is short or is admittedly one-sided, it is not treated as an actual resumption of married cohabitation. Even so, "Watch out."

Impact of Reconciliation on the Legal Separation Agreement

Whether reconciliation nullifies the parties' prior separation agreement depends on the parties' intentions. In Hall v. Hall, 328 S.W.2d 541 (Ky. 1959), the parties reconciled after a three-week separation. Prior to the separation they executed an agreement settling their interests in property, and two years later the husband died intestate. The husband's son by a prior marriage argued that the widow was entitled only to the property allocated to her under the agreement, while the widow claimed her share of the estate as a surviving spouse. The Court held that the agreement had been abrogated by the reconciliation. The court's opinion was strongly influenced by the parties' joint purchase of real estate after reconciliation. Third-party testimony regarding the husband's attitude toward the reconciliation was also important. Friends testified that the husband had said the separation was over and that the parties were "back together".

Executory Provisions

In some cases, courts have distinguished between those portions of the decree that have been executed and those that are executory. In Goodaker v. Littell, 314 S.W.2d 539 (Ky. 1958), the parties reconciled after the husband conveyed to wife the marital home, an adjoining lot, and the household furnishings. In return, she relinquished her dower rights in other property. The parties resumed cohabitation and seven years later the husband died. The widow argued that her husband had orally promised her that she would have her dower rights if she returned to him. The appellate court denied the wife her dower rights. It held that the executed portions of the agreement were not nullified by resumption of cohabitation. The court concluded that the parties intended to continue the agreement's executed portions because the wife never deeded back property she received under the agreement.

Similarly, in Hartley v. Hartley, 305 Ky. 350, 203 S.W.2d 770 (1947), the Court found that the parties, who had separated and reconciled several times, intended that their reconciliation not affect their prior agreement. The Court held that the agreement demonstrated their intent to permanently settle their property rights. Consequently, property conveyed to the wife pursuant to the agreement remained hers even after reconciliation.

In Gardner v. Gardner, 280 S.W.2d 198 (Ky. 1955), the appellate court held that reconciliation abrogated the agreement's provision that the wife would not seek alimony. The court relied on the executory nature of this portion of the contract.

Obviously, the above cases are old and pre-no-fault; however, we note they are correct contract law.

Underlying all judicial discussions of executed and executory portions of the contract is a search for the parties' intent. The labels "executed" and "executory" are appellate court conclusions that support the interpretation for the parties' intent chosen by the court. In addition, examinations of party intent are subtle excursions into an agreement's general fairness. Thus, the court must address two questions. First, the court must determine the effect intended by the parties. Second, the court must determine whether that effect is fair under the circumstances. Gordon, supra demonstrates the willingness of appellate courts to include fairness considerations. In that case, the parties separated because of the husband's attentions to another woman. Later they reconciled, and the wife permitted money allocated to her under the property settlement to be used for the purchase of a farm. The trial court found that the parties reconciled only because the husband promised to discontinue his relationship with the other woman and also found that he failed to do so. The appellate court held that the wife had not relinquished ownership of the funds because the husband had not kept his promise. Because the husband had actually executed the portion of the separation agreement requiring payment of the money to the wife, the court could use the executed/executory distinction to reach what was really an issue of fairness.

When Gordon was decided, Kentucky courts did not recognize the existence of marital property. KRS 403.190 now recognizes two categories of property: marital and non-marital, providing that property acquired after a decree of legal separation is non-marital property. The adoption of KRS 403.180 (recognizing legal separation) and KRS 403.190 (recognizing marital and non-marital property) does not preclude an analysis similar to that used in Gordon. Suppose that one spouse is given a $2,000 award under an agreement incorporated into a decree of legal separation. The parties later reconcile and that spouse contributes the $2,000 to purchase an asset. If the reconciliation does not last, the spouse who contributed the $2,000 may claim in the subsequent marriage dissolution (i.e., divorce one year later) that the money was traceable to her non-marital property that should be assigned to her. If the reconciliation abrogates the legal separation, the property may be treated as wholly marital. If the agreement is not abrogated, the contributor spouse may have a claim to non-marital property.

If no decree of legal separation is ever entered, the spouse advocating the enforcement of a separation agreement is simply arguing that the parties' prior division of marital property should be enforced. The entry of the legal separation decree, however, may give a party the ability to argue for allocation of non-marital property. At bottom, however, the presence of non-marital assets depends on the reconciliation's effect, just as it did in Gordon.

Enforcement of Decree of Legal Separation

Unless the separation agreement prohibits the court from doing so, the court may set out the agreement in the decree for legal separation or incorporate it by reference. If the parties do not wish to incorporate the agreement or set out its terms in the decree, the court may simply refer to the agreement and state that its terms are not unconscionable. In most cases the better practice requires incorporation or setting out the agreement's terms. Again, please note this treatment makes the agreement part of the court's judgment. The agreement is then enforceable both as a contract and as a judgment. The importance of enforcement as a judgment lies in the availability of interstate enforcement on the children and of the contempt remedy. If the agreement is not enforceable as a judgment, it is not entitled to full faith and credit in other states. Even though out-of-state courts may require some action to domesticate a judgment, the time and expense involved are likely to be less than those involved in the pursuit of contractual remedies available when the agreement is not part of the decree.

Legal Separation Agreements Must be Found Not Unconscionable

KRS 403.180(2) requires that a trial court monitor separation agreements, enforcing only those that are found by the court not to be unconscionable. The Kentucky Supreme Court has granted wide latitude to trial courts making an unconscionability evaluation. If a trial court finds, after a review of the parties' economic circumstances and other relevant evidence, that the agreement is fundamentally unfair, it may adjudicate the case as if there had been no agreement.

The Supreme Court concluded unconscionability in Schraberg v. Schraberg, 939 S.W.2d 330 (Ky. 1997), a case in which the husband, who had a pre-tax income of approximately $200,000 per year, had agreed to pay $8,000 per month in child support as well as $5,500 per month in maintenance. The Schraberg parties had been married for 17 years and had five minor children. Obviously, this was unconscionable as after child and spousal support and taxes, he was essentially without money to live.

The Court noted that the requirement for an unconscionability examination was designed to protect parties from "their own irresponsible agreements". It distinguished between other grounds for striking down separation agreements, such as fraud, duress, coercion, or mental instability, and the problem of unconscionability. The majority held that the test for unconscionability was "whether the agreement was fundamentally unfair." It mentioned as the most important factor the relationship between the husband's gross income and the payments that the agreement required him to make, but it also stressed that the trial court had found the agreement to be unconscionable.

A concurring opinion by Justice Cooper argued that unconscionability should not be determined merely by a comparison of the assets awarded and the total estate. He said that there might be cases in which the reasons for the imbalance would be acceptable because one of the parties would have gained some intangible goal through the agreement. He gave as examples cases in which custody battles were avoided, in which arrangements were made quickly so that one party could remarry, and in which one party's reasons for entering the agreement were cathartic.

Schraberg appears to modify the impact of Peterson, supra. Although both cases support trial court discretion, there is very little difference in the economic impact on the obligors involved. The Peterson husband had also agreed to pay a high percentage of his earnings to his former wife. The Peterson rule that a bad bargain is not sufficient to permit a finding of unconscionability will have to be restated to take account of Schraberg. The new rule seems to be that a harsh bargain, when coupled with other relevant evidence, is sufficient to permit a trial court to find that a separation agreement is unconscionable.

Schraberg leaves intact a party's ability to claim that the agreement must be overturned because it is infected with fraud or overreaching. In two cases the Kentucky Court of Appeals has found that agreements based on misrepresentation by one of the parties were unconscionable. In Burke v. Sexton, 814 S.W.2d 290 (Ky.App. 1991), the court found that the wife was entitled to reopen a divorce judgment in which the property settlement agreement had failed to dispose of the husband's pension. The court cited overreaching by the husband as well as his behavior that caused the wife to lose the right to contest the initial agreement. In Rupley v. Rupley, 776 S.W.2d 849 (Ky.App. 1989), the same court held that the husband's representation that a marital corporation was of no value was some evidence of overreaching. The Rupley court also relied on the lopsided nature of the agreement to find it unconscionable.

Note: The legal definition of the word "separation" also refers to the date that one party left the marital home and took up residence elsewhere. A "separation" can include married parties living in the same house, so long as they are not engaging in sexual intercourse with each other. The resumption of sexual relations between married parties during divorce proceedings can require them to recommence the 60-day waiting period generally required before official dissolution of a marriage. [KRS 403.170(1):  "No decree shall be entered until the parties have lived apart for 60 days. Living apart shall include living under the same roof without sexual cohabitation."]