Kentucky Legal Separations Overview
Kentucky law provides married couples with another option outside of divorce for when it makes sense to be legally separated from one another – that’s called "legal separation." Legal separation is an alternative way for couples to decide if they want to permanently end their marriage. Most often, when we represent a spouse in legal separation proceedings in Kentucky, the intent of the parties is to go through the process in a way that is as low-key, private, and inexpensive as possible.
For legal separation (sometimes called a "deed of separation") , a couple fill out a form with some basic information about their family and their marriage. One of the parties signs an affidavit. The parties have been living apart for at least 60 days. Sometimes, the couple has already been separated for over a year. However long the separation has lasted, the couple affirms in the legal separation documents that they intend for their separation to be permanent. There’s nothing else that you need to do up front.
Of course, if you have children, there’s probably already some conflict in your family life. You might want to put your property division and spousal support arrangement in writing to avoid future disputes or ambiguity, especially if you’re planning to relocate out of Kentucky.
Your Cost For General Filing Fees
Filing for a legal separation in Kentucky is generally not that expensive. The costs are reasonable when you consider that most people file for separation in Kentucky as an alternative to a divorce. There are court costs and mandatory fees that you need to consider when seeking a legal separation however.
There are two mandatory costs associated with starting your legal separation case in Kentucky. The first is filing fees. Regardless of whether you wish to pursue a divorce or legal separation, the filing fee for a Petition for Dissolution of Marriage in Kentucky is $145. You will also need to pay $65 for service of the Petition on your spouse by the sheriff. This is a mandatory fee.
If you are filing a Petition for Legal Separation first (as opposed to a Petition for Dissolution of Marriage), you will have to later pay the court $150 to convert your case to a divorce action (also known as a Petition for Dissolution of Marriage). You do not however have to pay a filing fee for both actions (the legal separation and the divorce) if both are filed during the same action – you will need to pay one or the other once, that includes when you ask the Court to change the case from a legal separation to a divorce.
There is also additional court costs that may be incurred in your separation case, but since most people do not know what action they may need to later take, this cost cannot be calculated at the onset. Those costs will depend on the additional actions taken in the case and the filing fees associated with those actions – such as deposition and hearings.
There are also costs associated with hiring your lawyer. The cost will vary based upon the rate charged by your attorney, how often billed (hourly or flat rate), and the stage of the action. Your attorney will generally front several costs while the case is pending, and then be repaid those costs when the case is resolved.
It is wise to review all costs associated with a separation and/or divorce action with your attorney before you file.
Lawyer Fees and Other Related Legal Charges
As with other areas of the law, hiring a lawyer to handle the Legal Separation may be one of your biggest costs when pursuing a legal separation. Generally speaking, the more complex the case and the longer it lasts, the higher the potential attorney fees to pursue one. Because of the adage that "time is money," the most improbable scenario is a legal separation where attorney fees are a fixed dollar amount. Most fees are set at a per hour rate based upon the lawyer’s experience. In this context, the complexity and length of the case can directly affect the attorney fees.
In a typical legal separation case where the parties are ready, willing and able to take advantage of the legal separation statute, content in pursuing a legal separation without the need for court hearings, and agreeable as to issues such as custody and parenting time, property division, child support, and debt assignment, many things can be accomplished via a single written agreement. In those circumstances, attorney fees can be kept to a minimum and the parties can typically complete the separation process on relatively short notice, in a matter of weeks. However, if the parties tend to disagree on one of those issues, or if other issues need to be addressed, attorney fees will increase substantially.
On the other end of the spectrum, sometimes parties disagree on whether the court has jurisdiction – or authority — to decide those issues. If that is likely, the parties may need to spend a full day in court litigating those issues. A lawyer involved in a trial-type hearing generally spends time preparing for the hearing by flagging documents and writing a trial brief. The trial brief is a written document where the lawyer sets forth in writing his or her position on the facts. The lawyer also needs to organize and present evidence in the form of witnesses who are ready to testify and exhibits admitted into evidence. The lawyer likely needs to prepare closing arguments that summarize their position and request some form of relief from the judge. Litigation of those types of cases can last half a day to a whole day.
For these reasons, parties may want to consider retaining a lawyer for the initial consultation to better understand the consequences of proceeding pro se, or without a lawyer. Referally of the case to a lawyer can hopefully limit the need for attorney fees, and the least expensive way to proceed.
How To Prepare For Extra Costs
In addition to filing fees, a legal separation in Kentucky often involves counseling and mediation. Counseling helps you and your spouse decide how to best keep emotional and financial matters in check during separation. Mediators, usually lawyers or financial professionals, help parties negotiate the settlement of financial and other matters. These outside services ensure fairness in negotiations. Neither parties are given legal advice by the counselor or mediator.
At the very least, you should expect to pay for the separation filing and any consultation services.
Counseling services may be required at the onset of proceedings to help the parties agree on matters of your separate lives and limited joint responsibilities. You can also attend family counseling at any time if there are problems with co-parenting after divorce. The court will not require you to attend counseling unless there are children involved that you both need to agree on for child support budgeting and custody arrangements.
Counseling could cost about $80-$120 per session and often includes evaluations and testing. Court-mandated counseling may include assessments and recommendations for co-parenting time and expense sharing. This service may be billed to each party or divided by agreement between the spouses.
Mediation usually costs between $100 and $250 per hour. It is sometimes ordered by the court to ensure effective negotiation. If you prefer mediation, agree on the costs and process with your spouse and move forward out of court. Your attorney will advise you on this service.
Cost Comparisons: Analyzing The Separation Vs Divorce Financial Burden
Legal separation in Kentucky can be a less expensive alternative to divorce, depending on the factors involved in your case. For instance:
Differences in Costs
- The grounds for separation are significantly less costly than those for a divorce. When you file for an absolute divorce, you must provide a declaration of grounds under which you are seeking a divorce. In Kentucky, there are 11 statutory grounds for divorce. If you’re filing a complaint for divorce, you must cite one of the statutory grounds. That paperwork must be served on your spouse, and within 20 days, they will have had the opportunity to respond.
- If you and your spouse were not married for at least 60 days before filing the paperwork, your petition must be served in person and you cannot obtain a default judgment if they do not respond within the time allotted. You must bring proof to the court that your spouse has been served and has neglected to respond within 20 days.
- When you file for separation , you don’t have to state grounds, nor do you have to serve it in person on your spouse, so the same expenses do not apply.
- The costs of obtaining an attorney to assist with a legal separation is usually less compared to a divorce because they do not have as much paperwork to file or review.
- The costs associated with having a judge sign off on the separation order are less than the costs associated with finalizing a divorce.
- If both parties file for legal separation at the same time, the counsel fees are usually lower versus when one party would have to file a response to the other’s petition because only one petition is required to divide the property, debts and assets after the date of separation.
Employing a separation agreement, instead of filing for separation, can also save you money. An experienced family law attorney in Louisville will be able to walk you through the intricacies of legal separation so that you can decide the most cost-effective and appropriate choice for your situation.
How To Control Legal Expenses
Lawyers and judges often joke "the only winner in a divorce is the lawyers," and that is true whether you are dealing with litigation or mediation. Hiring a lawyer will always be expensive for the client. While clients should have attorneys represent them in all separation and divorce related negotiations or litigations, here are a few tips to help manage the costs of litigation:
- Hire an attorney who is responsive. I am sure you have heard horror stories about attorneys who never return phone calls or emails. It is so important to hire someone who takes the time to answer your questions if you need them. Some people promise me the world, but in the end, it is hard to even get a returned phone call or email. I have a client who was over-charged by more than double of what we typically charge and she didn’t even have to go to court or mediation. It’s vital to hire an attorney who communicates with you and is responsive.
- Don’t be afraid to ask questions. If a judge issues a ruling, don’t assume you understand it simply because your lawyer explained it to you. In fact, it is probably not necessary to know every aspect of that ruling. Your lawyer will know what is most important about the ruling to you personally and financially and will help you get that implemented. Your lawyer should be looking out for your best interests.
- Don’t get emotional about the process and your lawyer should keep your case out of the court system. Of course, I know that some of this is impossible because you are dealing with possibly the biggest loss that you have ever had. But if you believe you and your spouse can come to agreements through a court process, then you are wasting your time and your lawyer’s time, and your money. The Kentucky Court System is friendly to the mediation process and many of the counties I practice in require mediation prior to any trial. Mediation is always less expensive than trial.
- Always try to come to an agreement on your own. This is the best way not to spend the most money on attorneys. If you can come to an agreement alone, you should be able to use pro bono discovery. But if there is an uncooperative party, the court system does have options to help parties come to an agreement.
- Remember, even if litigation occurs, the judge can still encourage people to come to a mediated agreement.
- While some legal aid services are available in Kentucky, typically, legal aid services are not available to assist parties going through divorce. There may be limited services if you have been an innocent victim of domestic violence and are seeking a church-related organization.
- People often say judges do not like pro se parties, that the court system is not there to punish you, they are there to make sure you are treated fairly and the law is applied to your facts.
- Sometimes we get so caught up in winning, we forget what the most important issues are to us or our clients. For example, alimony is often not material in a marriage where both parties have substantial assets, one of which may be premarital property inheriting on both sides.
- Finally, the last tip I can give is if you want to save money, don’t hire your neighbor or cousin to represent you. I know they are cheap, but it is a complex area of the law that changes frequently.
Financial Planning For Your Separation In Kentucky
When considering legal separation in Kentucky, some of the issues that are most important are also the ones that are most commonly overlooked: the issues of the cost of the process and the cost of the legal services. The costs of the legal process are determined to a large extent by the level of coordination of the couple’s participation, and the extent to which the process is planned out and budgeted. Most of the cost and efforts that arise as concerns the divorce process can be managed, but ideally before the process starts. For example, many of the costs of the divorce process arise from the preparation of appropriate parenting plans, custody assessments, and financial expert followup . A couple that has already addressed these issues or already has an idea of what needs to be done almost always comes out with a minimized cost. And while retaining an attorney can be an expensive process when couples cannot agree, it is invariably cheaper than litigation when there is the ability to talk through the issues with an attorney. In essence, if the couple can cooperate and organize the issues and go into the divorce process knowing the costs and partners and advanced understanding of financial agreements, the costs/planning process of the marital dissolution can be much easier.