Under Kentucky law, spouses who are not living together as “husband and wife” are considered to be “separated”. Spouses must be separated for a period of at least 60 days before parties can be divorced from each other. Husband and wife can continue living in the same home and still be considered to be separated as long as they do not have sexual relations with each other. Due to economics, many people do just that.

“Legal separation” is a very specific legal term that applies to a very unique situation. For parties to be legally separated, which is not the same thing as being separated, the parties must take certain steps. One of the parties must file a petition, asking the court for a legal separation instead of asking the court for a divorce. Then, usually, the parties come up with a legal separation agreement, which addresses all the same issues that a divorce agreement would address. Once that document is signed, and certain other steps are taken, then the parties are legally separated and must remain in that state for a year before either side can seek to change the separation into a divorce. Even being aware of this option, most people end up divorcing.

There are several reasons why parties might decide to seek a legal separation instead of a divorce. One reason is religious. A Catholic party might be seeking an annulment and want to delay any divorce until the annulment is granted.

Another reason would be due to health concerns. While the Affordable Care Act (“Obamacare”) might have eliminated issues with pre-existing conditions and such, some parties might decide that it makes more sense, or is easier or less costly to maintain the current health insurance plan.

Financial reasons can also come into play. If the parties have been married for at least 10 years, then one spouse might be able to collect Social Security based on the other spouse’s income, rather than his or her own. Certain military benefits kick in at 10 years of marriage and 20 years of marriage. If the parties are close to either milestone, a legal separation might be wise.

The parties might not be sure that they want to divorce. A legal separation might buy them the time to slow down and really consider the next step.
The purpose of this material is to give just a basic overview of the potential issues to be aware of with respect to separation and legal separation. You should discuss any questions you have with an attorney.