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Separation Agreement

When you are dissolving your marriage, they are many different ways that the legal relationship might end. More often than not, an Agreement is reached detailing the conclusion of your legal relationship. That document is then filed with Family Court. A Family Court Judge will scrutinize your Separation Agreement (also called Property Settlement Agreement or Marital Settlement Agreement) to insure that is it “not unconscionable” before making that Agreement an Order of the Family Court.

Kentucky Revised Statute (KRS) 403.180 controls the manner in which Family Court must address a Marital Settlement Agreement. First, parties are encouraged to enter into agreements, it being reasonable to assume that people are more like to adhere to and be satisfied with an agreement they author, rather than a resolution dictated by a Family Court Judge. Specifically, “…the parties may enter into a written separation agreement containing provisions for maintenance of either of them, disposition of any property owned by either of them, and custody, support and visitation of their children.”  KRS 403.180(1). Although not specified, the Agreement may also make arrangements regarding payment of fees and costs.

Once you reach a Property Settlement Agreement, the terms MAY be binding on Family Court.  KRS 403.180(2). You should be able to tell that “may” is the important word. Your Family Court Judge must examine the terms of your Separation Agreement and find, “…after considering the economic circumstances of the parties and any other relevant evidence produced by the parties…that the separation agreement is unconscionable.”  KRS 403.180(2).  In other words, if the Separation Agreement is unconscionable (read “manifestly unfair and unjust”) to either party, it shall not be enforced.

If your Family Court Judge finds your Separation Agreement to be unconscionable, then he or she “…may request the parties to submit a revised separation agreement or may make orders for the disposition of property, support, and maintenance.” KRS 403.180(3). In other words, it is in everyone’s best interest to be reasonable when preparing a Agreement. I have been a party to Separation Agreements that, on their face, appeared to be very lopsided, but the parties were prepared to explain to the Family Court Judge the reasoning behind their agreement.  The Family Court Judge then accepted the parties’ reasoning.

A Separation Agreement is a form of a contract. Contracts are not Court Orders.  So, how does your Agreement become enforceable and meaningful in Family Court?  Once your Family Court Judged finds the Separation Agreement to be “not unconscionable”, then “…its terms shall be set forth verbatim or incorporated by reference in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or…the decree shall identify the separation agreement and state that the court has found the terms not unconscionable.” KRS 403.180(4).

Once your Separation Agreement becomes a Court Order, either by incorporation, reference or duplication in the Divorce Decree, then Family Court has numerous enforcement options.  Your Family Court Judge may exercise “…all remedies available for enforcement of a judgment, including contempt…” and/or enforce the Agreement “…as contract terms.” KRS 403.180(5). The contempt sanctions could include incarceration. Do not enter into a Separation Agreement lightly or without good advice.

Finally, you may agree that your Separation Agreement is not modifiable by either party or Family Court. KRS 403.180(6). However, you may not agreement that “…terms concerning the support, custody, or visitation of children…” are not modifiable. KRS 403.180(6). If there is no agreement about whether your Separation Agreement may be modified, then any change to your Divorce Decree changes the terms of your Separation Agreement. KRS 403.180(6).

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