What is “separate maintenance?”

A “separate maintenance” action is a kind of court action filed between married persons. Many people know the action by its more common name, “legal separation.”

A “separate maintenance” action does not dissolve the parties’ marriage. A “separate maintenance” action does not “divorce” the married parties. A “separate maintenance” action does request that the court issue orders about the rights that each party to the marriage has regarding:

  • property and debt
  • children, including child custody, child support, residency, parenting time, and third party visitation
  • spousal support and maintenance (previously known as “alimony”)

In essence, a “separate maintenance” action asks the court to do everything it would be in a divorce – without the divorce.

A “separate maintenance” action is basically a holdover from earlier times in history when divorces were difficult to obtain. Separate maintenance cases are not commonly filed. And filing a separate maintenance action instead of a divorce may increase costs. If one spouse files a separate maintenance action, the other spouse can ask for a divorce instead. If a divorce is requested by either spouse, the court must grant the divorce rather than grant the separate maintenance request.

But there are reasons to file for “separate maintenance”:

1. If the married parties have not lived in Kansas for at least 60 days.

Kansas law requires that to file for divorce, the filing party or spouse must have resided in the state for at least 60 days. But sometimes couples need court intervention before either party has lived in the state for that long; the separate maintenance action is the answer.

2. If the married parties do not want to dissolve their marriage, but want to have an enforceable order governing their rights, duties, responsibilities, and obligations to each other.

A separate maintenance action is basically a request for the issuance of temporary orders. But the temporary orders are enforceable – just as a final order – until the parties reconcile and dismiss the separate maintenance action or obtain a final divorce. Although parties can enter into a “contractual separation,” those agreements are not valid and binding unless approved by the court as “fair and reasonable.” The decree of separate maintenance entered after a judge has heard and approved the parties’ agreements provides that protection.