Marital Legal Separation and Property Settlement Agreement Minor Children no Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all-inclusive discussion of the law of separation agreements in Kentucky, but
does include basic and other provisions.
General Summary: Separation agreements are encouraged
in order to promote the amicable settlement of disputes between the marital
parties. Agreements may be entered into before a divorce is filed
to be effective immediately. Detailed information regarding the identity,
value, and allocation of specific iterms of property should be included
in the agreement. With the exception of provisions for the custody,
support, or education of the minor children, a property settlement agreement
incorporated into a final dissolution decree and order may not be
modified unless the agreement is found by the court to be unconscionable.
Kentucky Revised statutes
TITLE XXXV - DOMESTIC RELATIONS
CHAPTER 403 DISSOLUTION OF MARRIAGE -- CHILD CUSTODY
Separation agreement -- Court may find unconscionable:
(1) To promote amicable settlement of disputes between
parties to a marriage attendant upon their separation or the dissolution
of their marriage, 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.
(2) In a proceeding for dissolution of marriage or for legal separation,
the terms of the separation agreement, except those providing for the custody,
support, and visitation of children, are binding upon the court unless
it finds, after considering the economic circumstances of the parties and
any other relevant evidence produced by the parties, on their own motion
or on request of the court, that the separation agreement is unconscionable.
(3) If the court finds the separation agreement unconscionable,
it may request the parties to submit a revised separation agreement or
may make orders for the disposition of property, support, and maintenance.
(4) If the court finds that the separation agreement is not unconscionable
as to support, maintenance, and property:
(a) Unless the separation agreement provides to the contrary,
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
(b) If the separation agreement provides that its terms shall not
be set forth in the decree, the decree shall identify the separation agreement
and state that the court has found the terms not unconscionable.
(5) Terms of the agreement set forth in the decree are enforceable
by all remedies available for enforcement of a judgment, including contempt,
and are enforceable as contract terms.
(6) Except for terms concerning the support, custody, or visitation
of children, the decree may expressly preclude or limit modification of
terms if the separation agreement so provides. Otherwise, terms of a separation
agreement are automatically modified by modification of the decree. Section
403.180
Case Law:
In general, this statute [K.R.S. Section 403.180]
invites parties to wind-up their own affairs by entering into a comprehensive
agreement.
However, in recognition of the intimate nature of the relationship and
the ability of a strong and persistent spouse to overwhelm the other spouse,
the statute broadly directs the trial court to review the agreement for
unconscionability. In effect, the law has established a measure of protection
for parties from their own irresponsible agreements. Upon a determination
of unconscionability, the trial court may request submission of a revised
agreement or make its own determination as to disposition of property,
support, and maintenance. Shraberg v. Shraberg, 939 S.W.2d 330 (1997)
Rupley v. Rupley, Ky.App., 776 S.W.2d 849 (1989), held that
fraud, duress, coercion and the like are not necessary prerequisites to
a finding of unconscionability under KRS 403.180. In McGowan v. McGowan,
Ky.App., 663 S.W.2d 219 (1983), the court articulated the grounds for invalidating
"separation agreements". The court said, "a separation agreement is unconscionable
and must be set aside if the court determines that it is manifestly unfair
and unreasonable."
