Kentucky Separation Agreement Law

Divorce – Separation Agreements – Kentucky

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.”


Inside Kentucky Separation Agreement Law