- Legal Overview
- Divorce Process
- Residency Requirements
- Grounds for Divorce
- Division of Property
- Spousal Support
- Child Custody
- Child Support
To file for divorce in Kansas, you must be a resident of the state for at least sixty (60) days prior to the date of filing. There are two grounds upon which you can base your request for a divorce in Kansas: 1) you may request a divorce based upon incompatibility of the spouses and/or 2) you may a request a divorce based upon a failure to perform a material marital duty or obligation. Read our detailed legal summary of Kansas divorce law which includes information about grounds, residency, child custody, child support, alimony, property, settlement agreements and annulments.
After a petition for divorce is filed, Kansas law permits a party to ask the court to order marriage counseling. A judge may determine that there is a chance of reconciliation and may order mandatory mediation or counseling for the spouses, however, practically speaking, such requests are rarely granted if the other party strenuously objects to such counseling.
Unlike a divorce that ends a recognized, valid, marriage, an annulment is a legal decree that proclaims a marriage to be void or invalid. Annulments are granted only in limited situations and cannot be granted merely because the marriage is of short duration. Annulments obtained through the courts are not the same as annulments which may be granted through a religious organization.
A settlement agreement is a written contract between the parties that sets forth their rights, duties and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney’s fees, custody of their children and child support. Such agreements are encouraged since they may amicably settle the rights of the husband and wife in the estate and property of the other and obviate the need for a trial. The court may approve or reject a marital settlement agreement of the spouses. Standard financial disclosure forms are required to be filed prior to the approval of an agreement.
Before you file for divorce in Kansas, you should determine whether you meet the state’s residency requirements. In order to file a Petition for Divorce, you must be a resident of Kansas for at least sixty (60) days prior to the date of filing. The papers for divorce must also be filed in a county where either you or your spouse reside.
Grounds for Divorce
There are two possible grounds available to those seeking divorce in Kansas: a divorce based on incompatibility of the spouses and/or a divorce based upon failure to perform a material marital duty or obligation. A divorce based on incompatibility of the spouses is the most common ground or reason for requesting a divorce. Although incompatibility may have a different meaning for everyone, ultimately the claim means there is no reasonable hope that the marriage can continue.
To receive a court-approved divorce it is not necessary to show that either one of the parties was at fault in the decline of the marriage. The only thing that is necessary to prove is that there has been a breakdown in the marital relationship to the extent that the objects and goals of marriage have been destroyed and that no reasonable possibility remains that the marriage can be saved. Only one person needs to believe that the parties are incompatible for the divorce to be granted. In other words, one spouse can obtain a divorce even if the other spouse does not want the divorce.
Generally, Kansas courts do not take into consideration the misconduct or failure to perform a marital duty into consideration when making a division of assets and debts, awarding maintenance or considering child custody. In rare cases, the assignment of financial fault may make a difference in terms of a court’s final determination of the division of property.
Division of Property
Kansas law provides for the “equitable” distribution of all property of the marriage at the time of the final divorce between the parties. “Marital Property” is defined as all jointly owned property and all other property, other than separate property, acquired by either or both of the parties during the marriage and up to the time of the final separation of the parties. “Separate Property” is property owned by one party at the time of the marriage or inherited property or gifts to one party from a third person and maintained as separate property. It is important to note that Courts in Kansas have jurisdiction to divide all property of the marriage, whether marital or separate. As a general rule, however, the Courts will attempt to restore separate property to the original owner or done where possible.
In making its equitable distribution awards the courts are not only authorized to make monetary awards to one of the parties, but may also divide or order sold or transfer property to one of the parties. Although common, the court is not required to divide the marital property of the parties on an equal basis but may instead consider various factors listed in the Equitable Distribution Statute, including the relative monetary and non-monetary contributions of each of the parties to the well being of the family and to the acquisition and care of the marital property. Pensions and retirement plans are subject to the Equitable Distribution Statute to the extent that those assets were accumulated during the marriage of the parties.
Spousal support in Kansas is referred to as maintenance and when awarded, may be periodic and/or in a lump sum. Many counties in Kansas have guideline formulas to calculate the amount and duration of maintenance. Kansas statutes require the court to consider the respective ages of the parties, assets and earning potential of the parties and the duration and history during the marriage. Spousal support is not awarded to punish a guilty spouse; the stated purpose is to lessen the financial impact of divorce on the other spouse. The court’s power to award maintenance is limited to a maximum of 121 months with some rare exceptions.
This is the most crucial issue in many divorces. In determining the custody of minor (under eighteen) children, the court is guided by one standard–the best interests of the child. Custody will not be given to a parent as a reward or as punishment to a “guilty” parent but rather to the one most adaptable to the task of caring for the child and able to control and direct the child.
Other factors considered may include the age of the parent and child, the physical and mental condition of the parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, the home where the child will live and the child’s wishes if the child is of sufficient age, intelligence and maturity to make such a decision. Custody may be changed if there is a material change in circumstances.
The court will normally set custody and parenting schedules if the parents cannot voluntarily agree upon satisfactory arrangements. An important factor to the court in most custody cases is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children’s lives.
Normally the party not having custody will be called upon to contribute to the support of the minor child. This could be an obligation of the mother as well as the father, or both, if a third person has custody of the child. The court is guided by the needs of the child and the ability of the supporting parent or parents to pay. The use of the state Child Support Guidelines provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in rare circumstances. The award is subject to change so long as the obligation to support remains. It may be increased or decreased if a material change occurs in the circumstances of either or both of the parents of the child.
The obligation to pay child support continues until the child reaches the age of eighteen (18) subject to a few exceptions, the most common being that the child remains enrolled in high school at the time he/she turns eighteen (18) in which case child support shall continue until the child has graduated from high school.