If you have been living in marriage for a period of 60 days within the State of Kansas, you are entitled to have your marriage dissolved by Kansas if you so petition. Most of Kansas divorces are initiated under "no fault" grounds or what Courts refer to as "incompatibility." Child custody issues involve separate jurisdictional grounds which can referenced in the Child Custody & Support
section of this site. Along with having your marriage dissolved, the Court will determine issues including property and debt allocation, spousal support/alimony, child custody and support.
The Court is supposed to make an equitable division of the marital assets, but this does not in any way mean an "equal" division of the marital assets. Kansas Courts will determine what should be designated as non-marital assets, and will distribute these items accordingly. This means that if a party accumulated property or debt before the marriage, the Court may order their reacquisition of the same property and debt. If there is an appreciation on property brought into the marriage, this value will often be divided between the parties at divorce. Property obtained as a result of inheritance or gift from outside of the marriage may also be considered a non-marital asset.
Kansas recognizes common law marriages. If you have been holding yourself out to the public as married even though there was no official ceremony, you may be considered married in Kansas. Common law marriages require a divorce for dissolution of the marriage.
The filing of a verified petition along with payment of the prescribed filing fee (currently $147.00) will commence a divorce action. Personal service upon the opposing party is required if you need the Court to make orders pertaining to child custody and property division. Service may be obtained by publication if you are unaware of the opposing party's whereabouts, however this may limit the Court from issuing orders over certain items.
Attorney's fees can be requested at the beginning of a divorce by a spouse who is not the primary provider to a marriage. If a Court determines this to be the case, often a Judge will order the primary provider to turn over a specific amount of funding so that the other party can afford proper legal representation.
An annulment of a marriage is requested when one party seeks to have their marriage determine to be invalid. If an annulment is granted, technically the parties were never married. A Court is still free to consider property allocation, debt allocation, child custody, and spousal support even if your marriage is annulled. Additionally, a person seeking an annulment must prove to the Court that there are grounds for one (fraud, mistake off fact, etc.).
Legal Separation/Separate Maintenance
The grounds for filing this action are the same as when filing for divorce. However, if you obtain a decree of separate maintenance form the Court, your marriage continues. All other issues normally determined in divorce may be decided with this action. You may ask the Court to separate property and debt, orders of child custody, and spousal support.
Judges often refer to a divorce filing as a "race to the courthouse." When filing for divorce in Kansas, the statutes entitle you to temporary court orders pending the outcome of the action. Since an action can last several months, these orders will determine how you can live your life for a very long time. Typically, temporary orders involve who can live in the marital home, who will drive what automobiles, and how other specific property will be dispersed while a divorce is pending. Additionally, the Court will make temporary orders of child custody and support. Whoever files a divorce action first will get the first opportunity to speak with the Judge and get their temporary orders signed. This doesn't mean that a person who gets sued for divorce will have to permanently live with these orders, but getting back into court to change them can be expensive and time-consuming.
Answer and Counterpetition
If you have been sued for divorce, a responsive pleading is due to the Court normally within 20 days of your having been served with process. Failure to file a timely answer may result in an admission of whatever is contained in the divorce petition, and a possible default judgment against you if you have not entered an appearance in the case. If you feel that you may be in danger of missing a deadline to file papers, consult with an attorney immediately and have them check with the County Clerk for your specific dates. You may also file a counterpetition for divorce when you submit your answer to the original petition.
Waiting Periods and Emergency Divorce
Generally, a person must wait 60 days after filing a petition for their divorce to be heard by the Court. However, Kansas will entertain emergency actions. If the parties can testify to a valid reason for needing an emergency divorce, judges have a wide range of discretion in allowing the parties to divorce before 60 days have elapsed.
What to Expect after Filing
The discovery process is normally what holds up divorce proceedings. You are entitled to get a very detailed accounting of financial and property information from an opposing party, as well as their opinions as to child custody. This is usually done with interrogatories and requests for the production of documents, however depositions of witnesses may be taken if necessary.
The parties may choose to develop a settlement agreement during this time. This agreement will encompass all issues in a divorce, including division of the marital assets, the award of spousal support/maintenance, child custody, and child support issues. If the agreement is fair and equitable, the court will approve and incorporate the same into the divorce decree after the statutory waiting period has run. Separation agreements are defined by Kansas law in K.S.A 6010 (b)(3). Matters settled by a settlement agreement incorporated in a divorce decree, other than matters pertaining to the legal custody, residency, visitation, parenting time, support or education of the minor children, shall not be subject to subsequent modification by the court unless the agreement provides for the modification or if the parties agree to it.
Also, while you wait for a divorce, the Court may ask certain parties to intervene and investigate your child custody situation. If there is custody battle, the Court will want to collect an unbiased report as to what custodial arrangement will be in the best interest of your children. Many Courts will also order the parties to engage in a mediation process to try and agree on at least some of their contested issues.
In the event of a situation where the Court feels your child needs representation during the action, the Court may appoint a Guardian ad litem to represent the child's interests. The cost of this attorney is normally incurred equally by the parties.
Any issues that remain unresolved between the parties will be tried to the Court. This is the opportunity for the parties to present their case before the Judge. In addition to evidence collected during the discovery process, the Court may hear evidence from expert witnesses regarding such issues as child custody and property valuation (home equity, 401k, pension plans, etc.). The Court will develop its final orders from this hearing.
Finality of a Divorce Decree and Appeal
After a decree of divorce is entered, you will still be prohibited by the Court from contracting into marriage with another until 30 days have elapsed. This period represents the time for which a party may appeal the decree of divorce in your case. If an appeal is successful, you may still be married and a subsequent marriage would be invalid. Also, you have a very limited time to ask the Court to reconsider its ruling. If you are unhappy with your decree of divorce and would like to see about changing it, contact an attorney immediately.
Kansas Divorce and Maintenance Statutes (K.S.A Chapter 60, Article 16)