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The kinds of domestic
relations (family law) actions that can be filed in Kansas depend upon
whether the relationship involved is “marital” or “non-marital.”
Marital
Relationships:
A
“marital” relationship is a “marriage.” A “marriage” can be “licensed” or
“common law.”
A
“licensed” marriage is one in which the parties obtained a marriage license
from the state and were married as provided by the laws of the place where
they were married.
A
“common law” marriage is one in which the parties became married under
certain “common law” rules. Not all states allow people to become married
at “common law” in that state; however, every state recognizes common law
marriage entered in another state and divorces couples who are married at common
law in a State that recognizes common law marriages as valid.
If a
couple is married, whether by license or at common law, they can only
divorce by court order. There is no such thing as a “common law divorce.”
Three
different kinds of domestic relations actions exist effecting the marriage
relationship in Kansas – divorce, annulment, and separate maintenance. Each
of these types of marital action effects the couple’s marital status in a
different way.
Divorce. The first kind of action is the
most commonly known. It is the "divorce."
A
divorce requests that the marriage of the parties to the action be
dissolved. A divorce presumes that the marriage of the parties is valid and
that there will be no marital relationship between the parties after the
requested order is granted. This action also requests that the court make
orders regarding property and debt division, child custody, residency,
parenting time, third party visitation and child and spousal support
issues, if those are appropriately before the Court.
Separate
maintenance. The
second kind of action is a "separate maintenance" action.
The
“separate maintenance” action is a form of what is commonly known as a
"legal separation." A separate maintenance action does not
dissolve the parties' marriage, but does request that the court issue
various orders regarding property and debt division, child custody,
visitation and support and spousal support issues. The separate maintenance
action is basically a holdover from earlier times when divorces were more
difficult to obtain. It is not commonly filed and may increase costs. If a
separate maintenance action is filed by one party and the other party requests
a divorce, the court must grant the divorce rather than the separate
maintenance request.
Annulment. The third kind of domestic
relations action is an "annulment."
An
annulment can be requested no matter how long or short the couple is
married, as long as the requirements of the statute are met to obtain the
annulment. An annulment may be obtained if the marriage is a "void"
marriage or a"voidable" marriage.
A “void” marriage is a marriage prohibited by the laws of the state in
which the couple married. Examples are marriages between a couple too
closely related (first cousins or closer in Kansas) and marriage between
two people when one of them is still married to another person. If a
marriage is “void,” Kansas courts must grant a requested annulment.
A “voidable”
marriage is a marriage that may be invalidated by one of the parties to the
marriage because of some “material fact” that existed when the couple
married. Examples of “voidable” marriages are a marriage in which one (or
both) parties did not know about a “material fact” that existed when they
entered into the marriage that would have led them not to marry if that
fact had been known (called a “mistake of fact”) or when one party was
caused to enter the marriage by a fraudulent representation. If a marriage
is “voidable,” Kansas courts may, but are not required to, grant a
requested annulment.
Non-Marital
Relationships:
Although
an unmarried couple cannot obtain a “divorce,” Kansas law provides that the
courts may determine the equitable division of property between the
cohabitants if they cannot agree on the way they should divide the property
they accumulated.
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