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Nelson & Booth
attorneys at law

Can I claim that the breakdown in my marriage was caused by the “fault” of my spouse?

Kansas statutes provide that divorce can be sought for either “incompatibility” or because of some specific “fault” ground set forth in the statute.

“Incompatibility” is a “no fault” ground for divorce. In other words, under the "no-fault divorce" system, it is not necessary to either allege or prove grounds for divorce, such as adultery, extreme cruelty, abandonment, physical abuse, or any other "fault" grounds, even though that conduct may have occurred. A person requesting divorce for “incompatibility” is entitled to the divorce.

Kansas statutes also provide that "fault" grounds can be alleged, although these grounds must be stated in the generic form as "failure to perform a material marital duty," or other statutory ground.

Assertion of fault grounds for divorce is typically not advisable and will usually not affect the trial court’s decision on any “ultimate” issue (i.e. division of property, award of spousal support or decision on child custody issues). Kansas appellate court cases state that trial courts cannot consider “fault” in making any decision in the divorce action, unless that ground has some specific relevance to the particular issue considered.

The usual effect of one party including allegations of fault in a divorce is to increase the ultimate cost of the case, slow the process, polarize the parties and enmesh the parties in their disputes rather than leading to an expeditious determination of the case. Assertion of “fault” grounds for divorce usually increased the expected cost of divorce anywhere from two to ten times as much as a divorce in which no “fault” grounds are claimed.

Notwithstanding this caveat, there may be some circumstances under which such "fault" grounds should be alleged. However, these situations are very rare and often raise more issues and anger than they are worth in benefit. You should discuss this issue with your attorney if you feel it may be applicable to your case.

If a divorce is requested on either the grounds of "incompatibility" or on a fault ground, the court is required to grant a divorce at the end of the case. Occasionally one spouse will oppose the divorce or say that they will not give the other spouse a divorce or state that the parties are not incompatible. While one spouse may object to the divorce, Kansas law requires that the court grant the divorce if it is ultimately requested by one of the parties. The parties involved do not have the power to "give" or "not give" a divorce. The same grounds for divorce are applicable to a petition for separate maintenance.

NELSON & BOOTH is a law firm engaged exclusively in a family law practice emphasizing complex domestic relations actions, including divorce and determination of parentage, property division, child custody, parenting time, spousal and child support and representation of parents in cases of international child abduction.

The attorneys at NELSON & BOOTH are licensed to practice only in the
states of Kansas or Missouri.

E-mail: Ronald W. Nelson or Joseph W. Booth

nelson & booth

attorneys at law

Last updated 5/31/2005