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The “short” answer is, “Yes”; but it is rarely a
good idea.
Kansas law provides that a divorce can be granted for “incompatibility” or “fault.”
“Incompatibility” is a “no fault” ground for
divorce. In other words, it is not necessary to allege or prove that either
spouse was at “fault” for the divorce – such as that there existed
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 law provides specific reasons
for which someone can ask that their divorce be granted
on “fault” grounds. If a divorce petition alleges “fault” grounds, the Kansas
statutes require that these grounds be stated in the generic statutory form
(such as "failure to perform a material marital duty"), rather
than detailing out what is alleged to have occurred. If details are
included, the petition is not allowed and will be
stricken if filed.
Many people want to file for divorce claiming
that they did not cause their divorce, and that
the other person was at “fault” for or did something that caused their
divorce. This usually means that spouse has not come to terms with the
emotional effects of the marriage breakdown.
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 spouse alleging “fault”
in a divorce is to increase the costs in the case, slow down the process,
polarize the spouses and enmesh them in their arguments and disagreements, rather
than leading to an quick or easy determination of any issues in the case. The
assertion of “fault” grounds in a divorce usually increases the cost of
divorce anywhere from three to ten times (or more) than a divorce in which the
ground for divorce is “incompatibility.”
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.
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