Can I claim that my spouse is at fault for our divorce or can my spouse claim that I am the reason for divorce?

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 a 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.