No, and yes.

No, it does not matter who files the divorce because Kansas is a “no-fault” state. The Court does not consider who filed the divorce, and it doesn’t matter if one person files for divorce and the other doesn’t. In the end, you are still divorced. The Court can’t — and doesn’t — divorce you twice if both parties ask the Court for a divorce. Again, Kansas is a no-fault state, so the fact that the Court grants the divorce doesn’t mean that the person who didn’t file for divorce, didn’t want the divorce, or didn’t ask for a divorce is a bad person or anything else. It means a divorce was granted.

No, It also doesn’t matter who files first because the Court is going to divide the property, assets, and debt in the same way no matter who files the divorce action and no matter whether one or both spouses ask the Court for a divorce. Kansas is a no-fault state. The Court does not give more property or debt to the spouse who did not ask for a divorce.

And No, In most divorces, it doesn’t matter who files for divorce because the parties are either already separated they have talked about divorce for some time (and maybe already agreed on how to divide their property and debt).


Yes, it does matter in some ways because the person who files for divorce knows when the divorce will be filed (and the other spouse presumably does not know when the divorce will be filed). Or at least the person filing for divorce knows when that person’s lawyer will file the divorce petition.

Yes, it matters because the person who files for divorce can ask the Court for “ex parte temporary orders,” which may include restraining orders, orders for spousal support, orders setting out a parenting schedule, and orders setting out child support that is due and payable. Some lawyers ask for more support than would normally be appropriate. Some lawyers ask for orders that may not be appropriate and may upend good relations the parties thought they had with one another — or might exacerbate already bad relations by throwing in unnecessary additional conflict by imposing inappropriate restrictions or support provisions. These orders can always be changed later, but some lawyers may try to take advantage of the situation and obtain orders that “over-reach. And those orders will take weeks or longer to get straightened out and “re-set” the case so that more appropriate orders are in place (modifications of ex parte temporary orders).

There is always a lot of uncertainty and chaos surrounding the first few weeks after a divorce petition is filed. That uncertainty and anxiety can easily be heightened when the first party to file obtains unexpected orders out of line with the parties’ normal practices, removes the non-filing party from the residence on claims of domestic violence, or asks for other inappropriate orders that may take weeks or longer to “undo.”

And the more tension, anger, dysfunction, arguments, and chaos that is already happening in a relationship makes it likely that if a person who is causing problems files for divorce first, that person may ask for inappropriate orders or overreach the normal bounds.

We typically don’t suggest that our clients file a divorce. Our job is not to decide when you should end your marriage. But if your spouse is abusive, agitated, threatening, out of control, or has told you that you are going to be “taken to the cleaners” (you won’t be), it’s probably a good time to at least consider making a protective filing to protect against the other spouse from filing first and obtaining unreasonable initial orders.

When you file for divorce first, you can either ask for ex parte temporary orders or NOT for any orders. In Johnson County, the Court rules provide that only one petition between married couples will be filed — the first filed. Any later petition by the other spouse will be rejected.