Divorce, Separate Maintenance, and Annulment in Kansas: A Guide
by Ronald W. Nelson PA
In order to help you through the divorce process and in an attempt to answer some of the more common questions our clients have about domestic relations actions and the legal process, we have prepared this pamphlet to help explain the steps involved in the process.
Kinds of Domestic Relations actions filed in Kansas
There are three different domestic relations actions that can be filed in Kansas between married persons. Each of these actions affects the status of the parties’ relationship in different ways:
Divorce. The first kind of action is the most commonly known. It is the “divorce.”
A divorce action 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 two people have been married, so long as the requirements of the statute are met. An annulment may be obtained if the marriage is either “void” or “voidable.” In other words, the court may grant the parties an annulment if the parties either could not have become legally married in the first place (such as because they were too close in family relationship or there was some legal prohibition on the parties becoming married) — a “void” marriage — or if there was some significant fact about which one or both parties did not have knowledge that existed at the time of the marriage which would have led that person not to enter into the marriage or if there was some other defect in the parties’ marriage other than a prohibition on their marrying — a “voidable” marriage.
Length of Residence Required to File
In order to file a Divorce action, either the husband or the wife must have been a resident of the State of Kansas for at least 60 days (2 months) before the petition is filed. A Petition for Separate Maintenance or Annulment can be filed on the first day one of the parties becomes a “bona fide” resident of the State of Kansas. A domestic relations action is usually filed in the county in which either you or your spouse resides. Your attorney will discuss the exceptions to this procedure if you wish to file in a different county.
Grounds for Divorce
Kansas is considered a “no-fault” divorce state. This means that the usual ground for divorce is “incompatibility.” “Incompatibility” means that the relationship of the parties has broken down to such an extent that the parties can no longer live together and that the parties (or one of them) no longer wish to be married to one another. When a petition for divorce is filed, the petition usually says only that the parties are “incompatible.” A party filing for divorce may also claim “fault” grounds for the divorce; however, Kansas appellate court decisions indicate that this can have no effect on the manner in which issues are decided unless that fact has some specific relevance to the issue to be decided. If a divorce is requested by one party to a marriage, the court is required to grant the divorce even if the other person does not want the divorce.
Under the “no-fault divorce” system, it is not necessary either to allege or prove grounds such as adultery, extreme cruelty, abandonment, physical abuse, or any other “fault” grounds, even though that conduct may have occurred. Kansas does allow for the assertion of “fault” grounds, although these grounds must be stated in the generic form as “failure to perform a material marital duty.” However, the assertion of “fault” grounds is usually not advisable and typically will not affect the decision of any ultimate issue. The usual effect of allegations of fault in a divorce action is an increase in cost rather than an expeditious determination of the case. Notwithstanding this caveat, there may be some circumstances under which such “fault” grounds should be alleged, although those 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.
There is no legal significance to whether the husband or wife files the domestic relations Petition. There may, however, be some procedural or tactical advantages to be the first person to file a petition. Because Kansas is a “no-fault” divorce state, the court does not take into consideration in making its ultimate decision on issues which spouse was the first to file a domestic relations petition. It may, however, be in a parties’ best interest to be the first to file so that person can obtain “temporary orders” from the court or to protect against the issuance of temporary orders without prior notification. If an action is on already on file some courts in Kansas will not allow other domestic actions involving the same parties to be filed, unless there is an allegation of spousal abuse.
The first step taken in starting any domestic action is the filing of the “petition.” The petition is a simple, straight forward legal document that contains basic information for the court’s information. The spouse who first files the petition is called the “Petitioner.” The other spouse — the spouse against whom the Petition for Divorce is filed — is called the “Respondent.” The following information is included in the petition:
- Names of Husband and Wife;
- Date and place of marriage;
- Grounds for divorce, separate maintenance, or annulment;
- Names, birth-year, and ages of any children of the marriage;
- A request that the court divide accumulated property and debt;
- A request that the court determine appropriate child support and/or spousal support, if applicable;
- If there are minor children of the marriage, additional information regarding the residence addresses and the persons with whom the custody of the children has been during the five years before the petition filing date is required.
Kansas law requires that the court restore a person to his or her maiden or former name upon request in a domestic matter. This request is usually included in the petition although the request can be made at any time up until the time of the final hearing. If you wish to have a restoration of your former name, please let us know as soon as possible.
Court Costs and Filing Fees
“Court costs” are the fees required by the courts in order to file a court action. As of July 1, 2011, a filing fee in Johnson County, Kansas of $187.00 must be paid to file a divorce action. A filing fee of $55.50 is required to file any post-decree motion. Other “court costs” may include service fees, deposition expenses, and other similar expenses.
At the time a petition is filed, the person filing the petition can request that various orders be issued by the court. These are called “temporary orders” and they govern the relations between the parties from the time they are entered until the decree is issued. If temporary orders are not obtained at the time of the filing of the petition, it is most likely that a motion and hearing will need to be scheduled in order for the court to issue such orders. There are many different orders that can be issued on a temporary basis including:
- orders for possession of the residence, vehicles, and other property;
- orders restraining the parties from bothering or harassing one another, hiding property, altering or terminating insurance benefits, and spending money for reasons other than day-to-day living expenses;
- orders granting temporary residential custody and visitation of children;
- orders for temporary spousal and child support;
If you are seeking temporary support for your minor children and/or temporary support for yourself, a document called a “Domestic Relations Affidavit” (or Financial Affidavit) must be completed and filed with the court. This Affidavit contains information about the incomes of the parties, the number of children each of the parties has, the ages of the children, monthly income and expenses, the amount of any outstanding secured and unsecured debts, and the amount of support requesting to meet those needs.
The Temporary Orders are usually delivered to your spouse at the same time as the Petition for Divorce is delivered. Kansas law requires that restraining orders be delivered to your spouse in person.
Serving the Papers
After the petition is filed, your spouse must receive proper notification that a divorce action has been filed. There are a number of ways your spouse can be notified that you have filed a divorce action. The manner by which your spouse is notified of the filing of the case depends very much on the relationship between the two of you when the petition is filed, whether you are living together and plan on continuing living together, whether there are minor children involved and other important factors.
- Entry of Appearance. Your spouse may sign a written “entry of appearance.” This is a document prepared by our office for your spouse to sign indicating that the petition has been received, acknowledging that the Court has jurisdiction and waiving any requirement that the petition be handed to him or her by a sheriff or other person authorized to serve process. The signing of the “entry of appearance” does not mean that your spouse has agreed to any of the requests contained in the petition or other papers filed. The “entry of appearance” can be signed by your spouse in our office or mailed with the necessary papers to your spouse. The entry of appearance must be signed in front of a Notary Public. We try to use the entry of appearance whenever possible because it tends to lessen the hostility and may help in facilitating final agreement on the divorce issues.
- Formal Service. If your spouse is unwilling to sign an entry of appearance, if you are not comfortable handling the service in this manner or if you are not sure how your spouse will react to receiving a Petition for Divorce, we can have the petition and any other papers which need to be given to your spouse by either the Sheriff or a person who is specially appointed by the court to serve legal papers (a “special process server”), or by mail service procedures. This is usually an easy process. A party to a divorce action is not authorized to deliver service to the spouse.
“Answering” the Divorce Petition
When the petition is delivered to the spouse who did not file the petition, that spouse has twenty days (if served in Kansas) to respond to the petition if he or she is served inside Kansas or thirty days if he or she is served outside of Kansas.
The response to a Petition for Divorce is called an “answer.” The “answer” responds to each point raised in the petition by either admitting the fact, denying the fact or providing additional information to correct the fact alleged. If the spouse against whom the petition has been filed fails to respond to the petition within the time provided, that spouse is in “default” and a decree of divorce can, under some circumstances, be entered against that spouse without his or her knowledge. It is very important if you are the person against whom a divorce action has been filed that you file a response to the petition. If you do not do so, you may lose valuable rights and you may not have any say in the provisions of the final divorce decree.
If temporary orders were filed in the case, the responding party may request a modification in the orders entered. If the orders are not changed, the original orders are binding on the parties and a judgment may be issued for any failure to pay the amounts due under that order.
Planning for the Divorce
As soon as possible you should try to determine the nature and extent of your property, debt and financial holdings and gather together any documents containing that information. We will need this information in order to determine how the property should be divided or what recommendations would be in your best interest.
You should attempt to start dividing out your respective debts and obligations as soon as possible. Because the court usually looks at the date on which the petition for divorce is filed in determining obligations, you should try to keep your financial relations separate after that time, if at all possible. It may be best to open new checking, savings and charge card accounts and close or inactivate accounts on which both you and your spouse have together. This will make it easier for you and the court to make a fair division of debt at the end of your case.
One Lawyer or Two?
It is neither practical nor ethical for a lawyer to represent both parties to a domestic relations action. Although it is possible for only one person in a domestic relations action to be represented, we cannot represent both parties. When a domestic relations action has been filed there is an inherent conflict between the interests of those two people. As your lawyers, we can only advise you.
There are rare instances in which you or your spouse may have agreed on everything. In those cases, we may be able to draft the necessary documents setting forth that agreement; however, we will not be able to advise your spouse of the legal meaning of those documents. If your spouse has any questions, he or she should consult another lawyer.
An “uncontested divorce” is a divorce action in which you and your spouse agree on all aspects of the case, including who is to get what property, who is to pay what debt, whether or not there will be spousal support, how child custody, visitation and support will be arranged, the payment of attorneys’ fees and costs and that both of you want a divorce. If you and your spouse have not agreed on all these matters, your divorce will be “contested.” If your spouse disputes any of these matters, you do not have an “uncontested divorce” and a trial will be necessary.
The Divorce Trial
Every case, regardless of whether it is contested or uncontested will result in a “trial.” If you and your spouse agree on most or all of the aspects of the case, the trial may be very short. If your case is uncontested or agreed, the trial will consist of a short recital to the judge of the agreements you and your spouse have made and a brief statement of how you and your spouse are “incompatible.”
If you and your spouse do not agree on all aspects of the case, evidence and testimony will be presented to the judge assigned to your case and that judge will make a decision on how to resolve those disputed issues. There is no jury in a divorce case in Kansas. The length of time a trial in your case may take if it is contested depends very much on the nature of the issues in dispute between you and your spouse, the extent of property and debt, whether or not there are issues regarding children and other matters.
October 10, 2011