No-Fault Divorce in Kansas

Like more and more states, Kansas is primarily a “no-fault” divorce state. The specific Kansas statute that governs divorce proceedings in Kansas provides three reasons for a court to grant a divorce:

1. Incompatibility;
2. Failure to perform a material marital duty or obligation; or
3. Incompatibility by reason of mental illness or mental incapacity of either or both spouses, when certain specific requirements in the law are met.

Under the law, a court must grant a divorce if the person filing the petition requests a divorce for any one of these reasons. These same three grounds provide the basis for an action for separate maintenance (also sometimes called legal separation) under Kansas law.

The law itself does not use the term “no-fault” or “fault” divorce. However, a divorce petition based on incompatibility is commonly characterized as a “no-fault” divorce, while a “fault” divorce would involve a petition claiming “failure to perform a material marital duty or obligation.”

In Kansas, divorce petitions based on “fault” are very rare, regardless of the grounds. The primary reason is that Kansas courts do not want to weigh the “fault” of the two spouses in deciding whether to grant a divorce. That is true even if the petition uses the “fault” terminology. In fact, holdings in Kansas appellate court cases prevent district courts from considering fault in making any decision in a divorce action regarding division of property and debt, or issues involving children, unless that fault is directly relevant to the particular issue under consideration.

As long as one of the spouses requests the divorce, Kansas law requires the court to grant it. While the opposing spouse may not want the divorce or may to make things more difficult by objecting to it, there is no method by which that spouse can prevent the divorce.

Scope of a Kansas Court’s Authority in a Divorce Case

While the granting of the divorce is a foregone conclusion when one spouse files a divorce petition, the district court has the authority to make other decisions as part of the divorce proceeding. Kansas law provides that a divorce decree may address any or all of the following matters:

• Equitable division of the marital property
• Spousal support
• Child support
• Allocation of parental decision-making and determination of a parenting plan
• Name changes of the parties

In practice, the court may separate out (bifurcate) some of these issues into other proceedings, in order to grant the divorce (the ending of the marriage itself) before resolving the remaining issues.

In determining equitable division of property, the district court takes into account a number of factors, including:

• Age of the spouses and length of the marriage
• Present and future earning capability of the parties
• Types of property involved and acquisition circumstances
• Other relevant factors

Even at the stage of determining property division, “fault” of one of the parties is relevant only in very limited circumstances. An opinion from Kansas Court of Appeals states:

[F]ault is not to be considered in determining the financial aspects of the dissolution of the marriage unless the conduct is so gross and extreme that the failure to penalize therefore would, itself, be inequitable.

The court also may allow evidence of fault if one spouse gave away or wasted substantial property or caused a “dissipation of assets” in another way. Otherwise, the court does not take into account the surrounding facts and circumstances relating to “fault” in the divorce in the process of determining asset division.

In other aspects of the divorce case, including child custody aspects of a divorce, the court’s approach is similar. Unless the circumstances or conduct of one of the spouses directly affects specific custody considerations, fault in causing breakdown of the marriage is not a factor considered by the court in determining custody issues.

Incompatibility As the Basis for No-Fault Divorce in Kansas

Kansas law essentially eliminates the concept of fault or blame in divorce and related proceedings, except in very limited circumstances. However, that does not make it easier for the spouses to put aside the emotional consequences of conduct underlying the end of the relationship.

Overhanging issues of fault and blame can easily prevent resolution of important issues in a divorce action. Emotionally based decisions in a divorce case may not be in your best long-term interests. For those reasons, talking with an experienced Kansas family law attorney is always advisable when there are difficult and unresolved issues relating to a divorce.

Talk With Our Experienced Salina, Kansas Family Law Attorneys

Our domestic and family law attorneys at Hampton & Royce, L.C., understand how difficult and emotional divorce and the related issues are for clients. Our clients count on us to protect their interests and needs for both the short-term and the long-term.

We serve clients throughout the State of Kansas. Contact us to schedule a consultation.