CAN A SERVICE MEMBER FILE FOR DIVORCE IN KANSAS EVEN THOUGH HE OR SHE IS STATIONED IN ANOTHER STATE??

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Perry v. Perry, 623 P.2d 513 (Kan. Ct. App. 1981)

This case answers the following question:

Can a service member file for divorce in Kansas even though he or she is stationed in another state?

The issue in this case is whether a service member can file for divorce in Kansas even though he or she is stationed in another state. A service member can file for divorce in Kansas even though he or she is stationed in another state, so long as the intention to move back to Kansas after his or her service exists.

In this case, a service member was a resident of Kansas when he joined the Navy in 1955 and was continuously in service at the point when he filed for divorce in Kansas. The service member was awarded a default divorce in November 1978 because his wife was personally served in Virginia but never appeared in the Kansas suit. The divorce decree included provisions for child custody, child support, property division, and alimony. In January 1979, the wife filed a motion to set aside the judgment in part because the service member was not a resident of Kansas when he filed the petition. The trial court overruled the motion to set aside the judgment, and the wife timely filed an appeal.

A service member can file for divorce in Kansas even though he or she is stationed in another state, so long as the intention to move back to Kansas after his or her service exists. Under Kansas law, in order to file for divorce, one must be an actual resident of the state for sixty days preceding the filing of the petition. In Kansas, servicemen may retain the residence from which they entered service no matter how long they are physically away, so long as there is no intent to change. The burden of proving a change in one’s residence is upon the one alleging the change in residence. In this case, the trial court found the wife failed to meet her burden of showing the service member had abandoned his Kansas residence and changed to a new residency. In fact, the court was persuaded by the evidence showing the service member’s intent was to return to Kansas. Some of this evidence included the service member’s claim to Kansas as his residence on forms when reenlisting, voting absentee in Kansas as late as 1972 and never voting elsewhere, and continuously carrying a Kansas driver’s license over the years. The wife failed to present any evidence to contradict these facts at trial, thus failing to meet her burden to prove a change of residency.

The Court of Appeals of Kansas held that the service member’s residence was still Kansas since he had intention to return there after completing his service. The wife failed to provide any evidence that established a change of residency, and the evidence on the record demonstrated that the service member was in fact a resident of Kansas.Therefore, the service member met the criteria of the statute, requiring that one be a resident of Kansas for at least sixty days prior to filing a petition for divorce.