MAKING THE DECISION TO GET A DIVORCE
Decision To Divorce: When you get married, you and your spouse are entering into a contract. You must apply for a marriage license before getting married and be approved by the court. Likewise, when making the decision to get a divorce, you also will need a court’s approval. Coupled with the state action requirement for ending a marriage, there are countless other sources of pressure from family, friends, and society at large when deciding if divorce is right for a troubled couple. Understanding the details of the legal process necessary to get out of wedlock is essential to making an informed decision about divorce. In arriving at that decision, many factors should be weighed—both legal and non-legal.
Timing: In Kansas, you do not have to wait any certain amount of time before petitioning the Court for a divorce. However, you do have to meet Kansas’ residency requirement of living in the state for no less than 60 days preceding the filing of your Petition for Divorce. Kansas only wants to end divorces that substantially involve Kansas. To accomplish this, Section 23-2703 requires that one spouse must have been a resident of Kansas for at least 60 days. This may be either spouse, not just the spouse that is filing for divorce with the court. So long as this residency requirement is met, a couple could marry and file for divorce within the same week—or weekend, for that matter.
Reasons for getting a Divorce: Kansas is a no-fault state when it comes to getting a divorce. Fault is not considered in any way by the court. You still are required to assert a reason you are asking the court to dissolve your marriage. Typically, a petitioner will allege “incompatibility” as a reason for requesting the divorce. Courts require specific reasons, known as grounds, for divorce. These classically included fault-based determinations such as adultery, abuse, or the like. Kansas, like most states, now recognizes no-fault divorce, meaning that a couple (or one spouse) can simply determine that the marriage should end, without having to point to a fault-based action. When petitioning for divorce, the spouse must state grounds for the divorce from the three possibilities listed in Section 23-2701.
Incompatibility: Incompatibility, as mentioned above is frequently used as a grounds for requesting a divorce. This is typically very easy to prove just by the nature of the fact that one party is suing the other for divorce. In LaRue v. LaRue, the Kansas Supreme Court makes it clear that there is no defense to incompatibility. In fact, an argument against the incompatibility ground from the other spouse only shows that they are in fact incompatible. In Berry v. Berry, the court defined the ground as the inability to continue a normal marital relationship due to a deep conflict in temperaments. If one spouse uses the incompatible argument, the court will certainly grant the divorce. Incompatibility is the first and preferred ground upon which to find divorce proper. Thus, if one spouse informs the court that he or she believes the partners to be incompatible, the court is bound to grant the divorce.
Failure to Perform A Material Duty: Moving on from incompatibility, the next ground for divorce is fault-based. A failure to perform a “marital duty” typically encompasses abuse and infidelity. However, this ground also covers events such as constant intoxication and extensive imprisonment occurring after marriage. The necessity of demonstrating these events makes this ground far less appealing for most people looking for a divorce, regardless of whether failure to perform a marital duty has actually happened. The court may decline to give a divorce if the petitioning party neglects to demonstrate an occasion constituting this ground. Consequently, incompatibility is the favored ground even if there are details within the marriage that may support another ground.
Incompatibility By Reason Of Mental Illness Or Incapacity: The last and least common ground is relevant when one or both spouses suffer from a mental illness. While psychological illness can happen in numerous ways, this ground speaks to intense, diagnosed illnesses that speaks to the limits of the person. K.S.A Section 23-2701(b) says that spouses can demonstrate this ground in two ways. To begin with, the spouse may be restricted in a mental institution for no less than two years. On the other hand, the spouse must have been discovered inept in some legal proceeding, (for example, being found not guilty of a wrongdoing by reason of insanity). Because this ground is so specific, it is almost obsolete in most divorce proceedings.
While mental illness can occur in many forms, this ground deals with very serious, diagnosed mental illnesses that go towards capacity of the spouse. Section 23-2701(b) requires that this ground be proven solely by one of two means. First, the spouse may be confined in a mental institution for at least two years. Alternatively, the spouse must have been found incompetent in some judicial proceeding (such as being found not guilty of a crime by reason of insanity). This high and very specific manner of proof makes this ground generally not a good basis for a divorce.
Non-Divorce Statuses: Aside from a divorce, you could also file for an annulment or a separation. All marriages can end in divorce. However, certain marriages may be annulled by the court. Additionally, couples may decline to divorce and instead pursue separation. These “alternatives” to divorce are discussed below.
Annulments: An annulment means that a marriage is void; the marriage is treated as if it never occurred. Annulments are fairly rare but can certainly be pursued in cases where a spouse feels as though he or she entered into the marriage on some basis of fraud or deceit. Annulments typically involve incest, fraud, bigamy, or infancy. If proved, in specific circumstances a marriage is deemed void or voidable. Thus, these marriages can be voided rather than dissolved by the court. A void marriage is treated as if it never happened at all. While this seems like a large distinction—and it can make a huge difference in rare circumstances—annulments and divorces are largely treated the same today. The required circumstances for an annulment are fairly extreme and thus, unlikely to be present in the majority of marriage.
Separation: Legal separations do not end your marriage in the eyes of the law, but in many other aspects a separation looks very much like a divorce or annulment. The court will still enter orders regarding child custody, child support, spousal support, and division of assets and debts. A couple may choose to go this route for insurance purposes or religious reasons.
Some states recognize “legal separations” that can include division of property, spousal support, and child custody arrangements, but do not actually dissolve the underlying marriage. Couples can and often do separate for periods of time. A legal separation works a lot like a formal divorce. A petition for separation is filed with the court and the parties then work to separate their assets and debts just as in a divorce. The court can enter child support, spousal maintenance, and a parenting plan, however, the parties will still be considered legally married. Thus, when couples separate they may “feel” unmarried but they certainly are still married in the eyes of the law. For example, a separated spouse that dies intestate—without a will—will have most, if not all, of his or her assets transferred to the other spouse. The fact that the couple is separated, even if the separation had occurred long before the death, will not alter this operation of law. Other legal consequences tied to marriage will also continue to follow a separated couple.