Filing For Divorce
The initial step in getting a divorce is to file a Petition for Divorce in the county you or your spouse resides in. This is done by filing a Petition for Divorce with the court. This begins the judicial process of divorce and begins the timeline that will ultimately result in the dissolution of the marriage.
A Petition for Divorce is a lawsuit filed by one spouse suing the other for a divorce. The Petition will contain both spouses’ name and address, a ground for the divorce, a request for the divorce and orders regarding your children or your property. The Petition gets signed by you and your attorney and then filed with the court and assigned to a judge.
K.S.A. Section 23-2704 controls the contents and requirements of a Petition for Divorce. The Petition is organized in a list of numbered paragraphs, each containing an allegation. Collectively, the allegations must come together to describe a set of circumstances entitling the filing party to the court action requested—in the case of divorce, dissolution of the marriage and any orders for child custody, child support, asset and debt distribution, or spousal support. The filing is signed by the attorney hired by the spouse and filed with the court, where it is assigned a case number and a judge.
Each divorce Petition will need to include specific content within its allegations. First, the allegations must establish that spouses are legally married. Next, it must be established that at least one of the spouses has been a Kansas resident for at least 60 days prior to the filing. Again, these are simply allegations at this point in time; there is no need to attach any documentation to prove the residency requirement, the Petition must simply state the allegation that the residency requirement is met. Third, the grounds for divorce—incompatibility, failure to perform a material marital duty, or incompatibility by reason of mental illness—must be stated. This should be in the form of simply stating one of the three grounds; the underlying occurrences giving rise to the grounds is not necessary at this stage in the divorce. Finally, the Petition must identify any minor children that resulted from the marriage.
Where to File
The idea of where to file the petition speaks to the “Jurisdiction” and “venue”, and the case could be dismissed if the petition is not filed in the appropriate venue and jurisdiction. The venue for a divorce is covered by K.S.A. Section 60-607. It requires that a petition requesting a divorce be filed in the county where either spouse lives at the time of filing or any county where the non-filing spouse can be served. Issues can emerge when parties get into a “race to the courthouse” by recording competing Petitions in different counties. The courts will consider whoever serves the other spouse first the party to have the controlling petition.
Venue, or what county within a state, your Petition is filled in can make a difference. There are different local rules for many counties and some may benefit you more than others. Exploring those options with your attorney is key to making an informed decision about where to file.
Venue may seem like a big deal over nothing, but it can be very important. Different counties have varying judicial attitudes and local rules. Additionally, if spouses have separated, they may have also spread across the state, or even the country. By filing the Petition, that spouse controls the location of the litigation and all these related factors. This can be a huge convenience in terms of attending proceedings and obtaining a friendly venue to litigate in. Experienced legal counsel will be able to fully discuss the options for proper jurisdiction and venue and the advantages in selecting one over another.
Petitioning for a divorce requires the filing party to pay a fee. The court has discretion when determining if a party qualifies for a fee waiver when filing for divorce, as the Unified States Supreme Court held in Boddie v. Connecticut. The fees associated with a divorce action can be waived in extreme financial situations. After a Petition is completed and proper jurisdiction and venue have been determined, the case is ready to be filed. Filing is largely done online today, by submitting a copy of the document to a court’s website. If the Petition is accepted, the court will issue a summons that orders the non-filing spouse to respond within the required timeframe and appear in court as required.
Filing the Petition is only half the job of initiating the divorce proceedings. The filings—the Petition and the summons, as well as any other preliminary filings or orders that may exist—must also be served on the non-filing spouse to give him or her notice of the proceedings. Kansas law recognizes a number of ways to complete service of process on a non-filing spouse. Most commonly, the filings will be personally given to the spouse. The filing can also be left at the residence or place of work for the individual. Finally, service can be achieved by certified mail so long as a return receipt is produced. Service is largely routine, but in some cases, it may be the key to getting a divorce from the court. This is particularly true when a spouse has abandoned the filing spouse and cannot be located. Failure to properly serve a non-filing spouse can result in the court lacking the power to act under the Fourteenth Amendment and later, aspects of the divorce decree may be negated.