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. There are several key factors to keep in mind when considering a divorce.


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. The residency requirement is met when either spouse complies.

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.


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.

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.

Non-Divorce Statuses

Aside from a divorce, you could also file for an annulment or a separation.


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.


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.