Step 1 – Making The Decision To Get A Divorce
Decision To Divorce
Marriage is one of the only contracts that require government approval to enter into. It likewise requires government approval to end (absent a few, unique circumstances). 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.
Kansas does not impose a minimum length that a marriage must have lasted before it can be ended via divorce. However, there is one type of “time limit” imposed: residency. 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.
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 is the first and preferred ground upon which to find divorce proper. In Berry v. Berry, the court defined this ground as “a deep and irreconcilable conflict in the personalities or temperaments of the parties [making] it impossible for them to continue a normal marital relationship.” However, the lofty words of the court make incompatibility seem more difficult to prove than it actually is: the spouses simply need to be incompatible for this ground to exist. This means that even if the spouse that is not filing for divorce believes the couple is compatible, this ground still applies. The Kansas Supreme Court promptly summarized this ground as the ultimate trump card in LaRue v. LaRue: there is no defense to incompatibility and any argument from the other spouse only tends to prove incompatibility exists by showing disagreement. 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 Marital Duty
The second ground for divorce is a fault-based ground. This wordy title encompasses actions that constitute a violation of a “marital duty” and are widely common-sense type events such as abuse and adultery. Less predictable occurrences can also support this ground. These include habitual drunkenness and lengthy imprisonment occurring after marriage. The requirement of proving these occurrences makes this ground far less attractive for most spouses seeking divorce, even if the underlying events have occurred. The court may even refuse to grant a divorce if the filing party fails to prove an event or occurrence constituting this ground. Thus, incompatibility is the preferred ground upon which to request divorce even when such facts supporting this other ground are present.
Incompatibility By Reason Of Mental Illness Or Incapacity
The third and by far least common ground for divorce is applicable only when one or both spouses are mentally ill. 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 nearly obsolete in most divorce proceedings.
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.
In certain, 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. These grounds include incest, bigamy, infancy (spouse was under 18 at time of marriage and lacked parental consent), fraud, or mutual mistake.
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.
For further information regarding the divorce process, please see the below link.
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