Step 3 – Filing for Divorce
Filing For Divorce
The first step towards having a marriage dissolved by the court is petitioning the court for that action. 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.
The Petition
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
A Petition must also be filed in the appropriate court. This is known as “jurisdiction” and “venue” of the case, and failing to file in the correct courthouse can result in a dismissal of the Petition based on improper jurisdiction or venue. K.S.A. Section 60-607 controls venue for divorce proceedings. It requires that a Petition seeking divorce be filed in the county where either spouse resides at the time of filing or any county where the non-filing spouse can be served. Problems can arise when spouses enter into a “race to the courthouse” by filing competing Petitions in different, appropriate counties. The rules for deciding these situations is generally the same as any race: first to the finish controls. The finish line for the race to filing is serving the non-filing spouse.
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.
Filing
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. Filing for divorce, like other litigation, requires the filing party to pay a fee. This filing fee can be waived in extreme situations, as the United States Supreme Court noted in Boddie v. Connecticut. However, this filing fee is generally required absent a showing of extreme poverty. 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.
Service
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.
For further information regarding the divorce process, please see the below link.
Get your questions answered - call me for your free, 20-minute phone consultation (913) 451-9500.