Kansas Divorce Basics
Termination of marriage in Kansas is referred to as a Divorce.
Residency Requirement:
To file for divorce in Kansas, either party must be an actual resident of the state for the 60 days immediately preceding the filing of the Petition.
Military Personnel:
Any person who has been a resident of or stationed at a U.S. post or military reservation within the state for 60 days immediately preceding the filing of the Petition may file an action for divorce in any county adjacent to the post or reservation.
Filing:
The Petitioner (filing party) may file the Petition for Divorce and a Domestic Relations Affidavit in the District Court of the county where either party lives. After being served, the Respondent (non-filing party) may answer and may also file a counterclaim for divorce, annulment or separate maintenance.
An action for divorce shall not be heard until 60 days after the filing of the Petition unless the judge enters an order declaring the existence of an emergency. Upon finding that an emergency exists, the divorce and all relevant issues may be heard immediately.
Marriage Counseling:
After the filing of the Answer or other responsive pleading by the Respondent, the court, on its own motion or upon motion of either of the parties, may require both parties to seek marriage counseling services if available within the judicial district where the action is pending. Neither party shall be required to submit to marriage counseling provided by any religious organization of any particular denomination.
Spouse’s Name:
Upon the request of a spouse, the court shall order the restoration of his/her maiden or former name. The court shall have jurisdiction to restore the spouse’s maiden or former name at or after the time the decree of divorce becomes final.
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Legal Grounds for Divorce
The district court shall grant a decree of divorce for any of the following grounds:
1. Incompatibility;
2. Failure to perform a material marital duty or obligation; or
3. Incompatibility by reason of mental illness or mental incapacity by one or both spouses.
The ground of incompatibility by reason of mental illness or mental incapacity requires a finding of one of the following situations:
Confinement of the spouse in an institution by reason of mental illness for a period of two years, which does not have to be continuous;
An adjudication of mental illness or mental incapacity of the spouse by a court of competent jurisdiction while the spouse is confined in an institution by reason of mental illness, by at least two or three physicians, appointed by the court, that the mentally ill or mentally incapacitated spouse has a poor prognosis for recovery from the mental illness or mental incapacity.
Annulment
The court shall grant a decree of annulment of any marriage for either of the following grounds:
1. The marriage is void for any reason; or
2. The contract of marriage is voidable because it was induced by fraud.
The court may grant a decree of annulment of any marriage if the contract of marriage was induced by mistake of fact, lack of knowledge of a material fact or any other reason justifying cancellation of a contract of marriage.
Void Marriages:
Incestuous marriages - those between parents and children, including grandparents and grandchildren of any degree, between brothers and sisters (whole or half blood), and between uncles and nieces, aunts and nephews, and first cousins;
Underage marriages – when either party is under the age of 15 years, or is 15 years of age and did not obtain judicial consent, is 16 or 17 years of age and did not obtain consent from the parents or legal guardian; and
Any remarriage contracted by a party, in or out of state, with any other person before a judgment of divorce of the previous marriage becomes final shall be voidable until the decree of divorce becomes final.
Property Division
A divorce decree shall divide the real and personal property of the parties, including any retirement and pension plans, whether owned by either spouse prior to marriage, acquired by either spouse in his/her own right after marriage, or acquired by their joint efforts.
The property may be divided in the following ways:
A division of property in kind;
Awarding the property or part of the property to one of the spouses and requiring the other to pay a just and proper sum; or
Ordering a sale of the property, under conditions prescribed by the court, and dividing the proceeds of the sale.
When making a determination regarding division of property the court shall consider the following factors:
The age of the parties;
The length of the marriage;
The property owned by the parties;
The present and future earning capacities of the parties;
The time, source and manner of acquisition of property;
Family ties and obligations;
The allowance of maintenance, or lack thereof;
Dissipation of assets;
The tax consequences of the property division upon the respective economic circumstances of the parties; and
Any other relevant factors that the court considers necessary to make a just and reasonable division of property.
Maintenance and Support
A divorce decree may award an allowance for future support denominated as maintenance to either party, in an amount the court finds to be fair, just and equitable under all of the circumstances. The decree may make the future payment modifiable or terminable under certain circumstances, but it may not award maintenance for a period of time longer than 121 months.
Maintenance may be in a lump sum, in periodic payments, on a percentage of earnings or on any other basis.
Child Custody and Support
Custody:
The court shall base its determination of custody or residency of a child on the child’s best interests. If the parties have entered into a parenting plain, it shall be presumed that the agreement is in the best interests of the child.
In determining the issue of child custody, residency and parenting time, the court shall consider all of the following relevant factors:
The length of time that the child has been under the actual care and control of any person other than a parent and the relevant circumstances;
The desires of the child’s parents regarding custody or residency;
The desires of the child regarding custody or residency;
The interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child’s best interests;
The child’s adjustment to his/her home, school and community;
The willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for continuing relationship between the child and the other parent;
Evidence of spousal abuse;
Whether a parent is subject to the registration requirements of the Kansas offender registration act, and applicable amendments, or any similar act in any other state, or under military or federal law;
Whether a parent has been convicted of abuse of a child;
Whether a parent is residing with an individual who is subject to registration requirements of the Kansas offender registration act, or any similar act in any other state, or under military or federal law; and
Whether a parent is residing with an individual who has been convicted of abuse of a child;
Neither parent shall be considered to have a vested interest in the custody or residency of any child as against the other parent, regardless of the age of the child, and there shall be no presumption that it is in the best interests of any infant or young child to give custody or residency to the mother.
There shall be a presumption that it is not in the best interest of the child to have custody or residency granted to a parent who is residing with an individual who is subject to registration requirements of the Kansas offender registration act, or any similar act in any other state or under military or federal law; or is residing with an individual who has been convicted of abuse of a child.
The court shall make any order relating to custodial arrangements which is in the best interests of the child. The order shall provide one of the following legal custody arrangements, in the order of preference:
Joint legal custody – both parents shall have equal rights to make decision in the best interests of the child;
Sole legal custody – the court may order the sole legal custody to one parent when it finds that it is not in the best interests of the child that both of the parents have equal rights to make decisions pertaining to the child.
After making a determination of the legal custodial arrangements, the court shall determine the residency of the child from the following options:
Residency – The court may order a residential arrangement where the child resides with one or both parents;
Divided residency – in an exceptional case, the court may order a residential arrangement where one or more children reside with each parent and have parenting time with the other; or
Non-parental residency – if the court determines that there is probable cause to believe that the child is a child in need of care or that neither parent is fit to have residency, the court may award temporary residency of the child to a third party.
The parents shall submit either an agreed parenting plan or, in the case of dispute, proposed parenting plans for the court’s considerations. The parenting plan should establish legal custody, residency, parenting time and other matters regarding a child custody arrangement.
A parent is entitled to reasonable parenting time unless the court finds, after a hearing, that the exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health.
Counseling:
At any time prior to or after the alteration of the spouses’ marital status, the court may order that any of the parties and their children be interviewed by a psychiatrist, licensed psychologist or other trained professional in family counseling, approved by the court, for the purpose of determining whether it is in the best interests of any of the parties’ children that the parties and any of their children have counseling regarding matters of legal custody, residency, visitation or parenting time.
Support:
The purpose of child support is to provide for the needs of the child. The needs of the child are not limited to direct expenses for food, clothing, school and entertainment. It is also to be used to provide for housing, utilities, transportation, and other indirect expenses related to the day-to-day care and well-being of the child.
Kansas uses the Income Shares Model to calculate child support obligations. The basic child support obligation is determined by using child support schedules. These schedules are dependent upon three major factors: the parents’ combined gross income, the number of children in the family, and the ages of the children. The schedules take into consideration income deductions for social security, federal retirement, federal and income taxes, and property taxes on owner-occupied housing.
If the combined child support income exceeds the highest amount shown on the schedules, the court will exercise its discretion to determine what amount of child support should be set in addition to the highest amount on the Schedule. A formula is presented at the end of each child support schedule to compute amounts not set out on the schedules.
If the parties share legal responsibility for more than six children, support should be based upon the established needs of the children and be greater than the amount of child support on the Six Child Families’ Schedule.
Parents who share the children’s time equally or nearly equally may be eligible for a parenting time adjustment or use the shared expense formula, but not both. Actual, reasonable, and necessary child care costs paid to permit employment or job search of a parent should be added to the support obligation.
If costs of Health, Dental, Orthodontic, and Optometric Premiums and/or work-related child care costs are included in the total child support obligation, the parent making the payment is credited.
The court shall make provisions for the support and education of the minor children. Regardless of the type of custodial arrangement ordered by the court, it may order the child support and education expenses to be paid by either or both parents for any child younger than 18 years of age.
Child support shall terminate when the child reaches the age of 18 years unless the following applies:
The parent(s) agree, by written agreement approved by the court, to pay support beyond the time the child reaches the age of 18 years;
The child reaches 18 years of age before completing his/her high school education, in which case the support shall not terminate automatically, unless otherwise ordered by the court, until June 30 of the school year in which the child became 18 years of age, if the child is still attending high school;
The child is still a bona fide high school student after June 30 of the school year during which the child became 18 years of age, in which case the court, on motion, may order support to continue through the school year during which the child becomes 19 years of age, so long as the child is a bona fide high school student and the parents jointly participated or knowingly acquiesced in the decision which delayed the child’s completion of high school.
*Note: Existing Child Support Guidelines are currently under review by the Child Support Guidelines Advisory Committee. Final recommendations are expected to be delivered to the Kansas Supreme Court in August, 2011. Any new order is expected to be effective January 1, 2012.
Legal Separation
The grounds for separate maintenance are the same as those for divorce.
If the parties to a marriage have entered into a separation agreement which the court finds to be valid, just and equitable, the agreement shall be incorporated in the decree. A separation agreement may include provisions relating to a parenting plan.
Any provisions relating to the legal custody, residency, visitation parenting time, support or education of the minor children shall be subject to the control of the court in accordance with state law.
Links to State Resources
