Divorce – State FAQ – Kansas
Residency requirements, venue and procedures
Q: How long must I have lived in Kansas prior to filing for divorce in an Kansas court?
A: Kansas law requires that at least one of the spouses must be a resident of the state for a minimum of sixty (60) days immediately prior to the filing of the petition for divorce.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to what locality the case is filed. In Kansas, the petition for divorce may be filed in the county where either party resides.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Petition for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.
Q: Are there any waiting periods associated with a divorce action?
A: Unless the court has entered an order declaring the existence of an emergency, no decree of divorce may issue until sixty (60) days have elapsed from the filing of the petition for divorce.
Grounds for Divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Kansas. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Kansas?
A: Kansas law permits no-fault divorces based upon incompatibility of the parties. Additional grounds include failure to perform a material marital duty or obligation, and incompatibility of the parties due to metal defect.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: The courts may award alimony to either spouse. Alimony may be periodic, lump sum, based upon a percentage of earnings or any other basis. The award may be any amount determined by the court to be fair and equitable.
Q: Is there a limit to the duration of alimony payments?
A: Yes. The court may not award alimony for a period of time in excess of 121 months. After the expiration of the original 121 month period, a party may petition the court to extend alimony for an additional period not to extend 121 months.
Q: On what basis does the court decide how marital property is divided?
A: Kansas is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The trial court will consider the following factors:
1. The age of the parties;
2. The duration of the marriage;
3. The property owned be the parties;
4. The parties present and future earning capacities;
5. The time, source and manner of acquisition of the property;
6. Family ties and obligations;
7. The allowance of maintenance or lack thereof;
8. Dissipation of assets;
9. The tax consequences of the parties; and,
10. Other such factors the court considers necessary for just and equitable distribution of property.
Q: Is the “separate property” of one spouse subject to being divided?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court may award custody to either parent, regardless of sex, subject to the best interests of the child. In determining the child’s best interests, the court shall consider the following factors:
1. The length of time the child has been under the actual care and control of any person other than a parent and the circumstances thereto;
2. The desires of the child;
3. The interaction and interrelationship of the child with parents;
4. The child’s adjustment to the child’s home, school and community;
5. The willingness and ability of each parent to respect and appreciate the bond between child and other parent; and,
6. Evidence of spousal abuse.
The court may order joint or sole legal custody and may set up residency plans which provide for sole or joint physical custody, based upon the best interests of the child.
Q: Can grandparents be granted visitation rights?
A: Yes. Grandparents can be granted visitation rights when the child is a minor as long as a substantial relationship between the child and the grandparent has been established and it is within the best interests of the child to grant visitation rights to the grandparent.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: The Kansas legislature has established child support guidelines which establish the presumptive correct amount of child support. Deviation from the guidelines require a specific finding by the court that application of the guidelines would be unjust or inappropriate and such findings must be included in the judgment.