Divorce in Kansas: Part 2
Uncontested divorce requires neither spouse to appear; no-fault incompatibility requires only one to testify
Please see “Divorce in Kansas: Part 1” for information about counseling, domestic violence, annulment, legal separation, and residency requirements.
If you’d like to read the actual statutes governing Kansas divorce, please click here.
‘Agreed Divorce’ the least complex
The quickest, least complex divorce in Kansas that involves both parties is the “Agreed Divorce,” i.e., uncontested by either party. Because both parties agree to a written settlement, neither summons nor temporary orders are required. It is advisable for the petitioner to have an attorney in order to ensure the settlement is legal and the eventual decree enforceable. The respondent should at least have an attorney review the settlement but is not required to do so.
Not answering petition can result in ‘Default Divorce’
However, even “easier” is the “Default Divorce”; if the respondent won’t sign but never opposes the action, the result will be that the court will enter judgment for the plaintiff by default. For example, let’s say the respondent has seen the paperwork but for whatever reason refuses to sign. The next step is “serving” the respondent with the Petition, which will include how many days the respondent has to answer. If the respondent fails to answer, the court can set a date for the hearing, at which time it will rule on a motion for default. If the respondent is missing or otherwise can not be located, “service by publication” will suffice–again with a legal waiting period–and in lieu of response, the court can grant the divorce via default.
Grounds for divorce
No-fault divorce is available–and most commonly invoked–on grounds of incompatibility, and only one spouse need testify.
Two grounds for fault-based divorce still exist, one so vague as to allow a wide latitude, that of “failure to perform a material marital duty or obligation.” The second is “[t]he ground of incompatibility by reason of mental illness or mental incapacity of one or both spouses shall require a finding of either:”
(1) Confinement of the spouse in an institution by reason of mental illness for a period of two years, which confinement need not be continuous; or (2) 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. In either case, there must be a finding by at least two of three physicians, appointed by the court before which the action is pending, that the mentally ill or mentally incapacitated spouse has a poor prognosis for recovery from the mental illness or mental incapacity, based upon general knowledge available at the time. A decree granted on the ground of incompatibility by reason of mental illness or mental incapacity of one or both spouses shall not relieve a party from contributing to the support and maintenance of the mentally ill or mentally incapacitated spouse. If both spouses are confined to institutions because of mental illness or mental incapacity, the guardian of either spouse may file a petition for divorce and the court may grant the divorce on the ground of incompatibility by reason of mental illness or mental incapacity.
If you are contemplating or facing a contested divorce in Kansas–especially if children or significant assets are involved–legal authorities and family experts say you most definitely need a good attorney.
We can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.