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About the Kansas Divorce Process

Set forth below is an overview of Kansas divorce laws and the Kansas divorce process. This summary is meant to provide general information only and is not legal advice. Every situation is different. Call one of Joseph, Hollander & Craft’s divorce attorneys for counsel regarding what to do in your specific situation.

Jurisdiction and Venue

In order to file for divorce, legal separation, or annulment in Kansas, one of the parties must be an “actual resident” of Kansas for at least sixty days prior to filing the divorce petition. If one party resides outside of Kansas, jurisdiction may be obtained over that person through their consent, by serving the person in Kansas, or through one of several “long-arm jurisdiction” provisions. An action for divorce, annulment, or separate maintenance may be brought in the county where either party resides, or where service may be obtained on the respondent. If the petitioner is a resident of or stationed at a United States post or military reservation within the state, the action may be brought in any county adjacent to the post or reservation.

Grounds for Divorce or Separate Maintenance

The court can grant a divorce or legal separation based upon incompatibility, failure to perform a material marital duty or obligation (fault), or incompatibility by reason of mental illness or mental incapacity of one or both of the parties. By far, the most common basis for divorce or legal separation is incompatibility because it does not require proof of fault; it merely requires that the party seeking the divorce believes the parties are incompatible.

Starting the Kansas Divorce Process

The divorce, legal separation, or annulment process begins when one party files a petition. The individual filing the petition is known as the petitioner and the other party is identified as the respondent. The petition will identify when and where the parties were married, if there are any minor children of the parties, if the parties have assets and debts subject to division by the court, and possibly other legal issues. A filing fee will be charged by the district court clerk upon filing the petition with the court.

Temporary Orders

Kansas law allows for the district court to issue ex parte temporary orders in divorce, legal separation, or annulment actions. Ex parte orders are issued when the court has been provided with only the petitioner’s basis for the temporary order provisions and the respondent’s input has not been considered. You may have heard the phrase, “The first to file wins.” This refers to the fact that the petitioner may obtain temporary orders from the court on issues such as which party is awarded the marital residence, which party is granted residency of the minor children, a parenting plan (visitation schedule), division of the parties’ assets and debts, child support, and spousal maintenance on an ex parte basis. However, these orders are temporary in nature and are subject to modification upon the respondent filing a motion to modify them. If the respondent files a motion to modify, the matter will be set for a hearing so that the court can consider both parties’ perspectives as to the appropriate order.

Serving the Respondent

The person named as the respondent normally does not become a party to the action until they are served with copies of the summons, petition, and temporary order. The action is commenced against them when they receive this notice and the temporary order takes effect at that time. Service in Kansas may be obtained by having law enforcement or a special process server personally serve the respondent, through certified mail, by the respondent voluntarily entering their appearance and waiving formal service, and, in some circumstances, through publication in an area newspaper. Service must be accomplished by one of these formal means. It cannot be obtained by the petitioner providing the summons, petition, and temporary orders directly to the respondent.

Cooling Off Period

Ordinarily, the district court does not have the authority to grant a divorce until 60 days have elapsed since the filing of the petition. This waiting period is generally referred to as the “cooling off” period. A court may grant a divorce before 60 days have passed only in rare, special circumstances. Your divorce attorney can provide more details on this option.

Marriage Counseling

Although there is a statutory provision allowing the district court to order parties contemplating divorce into marriage counseling, it is rarely applied.

Maintenance

The divorce decree may award either party an allowance for future support, designated as spousal maintenance (sometimes referred to as alimony), as the court finds just, fair, and equitable. Maintenance may be ordered in periodic payments, a lump sum, a percentage of earnings, or on any other basis established by the court. In determining an award of spousal maintenance, the court will generally consider the length of the marriage, the parties’ needs and ability to pay, the earning capacity of each party, the ages of the parties, whether there are children of the marriage, and whether one party contributed to the education or career of the other party during the marriage. The court cannot enter an award of spousal maintenance exceeding 121 months of its own accord. Upon agreement of the parties, the court can enter an award of spousal maintenance exceeding 121 months. Kansas does not have formal guidelines for establishing spousal maintenance but Johnson County, Douglas County, and Shawnee County have established guidelines that they follow. JHC’s quality divorce attorneys are fluent in all the different district guidelines in the state of Kansas.

Discovery

Discovery is the process of gathering information and documents concerning the issues involved in the divorce. Each party can submit written discovery to the other party requiring the production of relevant case documents and may require the other party to answer written questions under oath regarding case issues. Either party may take the other party’s deposition or may depose other relevant witnesses. Not all cases require extensive discovery. Those that do generally involve larger marital estates, contested custody, or residency and parenting time disputes.

Trial

If the parties are unable to resolve all the issues in their case, remaining issues may be presented to the court by each individual’s divorce lawyer for resolution. Each party may call witnesses to testify and may introduce exhibits to support his or her position. The court will make a finding on each contested issue, and the court’s decision will be included in the decree of divorce to all parties.

Decree of Divorce

The Journal Entry of Judgment and Decree of Divorce is the document that dissolves the bonds of matrimony and grants the divorce. The decree generally includes final parenting plan provisions establishing legal custody, residency, and parenting time, child support provisions, maintenance, division of the parties’ marital estate, and other issues presented to the court for determination. Once the decree is filed with the district court clerk, the divorce is finalized. Although the parenting plan is commonly referred to as a “permanent parenting plan,” the court retains continuing jurisdiction over all child-related issues (legal custody, residency, parenting time, and child support) until the child is 18 years of age or later in some child support situations.

 From “Ours” to “Mine” and “Yours”

In a divorce, what was once called “ours” splits into “mine” and “yours.” While you can easily agree not to live together, what will happen to the things you’ve worked so hard to acquire? Dividing the marital assets can be one of the most difficult tasks faced by divorcing couples. But, if you and your soon-to-be ex can agree on dividing some of the most commonly contested assets, you may enable the divorce to go a little more smoothly. JHC’s divorce attorneys can help make sure you are not left behind when it comes to asset distribution during divorce proceedings.

Property Division

During your divorce proceedings, Kansas statute directs that “the 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 the spouse’s own right after marriage or acquired by the spouses’ joint efforts, by: (A) a division of the property in kind; (B) 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 (C) ordering a sale of the property, under conditions prescribed by the court, and dividing the proceeds of the sale.” All of the assets and debts owned by the parties, individually or jointly, at the time the divorce is filed comprise the “marital estate.” The court is required to make an equitable division of the marital estate, which does not necessarily mean an “equal” division. Although the court will generally award each party the separate property he or she owned prior to marriage and divide that property acquired during the marriage, it is possible that separate property will be included in the court’s division. Division of debt is treated in the same manner. If one party brought debt into the marriage, that debt may be carved out of the debt pool and awarded to the originating party. Generally, joint debt accumulated during the marriage will be divided between the parties. It is important to be aware that one party’s status as the primary wage earner during the marriage will not result in an unequal division of the marital estate. A qualified JHC divorce attorney can talk to you about the negotiation and appeals process during divorce proceedings.

Property Settlement Agreement

The parties can take the division of their marital estate out of the hands of the court by entering into their own property settlement agreement, also referred to as a marital settlement agreement. This written agreement can be a separate document, or it can be incorporated into the Journal Entry of Judgement and Decree of Divorce. The property settlement agreement will be reviewed by the court, and it will be approved if the court finds it to be just, fair, and equitable. The agreement must include enough details for the court to make such a finding. Once approved by the court, property settlement agreements are generally not review-able or modifiable by the court, except in limited circumstances.