The Divorce Process
“Nobody sounds good writing about your divorce, let's face it.” -- Mary Karr
The divorce process is more than a little mystifying. Do you, for instance, need a divorce, separate maintenance, a legal separation, or an annulment? Why does it matter if something is “contested” versus “uncontested”? And just how long does the process take? While it appears daunting at first blush, the process in the State of Kansas is surprisingly straight-forward.
Divorce vs. Separate Maintenance vs. Annulment
In Kansas, a divorce is lawsuit which may be brought to seek the dissolution of a marriage. “Marriage” is a distinct legal status which exists between two consenting individuals and unites them into a single household. Traditionally, those unions have been between one man and one woman. (However, as a result of the U.S. Supreme Court’s decision in Obergefell v. Hodges, the right to be married was extended to same-sex couples in 2015.) In addition to dissolving the marriage, the court will also make orders regarding marital property, child custody, child support, and spousal support. The only way to dissolve a marriage in Kansas is through a judicially-granted divorce or annulment. Further, bigamy -- being married to more than one individual -- is a felony pursuant to K.S.A. 21-5609.
A separate maintenance action is a lawsuit which seeks to create a legal separation. Such an action seeks to partition one household into two without, in fact, ending the marriage. As a result, a separate maintenance action will produce the same kinds of orders regarding the parties’ marital property, children, and spousal support as a divorce, but will not feature the granting of a Decree of Divorce. Separate maintenance actions are a legal artifact from an earlier age when divorces were harder to obtain and rarely are filed today.
An annulment action is a lawsuit which seeks to have a marriage nullified and declared void. Annulments are intended primarily to remedy marriages which were entered into unlawfully or unintentionally, and as a result can only be granted upon satisfaction of specific statutory bases.
"Divorce Papers": The Anatomy of a Divorce Proceeding
The divorce process is begun by one spouse filing a Petition. A petition recites what the Petitioner desires from the divorce process and the facts which entitle the Petitioner to those desires. A Petition for Divorce, at the minimum, must request that the Petitioner be granted a divorce from his or her current spouse. The petition may also request division of the parties' property, orders regarding the custody of minor child(ren), and/or the awarding of spousal support.
After the Petition has been filed, a copy must be given to the Respondent -- non-filing party – in a manner prescribed by K.S.A. 60-303. This is “serving” the Respondent. Usually, this entails the Sheriff of the county in which the Respondent resides personally handing the Petition to the Respondent.
Once served, a Respondent has a fixed amount of time to file an Answer. An Answer admits or denies every allegation in the Petition. An Answer may also explain why an allegation cannot be admitted or denied. For Respondents that reside in Kansas, the period to file an Answer is twenty-one (21) days. For those that reside out-of-state, the period is thirty (30).
If the Answer admits all of the allegations of the Petition, then the divorce will be granted. If the Respondent does not file an Answer, he or she may be held in default and the divorce granted even if the Respondent objects.
If an Answer is filed and it denies some or all of the allegations in the Petition, the matter will be set for trial. At trial, each party is able to call witnesses and put on evidence. Each party may also opportunity to cross-examine witnesses and rebut evidence put on by the opposing party. At the trial's conclusion, the court considers everything put before it and rules on each disputed issue before it.