INTRODUCTION
Divorce is usually a difficult and stressful time. I present the following information in the hope that it will relieve some of your anxiety and help you understand the steps involved.
LEGAL SEPARATION
Although a form of legal separation called "Separate Maintenance" is available in Kansas, it is not a procedure we usually recommend because it is frequently merely a prelude to divorce and increases the total cost of the legal services to the family. Legal separation leaves the parties married to each other while providing a court order covering such subjects as property division, ongoing child support and custody, and spousal maintenance. In some limited situations, it may be desirable as an alternative to divorce. Feel free to ask about legal separation if you feel it may be more appropriate to your situation. If you are not sure you want a divorce, we will usually recommend counseling services to see if the marital problems can be worked out.
GROUNDS
Most actions for divorce in the State of Kansas are filed on the ground called "Incompatibility." In filing the divorce action, the Petition need only state that the parties are "incompatible." It is not necessary to allege or prove such traditional grounds as adultery, cruelty, physical abuse, etc., even though such conduct may have occurred.
Occasionally one spouse will state, "I will not give you a divorce" or "we are not incompatible." While one spouse may object to the divorce, the final authority to grant a divorce belongs solely to the court; the parties involved do not have the power to "give" or "not give" a divorce.
RESIDENCY REQUIREMENTS
Either you or your spouse must have been a resident of the State of Kansas for at least 60 days before the filing of the Petition for Divorce. Usually the divorce action is filed in the county in which you reside or your spouse resides. We will discuss the exceptions to this procedure if you wish to file in a different county.
STARTING THE PROCEEDINGS
Who should file? There is no legal significance to whether the husband or wife files the Petition, although there may be procedural and tactical advantages for the Petitioner. Pride is another matter. Talk it over with your spouse and let's avoid a race to the courthouse and further hurt feelings over this small item.
The first step is to file a petition. The Petition contains the following information:
- Date and place of marriage.
- Residence of the parties.
- Name and ages of children of the marriage.
- Grounds for divorce.
- Request for division of property and for child support and spousal maintenance.
- Change of Wife's Name: A wife's former name may be restored to her as part of the final decree at no additional charge. We generally suggest that the restoration of the maiden name occur only when there are no children, or restoring a former married name when there are children of that former marriage. If you want your name changed, you must let us know before we prepare the petition.
If you are seeking temporary support for your minor children and/or temporary support for yourself, a Motion for Temporary Support will be filed with the petition. It will be accompanied by an affidavit (called a "Domestic Relations Affidavit") containing information about your incomes, the number and ages of your minor children, your monthly expenses and debts, and how much support you are requesting to meet those needs.
If the Court finds your request for temporary support reasonable, it will issue a "Temporary Support Order."
If your spouse has already filed, be sure to bring us a copy of the Petition - especially if it was delivered to you by the sheriff, a process server, or your spouse's attorney.
SERVING THE PAPERS
There are two ways to notify your spouse officially that you have filed a divorce action:
- Your spouse may sign a written receipt (called an "Entry of Appearance") for a copy of the petition any other papers filed at the same time. The signing of the receipt acknowledges that the court has jurisdiction over
the parties. It does not mean that your spouse has agreed to any of the request in the petition or other papers filed. The receipt can be signed in our office or mailed with the necessary papers to your spouse.
- If your spouse is unwilling to sign a receipt or you don't want to handle it that way, the Sheriff or process server or even the post office by restricted mail will deliver ("serve") a copy of the Petition (and temporary support orders, if any) to your spouse. Your spouse will then have twenty or thirty days in which to respond to (answer or oppose) the petition.
RESTRAINT ORDERS
If you have reason to fear abuse or harassment from your spouse as a result of filing a Petition for Divorce, a restraining order can be issued by the Court, giving you exclusive possession of your present residence and forbidding your spouse to enter it (except to remove personal clothing and effects) and restraining each of you from harassing or abusing each other.
The restraining order can be served by the sheriff along with the petition and temporary support order.
ONE LAWYER OR TWO?
It is neither practical nor ethical for a lawyer to represent competing interests. In those isolated instances where you or your spouse have agreed on everything, it may be possible for one attorney to do all of the legal drafting.
However, as a practical matter, it does not make sense for an attorney to represent both sides in a divorce case because it is likely that there may be a disagreement and that disagreement would likely cause the attorney to withdraw from the case, perhaps before the divorce is granted.
