Dissolution of Marriage
Dissolution of Marriage - Kansas Family Law Code
Article 27.—DISSOLUTION OF MARRIAGE
23-2701. Grounds for divorce or separate maintenance.
(a) The district court shall grant a decree of divorce or separate maintenance for any of the following grounds: (1) Incompatibility; (2) failure to perform a material marital duty or obligation; or (3) incompatibility by reason of mental illness or mental incapacity of one or both spouses.
(b) The 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.
23-2702. Grounds for annulment.
(a) The district court shall grant a decree of annulment of any marriage for either of the following grounds: (1) The marriage is void for any reason; or (2) the contract of marriage is voidable because it was induced by fraud.
(b) The district court may grant a decree of annulment of any marriage if the contract of marriage was induced by mistake of fact, lack of knowledge of a material fact or any other reason justifying recission of a contract of marriage.
(a) State. The petitioner or respondent in an action for divorce must have been an actual resident of the state for 60 days immediately preceding the filing of the petition.
(b) Military residence. Any person who has been a resident of or stationed at a United States post or military reservation within the state for 60 days immediately preceding the filing of the petition may file an action for divorce in any county adjacent to the post or reservation.
(c) Residence of spouse. For the purposes of this article, a spouse may have a residence in this state separate and apart from the residence of the other spouse.
23-2704. Petition and summons.
(a) Verification of petition. The truth of the allegations of any petition under this article must be verified by the petitioner in person or by the guardian of an incapacitated person.
(b) Captions. All pleadings shall be captioned, "In the matter of the marriage of _________ and __________." In the caption, the name of the petitioner shall appear first and the name of the respondent shall appear second, but the respective parties shall not be designated as such.
(c) Contents of petition. The grounds for divorce, annulment or separate maintenance shall be alleged as nearly as possible in the general language of the statute, without detailed statement of facts. If there are minor children of the marriage, the petition shall state their names and dates of birth and shall contain, or be accompanied by an affidavit which contains, the information required by K.S.A. 2015 Supp. 23-37,209, and amendments thereto.
(d) Bill of particulars. The opposing party may demand a statement of the facts which shall be furnished in the form of a bill of particulars. The facts stated in the bill of particulars shall be the specific facts upon which the action shall be tried. If interrogatories have been served on or a deposition taken of the party from whom the bill of particulars is demanded, the court in its discretion may refuse to grant the demand for a bill of particulars. A copy of the bill of particulars shall be delivered to the judge. The bill of particulars shall not be filed with the clerk of the court or become a part of the record except on appeal, and then only when the issue to be reviewed relates to the facts stated in the bill of particulars. The bill of particulars shall be destroyed by the district judge unless an appeal is taken, in which case the bill of particulars shall be destroyed upon receipt of the final order from the appellate court.
(e) Service of process. Service of process shall be made in the manner provided in article 3 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto.
23-2705. Answer and counterclaim.
The respondent may answer and may also file a counterclaim for divorce, annulment or separate maintenance. If new matter is set up in the answer, it shall be verified by the respondent in person or by the guardian of an incapacitated person. If a counterclaim is filed, it shall be subject to the provisions of subsections (a), (b) and (c) of K.S.A. 2015 Supp. 23-2704, and amendments thereto. When there are minor children of the marriage, the answer shall contain, or be accompanied by an affidavit which contains, the information required by K.S.A. 2015 Supp. 23-37,209, and amendments thereto.
23-2706. Granting of decree mandatory; exceptions; denial of relief; orders authorized.
The court shall grant a requested decree of divorce, separate maintenance or annulment unless the granting of the decree is discretionary under this act or unless the court finds that there are no grounds for the requested alteration of marital status. If a decree of divorce, separate maintenance or annulment is denied for lack of grounds, the court shall nevertheless, if application is made by one of the parties, make the orders authorized by articles 28, 29, 30 and 32 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto.
23-2707. Interlocutory orders.
(a) Permissible orders. After the filing of a petition for divorce, annulment or separate maintenance, and during the pendency of the action until the entry of final judgment the judge assigned to hear the action may, without requiring bond, make, modify, vacate and enforce by attachment, orders which:
(1) Jointly restrain the parties with regard to disposition of the property of the parties and provide for the use, occupancy, management and control of that property;
(2) restrain the parties from molesting or interfering with the privacy or rights of each other;
(3) provide for the legal custody and residency of and parenting time with the minor children and the support, if necessary, of either party and of the minor children during the pendency of the action;
(4) require mediation between the parties on issues, including, but not limited to, child custody, residency, division of property, parenting time and development of a parenting plan;
(5) make provisions, if necessary, for the expenses of the suit, including reasonable attorney's fees, that will insure to either party efficient preparation for the trial of the case;
(6) require an investigation by court service officers into any issue arising in the action; or
(7) require that each parent execute any and all documents, including any releases, necessary so that both parents may obtain information from and to communicate with any health insurance provider regarding the health insurance coverage provided by such health insurance provider to the child. The provisions of this paragraph shall apply irrespective of which parent owns, subscribes or pays for such health insurance coverage.
(b) Ex parte orders. Orders authorized by subsections (a)(1), (2), (3), (4) and (7) may be entered after ex parte hearing upon compliance with rules of the supreme court, except that no ex parte order shall have the effect of changing the residency of a minor child from the parent who has had the sole de facto residency of the child to the other parent unless there is sworn testimony to support a showing of extraordinary circumstances. If an interlocutory order is issued ex parte, the court shall hear a motion to vacate or modify the order within 14 days of the date on which a party requests a hearing whether to vacate or modify the order. In the absence, disability, or disqualification of the judge assigned to hear the action, any other judge of the district court may make any order authorized by this section, including vacation or modification or any order issued by the judge assigned to hear the action.
(c) Support orders.
(1) An order of support obtained pursuant to this section may be enforced by an order of garnishment as provided in this section.
(2) No order of garnishment shall be issued under this section unless: (A) Fourteen or more days have elapsed since the order of support was served upon the party required to pay the support; and (B) the order of support contained a notice that the order of support may be enforced by garnishment and that the party has a right to request an opportunity for a hearing to contest the issuance of an order of garnishment, if the hearing is requested by motion filed within seven days after service of the order of support upon the party. If a hearing is requested, the court shall hold the hearing within seven days after the motion requesting the hearing is filed with the court or at a later date agreed to by the parties.
(3) No bond shall be required for the issuance of an order of garnishment pursuant to this section. Except as provided in this section, garnishments authorized by this section shall be subject to the procedures and limitations applicable to other orders of garnishment authorized by law.
(4) A party desiring to have the order of garnishment issued shall file an affidavit with the clerk of the district court stating that:
(A) The order of support contained the notice required by this subsection;
(B) fourteen or more days have elapsed since the order of support was served upon the party required to pay the support; and
(C) either no hearing was requested on the issuance of an order of garnishment within the seven days after service of the order of support upon the party required to pay the same or a hearing was requested and held and the court did not prohibit the issuance of an order of garnishment.
(d) If an interlocutory order for legal custody, residency or parenting time is sought, the party seeking such order shall file a proposed temporary parenting plan as provided by K.S.A. 2015 Supp. 23-3211, and amendments thereto, at the time such order is sought. If any motion is filed to modify any such interlocutory orders, or in opposition to a request for issuance of interlocutory orders, that party shall attach to such motion or opposition a proposed alternative parenting plan.
(e) Service of process. Service of process served under subsection (a)(1) and (2) shall be by personal service and not by certified mail return receipt requested.
23-2708. Action for divorce; time for hearing.
An action for divorce shall not be heard until 60 days after the filing of the petition unless the judge enters an order declaring the existence of an emergency, stating the precise nature of the emergency, the substance of the evidence material to the emergency and the names of the witnesses who gave the evidence. A request for an order declaring the existence of an emergency may be contained in a pleading or made by motion. Unless otherwise agreed by the parties, a request for the declaration of an emergency shall not be heard prior to the expiration of the time permitted for the filing of an answer. Unless waived, notice of the hearing requesting the declaration of an emergency shall be given to all parties not in default not less than seven days prior to the date of the hearing. Upon a finding that an emergency exists, the divorce and all issues pertaining thereto may be heard immediately.
23-2709. Pretrial conference.
The court shall conduct a pretrial conference or conferences in accordance with K.S.A. 60-216, and amendments thereto, upon request of either party or on the court's own motion. Any pretrial conference shall be set on a date other than the date of trial and the parties shall be present or available within the courthouse.
23-2710. Marriage counseling; costs thereof.
(a) After the filing of the answer or other responsive pleading by the respondent, the court, on its own motion or upon motion of either of the parties, may require both parties to the action to seek marriage counseling if marriage counseling services are available within the judicial district of venue of the action. Neither party shall be required to submit to marriage counseling provided by any religious organization of any particular denomination.
(b) The cost of any counseling authorized by this section may be assessed as costs in the case.
23-2711. Decree; authorized orders.
(a) A decree in an action under article 27 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, may include orders on the following matters:
(1) An order changing or terminating the parties' marital status by divorce, annulment or separate maintenance;
(2) an order making an equitable division of the parties' property as authorized by article 28 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto;
(3) an order regarding spousal support as authorized by article 29 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto;
(4) an order for child support as authorized by article 30 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto;
(5) an order allocating parental decision-making and entering a parenting plan as authorized by article 32 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto;
(6) an order changing one or both parties' names as authorized by K.S.A. 2015 Supp. 23-2716, and amendments thereto; and
(7) an order awarding costs and attorneys fees to either party under K.S.A. 2015 Supp. 23-2715, and amendments thereto.
(b) The provisions of this section shall be construed and applied retroactively.
23-2712. Separation agreement.
(a) If the parties have entered into a separation agreement which the court finds to be valid, just and equitable, the agreement shall be incorporated in the decree. A separation agreement may include provisions relating to a parenting plan. The provisions of the agreement on all matters settled by it shall be confirmed in the decree except that any provisions relating to the legal custody, residency, visitation parenting time, support or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article.
(b) Matters settled by an agreement incorporated in the decree, other than matters pertaining to the legal custody, residency, visitation, parenting time, support or education of the minor children, shall not be subject to subsequent modification by the court except: (1) As prescribed by the agreement; or (2) as subsequently consented to by the parties.
23-2713. Effective date as to remarriage; effect of a decree in another state.
(a) Any marriage contracted by a party, within or outside this state, with any other person before a judgment of divorce becomes final shall be voidable until the decree of divorce becomes final. An agreement which waives the right of appeal from the granting of the divorce and which is incorporated into the decree or signed by the parties and filed in the case shall be effective to shorten the period of time during which the remarriage is voidable.
(b) A judgment or decree of divorce rendered in any other state or territory of the United States, in conformity with the laws thereof, shall be given full faith and credit in this state, except that, if the respondent in the action, at the time of the judgment or decree, was a resident of this state and did not personally appear or defend the action in the court of that state or territory and that court did not have jurisdiction over the respondent's person, all matters relating to maintenance, property rights of the parties and support of the minor children of the parties shall be subject to inquiry and determination in any proper action or proceeding brought in the courts of this state within two years after the date of the foreign judgment or decree, to the same extent as though the foreign judgment or decree had not been rendered. Nothing in this section shall authorize a court of this state to enter a child custody determination, as defined in K.S.A. 2015 Supp. 23-37,102, and amendments thereto, contrary to the provisions of the uniform child custody jurisdiction and enforcement act.
(a) Admissions. Upon the trial of the action, the court may admit proof of the admissions of the parties to be received in evidence, excluding such as shall appear to have been obtained by connivance, fraud, coercion, or other improper means.
(b) Marriage. Testimony admissible to prove a common-law marriage may be received as evidence of the marriage of the parties.
(c) Husband and wife as witness. Either party to the action shall be competent to testify upon all material matters involved in the controversy.
(d) Corroborating testimony. A decree of divorce, separate maintenance or annulment may be granted upon the uncorroborated testimony of either party or both of them.
23-2715. Costs and attorney fees.
Costs and attorney fees may be awarded to either party as justice and equity require. The court may order that the amount be paid directly to the attorney, who may enforce the order in the attorney's name in the same case.
23-2716. Restoration of name.
Upon the request of a spouse, the court shall order the restoration of that spouse's maiden or former name. The court shall have jurisdiction to restore the spouse's maiden or former name at or after the time the decree of divorce becomes final. The judicial council shall develop a form which is simple, concise and direct for use with this paragraph.
23-2717. Obligation to comply with orders not suspended by other party's failure to comply.
If a party fails to comply with a provision of a decree, temporary order or injunction issued under articles 27 through 38 of chapter 23 of the Kansas Statutes Annotated, and amendments thereto, the obligation of the other party to make payments for support or maintenance or to permit visitation or parenting time is not suspended, but the other party may request by motion that the court grant an appropriate order.
23-2718. Interspousal tort.
(a) An action for interspousal tort shall not be consolidated with an action under K.S.A. 2015 Supp. 23-2701 through 23-2718, 23-2802, 23-2901 through 23-2905, 23-3001 through 23-3006, 23-3119, 23-3120, 23-3201 through 23-3222, 23-3301, 23-3402, 23-3403, 23-3510 and 28-179, and amendments thereto, unless the parties agree to consolidation and consolidation is approved by the court.
(b) A decree of divorce or separate maintenance granted under subsections (a)(1) or (3) of K.S.A. 2015 Supp. 23-2701, and amendments thereto, shall not preclude an action for interspousal tort.
(c) A decree of divorce or separate maintenance granted under subsection (a)(2) of K.S.A. 2015 Supp. 23-2701, and amendments thereto, shall preclude an action for interspousal tort based upon the same factual allegations. An action for interspousal tort which has been finally determined shall preclude an action under subsection (a)(2) of K.S.A. 2015 Supp. 23-2701, and amendments thereto, based upon the same factual allegations.