Fault Versus No Fault Divorce in Kansas

Prior to the 60s, most countries which allowed divorce still required the party seeking the divorce to prove that the other spouse did something causing the marriage to fail. In other words, they had to prove fault and that allowed them to argue that the marriage was incompatible. Most countries still require this showing of fault. However, the current trend in the United States is toward no-fault divorce.

What is a Fault Divorce?

When the court evaluates a fault divorce, the allegations of blame and various offenses will be considered and evaluated. This can clearly turn ugly very quickly. Comparative rectitude is when the court evaluates and compares the actions of both the parties and tries to determine which spouse is more at fault.

The court may consider evidence of misleading or dishonest acts, such as:

• Collusion (working together to get the divorce)
• Condonation (approving the offense)
• Connivance (tricking someone into committing an offense)
• Provocation

What is a No Fault Divorce?

In these jurisdictions, if one party simply claims that the parties are incompatible, the court must allow the divorce. Therefore, the court does not generally consider fault, even if one spouse was cheated on or abused.

There are times when some courts may still consider the bad acts of a party, however. This could potentially affect how the property is divided, such as the assets, bank accounts, and debts. Also, the "fault" of one spouse may actually affect custody issues for the children. While it is not meant to be punitive, it simply could weigh in on the court's evaluation when determining what is in the best interest of the children involved. For example, the court would obviously consider things including violent tendencies, ability to care for the children, and drug or alcohol addictions.

What Divorces are Allowed in Kansas?

While many consider Kansas as a no-fault divorce jurisdiction, this is actually a partially incorrect. Kansas has several laws in place regarding proving fault in a divorce. For example, the statutes require one spouse to state that the parties are incompatible. However, a spouse is allowed to allege failure of one side to "perform a material marital duty or obligation." Kansas also does not encourage that the grounds for divorce to be detailed in the documents. In other words, one spouse should not be publicly detailing the other spouses faults in the pleadings and documents of the court file.

When the court divides the debts and assets, it should be "just and reasonable." Kansas does this by determining the length of the marriage, ages of the party, future potential salary, and so forth. The court will consider fault when dividing assets when one spouse caused a "dissipation of assets." This is when one party has given away or wasted a substantial part of the assets. In the overwhelming majority of cases, this is the only circumstance when it is advisable to discuss fault at length.

Examples of actions that may dissipate assets include:

• Gambling addiction
• Refusal to work
• Needless spending