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The
“short” answer is, “Yes”; but it is rarely a good idea. Kansas law provides that a divorce can be granted for “incompatibility” or “fault.”
“Incompatibility”
is a “no fault” ground for divorce. In other words, it is not necessary to
allege or prove that either spouse was at “fault” for the divorce – such as
that there existed adultery, extreme cruelty, abandonment, physical abuse,
or any other "fault" grounds, even though that conduct may have
occurred. A person requesting divorce for “incompatibility” is entitled to
the divorce.
Kansas law provides specific reasons
for which someone can ask that their divorce be granted
on “fault” grounds. If a divorce petition alleges “fault” grounds, the
Kansas statutes require that these grounds be stated in the generic
statutory form (such as "failure to perform a material marital
duty"), rather than detailing out what is alleged to have occurred. If
details are included, the petition is not allowed
and will be stricken if filed.
Many
people want to file for divorce claiming that they did not cause their divorce, and that the other person was at “fault” for or
did something that caused their divorce. This usually means that spouse has
not come to terms with the emotional effects of the marriage breakdown.
Assertion
of fault grounds for divorce is typically not advisable and will usually
not affect the trial court’s decision on any “ultimate” issue (i.e. division
of property, award of spousal support or decision on child custody issues).
Kansas
appellate court cases state that trial courts cannot consider “fault” in
making any decision in the divorce action, unless that ground has some
specific relevance to the particular issue considered.
The
usual effect of one spouse alleging “fault” in a divorce is to increase the
costs in the case, slow down the process, polarize the spouses and enmesh
them in their arguments and disagreements, rather than leading to an quick
or easy determination of any issues in the case. The assertion of “fault”
grounds in a divorce usually increases the cost of divorce anywhere from
three to ten times (or more) than a divorce in which the ground for divorce
is “incompatibility.”
Notwithstanding
this caveat, there may be some circumstances under which such
"fault" grounds should be alleged.
However, these situations are very rare and often raise more issues and
anger than they are worth in benefit. You should discuss this issue with
your attorney if you feel it may be applicable to your case.
If a
divorce is requested on either the grounds of
"incompatibility" or on a fault ground, the court is required to
grant a divorce at the end of the case. Occasionally one spouse will oppose
the divorce or say that they will not give the other spouse a divorce or
state that the parties are not incompatible. While
one spouse may object to the divorce, Kansas law requires that the court grant
the divorce if it is ultimately requested by one of the
parties. The parties involved do not have the power to
"give" or "not give" a divorce. The same grounds for
divorce are applicable to a petition for separate maintenance.
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