If adultery is at the root of your divorce plans, you may be wondering whether the adultery will impact any aspect of the divorce.
This article provides an overview of alimony in Kansas and reviews whether either spouse's adultery can impact an alimony award. If you still have questions after reading this article, you should contact an experienced family law attorney in your area for advice.
Alimony in Kansas
Many years ago, Kansas courts awarded alimony as punishment to a guilty spouses who committed some kind of wrongdoing (like adultery or chronic abuse of alcohol) or as monetary “damages” for situations where the marriage contract was breached or prematurely ended. But as times changed, lawmakers saw that many spouses and their children were living in poverty because they didn’t receive alimony or weren’t getting enough support. That prompted a change in the law.
Today, alimony (which is technically called “maintenance” in Kansas) is the money that one spouse ("the obligor") pays to the other ("the obligee") as part of the divorce. The obligor provides future support for the obligee after the end of the marriage, until the obligee can become self-supporting. Alimony also has the effect of preventing inequality by eliminating situations where a spouse with greater earning power and access to a lot of assets walks away from the marriage in a comfortable position, while the other spouse is left impoverished.
There are several different types of alimony available in Kansas:
- alimony pendente lite (alimony awarded while the divorce is still pending and no final order has been issued yet)
- temporary alimony (alimony awarded only for a certain period of time)
- rehabilitative alimony (a form of temporary alimony intended to help the obligee to become self-supporting by regaining job skills or enhancing education and training), and
- permanent alimony (alimony that’s capped at 121 months and typically awarded after the end of a long-term marriage).
Get more detailed information how alimony is determined and calculated in Kansas, see Understanding and Calculating Alimony in Kansas.
What Role Does Adultery Play in a Kansas Divorce?
Kansas is a “hybrid” state that recognizes both fault-based and no-fault “grounds” (legal justifications) for divorce.
A "fault" divorce is based on the wrongful behavior (“marital misconduct”) of a “guilty spouse” against an “innocent spouse.” Examples of fault include abandonment, abuse, cruelty, chemical dependency, and adultery, among others.
American divorce was traditionally fault-based, but over the last several decades, more and more states have been moving toward a “no-fault” model. In no-fault divorce, all that matters is that one or both spouses include a statement in their divorce paperwork to the effect that their marriage has broken down and can’t be saved. There’s no need to air any dirty laundry about why the marriage failed.
Kansas allows divorce when parties are “incompatible.” This is a no-fault ground that means a married couple simply can’t get along anymore. Kansas also allows a few, very limited fault-based grounds. They are:
- failure to perform a “material” (relevant) marital duty, or
- incompatibility because of the mental illness or mental incapacity of one or both spouses.
Adultery is not a ground for divorce so judge's won't consider it when they decide whether to grant a divorce.
How Does Adultery Affect Alimony Awards in Kansas?
Marital fault, including adultery, is only rarely considered by Kansas courts that are making decisions about alimony. The Kansas Court of Appeals recently noted that “fault is not to be considered in determining the financial aspects of the [divorce] unless the conduct is so gross and extreme that the failure to penalize therefore would, itself, be inequitable.” In re the Marriage of Vandenberg, 43 Kan. App. 2d 697, 712 (Kan. Ct. App. 2010). This means that marital misconduct like adultery can only be factored into alimony decisions when it’s so exceedingly awful that fundamental fairness requires the court to punish the guilty spouse.
The court then noted that when a wife was involved in a relationship with another person, left her husband, and moved in (“cohabited”) with the other person, that conduct didn’t rise to the level of “gross and extreme” behavior. Therefore, from the Vandenberg case, we can infer that the kind of “gross” misconduct that’s punishable through alimony must be unusually horrible and not the kind of run-of-the-mill adultery situation where a spouse falls in love with a new romantic partner, leaves the marital home, and cohabits with the new partner.
In Kansas, alimony awards are normally driven by the obligee’s need and the obligor’s ability to pay. Therefore, instead of looking at adultery and other kinds of marital misconduct, family court judges are required to consider each of the following factors when making decisions about alimony:
- the age of the spouses
- the spouses’ present and prospective earning capacities
- the length of the marriage
- the property owned by the spouses
- the spouses’ needs
- the time, source, and manner of acquisition of the spouses’ property
- the spouses’ family ties and obligations, and
- the parties overall financial situation
The above factors are mandatory, but some Kansas courts will also consider the spouses’ health, each spouse’s ability to work, whether one spouse has income-producing assets (like rental units), the standard of living during the marriage, the comparative earning capacity of each spouse, and the amount of time necessary for a spouse to acquire additional job skills. Obviously these extra considerations are highly relevant too.
If you have questions about alimony and adultery in Kansas, please contact an experienced family law attorney for help.
For self-help purposes, you can look at the Kansas Judicial Branch Self Help Information site and at the official court forms. You can also browse the Kansas Legal Services site for resources and assistance designed to help low-income Kansans with legal problems. Finally, you can review the Kansas Statutes to read the laws for yourself.