If you're facing the end of your marriage because you or your spouse had an extramarital affair, you might be wondering whether the infidelity could affect your divorce. It's natural to want to punish a spouse who has cheated on you. Although Kansas courts won't let spouses use the divorce process as punishment, a spouse's cheating could impact your case.
The no-fault ground for divorce is "incompatibility." This basically means that you and your spouse can't get along, and there's no reasonable prospect of that changing.
Kansas also allows you to file for a fault divorce based on your spouse's "failure to perform a material marital duty or obligation." This probably includes some of the traditional fault grounds for divorce, such as physical or mental cruelty, desertion—and, of course, adultery. But because the statute doesn't reference those individual fault grounds, you can't specifically list them—including adultery—as a ground for getting a divorce. (Kan. Stat. § 23-2701 (2022).)
The Kansas statute regarding alimony (also known as "maintenance") is about as concise as you can get. It simply authorizes judges to award an amount of alimony they find "to be fair, just and equitable under all of the circumstances." (Kan. Stat. § 23-2902(a) (2022).)
Fortunately, Kansas courts have weighed in what this means, by setting out factors judges should consider when making decisions about alimony, including the length of the marriage and the spouse's earning potential. The courts have also held that judges should not consider fault (such as adultery) when making decisions about the financial aspects of a divorce unless the conduct was "so gross and extreme" that it would be unfair not to penalize the offending spouse. (In re the Marriage of Vandenberg, 43 Kan. App. 2d 697 (Kan. Ct. App. 2010).)
In the Vandenberg case, the wife left her husband and moved in with a new partner. The court didn't find that behavior to be gross and extreme. So adultery isn't likely to impact an alimony award in Kansas.
Kansas uses the "equitable distribution" rule for dividing a couple's property in divorce. That means that judges distribute assets based on what they believe is fair under the circumstances of each particular case. It's important to note that "equitable" doesn't necessarily mean a 50/50 split.
Kansas law lists certain factors that judges must consider when they're deciding what would be a fair division of the spouses' property. The list doesn't include a spouse's misconduct (like adultery). However, it does include "dissipation of assets." (Kan. Stat. § 23-2802(c)(8) (2022).)
So adultery might indirectly affect a judge's decision about property division if the cheating spouse squandered money on the affair, such as with lavish gifts or travel. Because that could mean there's less property available for distribution in the divorce, the judge might decide to award the "innocent spouse" a greater share of the assets to make up for the loss.
Decisions about child custody and parenting time (visitation) in Kansas, as in all states, must be based on what would be in the children's best interests. Kansas law sets out a list of factors for judges to consider when making custody decisions. Adultery isn't on the list, but the law also allows judges to take "all relevant factors" into consideration. (Kan. Stat. § 23-3203(a) (2022).)
So the question becomes whether a parent's infidelity might be a relevant issue in custody decisions. It could be argued that having an affair is a moral failing or, at least, shows a lack of judgment. But does that impair the adulterer's ability to be a good parent? In most cases it probably doesn't—which means it won't affect a judge's decision about parenting time or where the child will live most of the time. These days, judges typically understand how important it is for most children's well-being to have an ongoing relationship with both parents after a divorce.
But certain circumstances could tip the scales the other way. For example, you could argue that it wouldn't be good for the child's well-being to spend much time with a parent who became completely uninvolved in the child's life because of the new relationship, or when that new relationship has exposed the child to abusive behavior.
Child support in Kansas is calculated under the state's child support guidelines. Some of the controlling factors are the parents' income, childcare expenses, the cost of medical insurance, and the children's living arrangements, including how much time they spend with each parent. Typically, the more time a child stays with a parent, the less child support the parent would be responsible for, because the parent is already spending money on the child during parenting time.
Because the support payments are meant for the children's needs—not as a reward or punishment for the parents' behavior—either parent's adultery won't play a direct role in determining which of them will pay support or the amount of the payments. Indirectly, however, in the rare cases where a parent's adultery has caused a judge to limit the time that parent spends with the children, because of concerns about the children's well-being, that might result in the parent having to pay more child support than would have been owed under a less restricted custody/parenting time arrangement.
Yes. Under Kansas law, adultery is considered a Class C misdemeanor. (Kan. Stat. § 21-5511 (2022).) However, prosecution for the violation is probably rarely, if ever, seen.
Many people find it devastating to discover that their spouse has had an extramarital affair. But if you've decided to end your marriage as a result, you should know that it's not a good idea to try to use the divorce proceedings to punish your spouse. It's bound to increase the cost of divorce, and it will make the entire process more stressful, for you as well as your kids. It also means that you wouldn't be able to get an uncontested divorce in Kansas, which is almost always a lot quicker, easier, and cheaper than a traditional contested divorce.
Despite these drawbacks, if you think that filing for divorce based on one of Kansas's fault-based grounds might benefit you, you should speak with a lawyer. A local, experienced family law attorney should be able to evaluate your case and explain whether it will be in your interest to file for a fault-based divorce. And if you ultimately decide to take that route, it's critical to have a lawyer prepare and present the kind of evidence you'll need to prove your claims. (Here are some tips on questions to ask before you hire a divorce lawyer.)
Similarly, if you're being accused of adultery as it relates to child custody or property division, you'll almost certainly need a lawyer to protect your interests and get a fair result—whether or not you actually had an extramarital affair.