Adultery in Kansas: Does Cheating Affect Alimony?

If you’re getting divorced in Kansas and you or your spouse has cheated, you’ll need to know how the adultery will affect the judge’s decisions about your case, including alimony, custody, and child support.

By , Retired Judge

Adultery can cause a marriage to become an emotional nightmare, and it's a common cause of divorce. When you're ending your marriage because one (or both of you) has cheated on the other, it's possible that the adultery will impact the outcome of your divorce, including any potential award of alimony. Every state's alimony laws are different; here's a breakdown of how Kansas' alimony laws address adultery.

An Overview of Alimony in Kansas

Divorce can cause financial turmoil and reveal hard truths about each spouse's post-divorce financial prospects. Often, one spouse will be in a better position than the other, with, for example, a higher-paying job, a more promising career path, or access to more assets.

The courts attempt to balance these financial inequities by ordering the spouse who is more financially sound to pay alimony (referred to as "maintenance" in Kansas) to the other. The main goal of alimony is to ensure that both spouses can provide for their own needs after the divorce.

Kansas divorce law gives judges a lot of flexibility when it comes to awarding alimony. In Kansas, judges can award alimony that they believe is "fair, just, and equitable under all of the circumstances" of each case. (Kan. Stat. Ann. § 23-2902 (a) (2021).) That's pretty open-ended. Even so, there are certain factors that judges almost always consider when making a decision about alimony. Some of these are:

  • the age of the spouses
  • each spouse's current earnings
  • each spouse's ability to earn a living in the future
  • the length of the marriage
  • the property owned by the spouses
  • each needs of each spouse
  • the family ties and obligations of each spouse
  • the spouses' overall financial situation
  • each spouse's health
  • each spouse's ability to work, and
  • the amount of time necessary for a spouse to acquire additional job skills, if needed.

The last item on the list is important: Most judges in Kansas (and virtually every other state) aim for alimony to last for as short a time as possible, often for only as long as it takes the receiving spouse to become financially self-sufficient. Even so, Kansas judges aren't allowed to award alimony for a period longer than 121 months. (Kan. Stat. Ann. § 23-2904 (2021).)

Kansas' 121-month limit on alimony might be unfair at times. Let's say, for example, that there's a lengthy marriage, and the spouse seeking alimony hasn't been employed for a while. If that spouse isn't currently a good candidate for employment (perhaps because of age or illness), it's unreasonable to expect that spouse to become financially independent. So there's a possible exception to the time limit: As long as the original alimony order gives the court the right to review the terms down the road, the receiving spouse can file a motion (formal legal request) asking the court to extend the alimony award. The judge can grant the request if the judge believes an extension is warranted. The receiving spouse can keep repeating this request indefinitely (each additional extension can't be more than 121 months).

Under Kansas law, judges can order alimony to be:

  • a lump sum payment
  • a periodic payment
  • a percentage of earnings, or
  • paid in any other form the court believes is appropriate.

Does Committing Adultery in Kansas Affect Whether the Court Will Grant a Divorce?

In order to obtain a divorce in Kansas, it doesn't matter who's to blame for the failure of the marriage. All you have to do to get divorced in Kansas is prove that you and your spouse are incompatible. (Kan. Stat. Ann. § 23-2701 (2021).) No pointing of fingers; no airing of dirty laundry—you just can't get along. This minimal requirement tends to diminish the anxiety in a divorce, and usually helps lower legal fees as well.

Kansas also allows two other (fault-based) grounds (reasons) for divorce:

  • Failure to perform a material marital duty or obligation. This reason is about as generic as you can get, and likely encompasses 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 specifically list those standard fault grounds, none of them—in and of themselves—can serve as a basis for getting a divorce. (Kan. Stat. Ann. § 23-2701 (2021).)
  • Incompatibility based on a spouse's mental illness or mental incapacity. For your divorce to proceed on this ground, you must demonstrate that your spouse has been confined in an institution for at least a two-year period or that there has been a judgment that the spouse suffers from mental illness or incapacity. (Kan. Stat. Ann. § 23-2701 (2021).)

Does Adultery Affect Alimony in Kansas?

Kansas courts rarely consider marital fault, including adultery, in making decisions about alimony. The Kansas Court of Appeals said that fault shouldn't be considered in determining the financial aspects of a divorce unless the conduct was "so gross and extreme" that not penalizing the offending spouse would be unfair. (In re the Marriage of Vandenberg, 43 Kan. App. 2d 697 (Kan. Ct. App. 2010).)

The Vandenberg case did not involve "gross and extreme" behavior: The wife fell in love with someone new, left the marital home, and lived with the new partner. The husband did not make the argument that this behavior was "gross and extreme," nor did the court on its own find that it was.

Does Adultery Affect Custody or Child Support in Kansas?

In most Kansas divorce cases, the fact that a spouse has cheated does not affect custody or child support. However, it's important to remember that when it comes to custody matters, judges must prioritize the best interests of the children. So when a parent's adulterous behavior compromises a child's health or safety, it could certainly affect a judge's custody decision. For example, if a parent leaves a young child unattended because that parent is off having an extra-marital affair, it's likely a judge would be less inclined to entrust the child's well-being to that parent.

When it comes to child support, Kansas child support guidelines advise that the amount of time a child spends with a parent who is obligated to pay child support can factor into a calculation of the support amount. As a rule, the more time a parent has with a child, the less child support the parent will have to pay, because they're already spending money on the child during parenting time (also known as "visitation"). If the court denies or significantly limits parenting time because of a parent's adulterous behavior, the offending parent will likely be paying more money for support.