We've all heard about dramatic divorces that have dragged on and taken years to complete. If you're going through a divorce in Kansas, you may be wondering how to avoid such delays in your case. This article provides general information about the alternative "emergency divorce" process and when it may be available. An "emergency divorce" in Kansas follows the same basic procedure as a regular divorce but allows the person seeking the divorce to skip the waiting period and move the final hearing up.
Kansas courts typically require at least 60 days to pass after the filing of a divorce before they will hold any hearings or declare the divorce final. However, in some cases, it's possible to speed the process up, either by including a request for an emergency divorce in your "petition" (legal paperwork requesting a divorce) or filing a motion for one later on. If the court finds that an emergency exists, the judge can hear the divorce case immediately. (Kan. Stat. Ann. § 23-2708.)
Even without an emergency, divorces in Kansas generally move through the system pretty quickly. Kansas requires at least one spouse to live in the state for at least 60 days before you can file for divorce, which is a shorter residency requirement than the majority of states. (Kan. Stat. Ann. § 23-2709.) State law also allows the "petitioner" (the spouse requesting the divorce) to choose between a no-fault and a fault-based complaint.
A no-fault divorce in Kansas allows a couple to go forward with their divorce without getting into why they no longer wish to be married. For the court to accept the divorce petition, the requesting spouse must state that the couple is no longer compatible.
A fault-based divorce, rarer than a no-fault divorce, requires at least one of the spouses to claim and prove that the other spouse caused the divorce by engaging in misconduct that led to the breakup. Grounds for fault-based cases include mental illness and failure to perform a material marital duty or obligation. (Kan. Stat. Ann. § 23-2701.)
To ensure fairness, Kansas requires that anyone who files a lawsuit provide a copy of it to the person they're suing, so you must "serve" (deliver) your divorce petition to your spouse. Typically, you can hire the county sheriff or a process server to complete service. If you can't find your spouse, you can pay to publish notice of the lawsuit in a local newspaper. Once received, your spouse then has 21 days to respond and can choose to file an answer, counterclaim, or both. Your spouse can waive "service" by filing the appropriate documents to the court. It's common for spouses to waive service when both spouses know about and agree to the divorce proceedings. (Kan. Stat. Ann. § 60-303.)
Once you file your divorce complaint and serve your spouse (or your spouse waives service), the court will wait at least 60 days before scheduling a hearing. Kansas law built in the 60-day "cooling off" period to give the spouses some time to work out a settlement and hopefully avoid a lengthy, expensive court battle. (Kan. Stat. Ann. § 23-2708.)
In some situations, even 60 days might be too long to wait for a divorce, and that's when an emergency divorce might be your best alternative. If you have a valid reason for needing a divorce before the mandatory time period is up and can present evidence to support your claims, the court can choose to hold a hearing right away. Asking the court for an emergency divorce requires a few extra steps than filing for a traditional divorce.
To request an emergency divorce, you must either include it in your initial petition or file a separate motion. In your petition or motion, you must explain the emergency and provide relevant evidence to back up your allegations. The court then sets a hearing to rule on whether the emergency is valid. Unless your spouse waives the right to file an answer, however, the earliest the court can hold the hearing is 21 days after you served your spouse. (Kan. Stat. Ann. § 23-2708.)
You'll need to prepare to prove to the court that your circumstances warrant speeding up the divorce process at the hearing. If you can persuade the court that your situation is truly an emergency, the judge will have the discretion (authority) to hear the divorce case right away. Because this hearing can proceed directly into the final divorce hearing, Kansas law requires the court to notify both sides of the emergency divorce determination hearing date at least seven days beforehand, so both spouses have time to prepare.
Kansas law gives judges broad discretion when it comes to deciding what qualifies as an emergency. In past divorce cases, judges have granted emergency petitions where there was evidence that one spouse was the victim of domestic abuse and circumstances where one spouse needed immediate access to financial support.
Judges won't approve every emergency divorce request, so it's important to learn about your family's alternatives. Not every divorce involves fighting and long court battles. On the contrary, if you and your spouse can work together to decide the important divorce-related issues, you can ask the court for an uncontested divorce. In an uncontested divorce, both spouses agree on the important terms, including child custody, child support, spousal support, property division, and the legal reason (ground) for your divorce. If you agree, you can hire an attorney to draft a divorce settlement agreement that you can present to the court. (Kan. Stat. Ann. §23-2712.)
Although the residency requirements and waiting periods still apply in an uncontested divorce, the legal process for an uncontested divorce will be markedly easier than a contested divorce (which is where the spouses can't agree and the judge must decide the issues for them.)
When you file for divorce, you complete a petition which includes your allegations to the court. For example, you would allege that the marriage is incompatible, that you would like custody of your children, and that your spouse can pay child support and alimony to support you and the children. Under Kansas law, you'll serve the petition to your spouse and provide proof of service to the court. Your spouse must respond to your allegations within 21 days by denying, accepting, or countering your requests. If your spouse fails to answer, you can request a default divorce (sometimes called a summary judgment) from the court.
In a default divorce, the judge has the option to grant the filing spouse the relief requested in the petition, including custody, support, and property division. While the judge could say no to any request that isn't reasonable, generally, the court will honor the default judgment process and grant the divorce with the requests to the filing spouse.
Under Kansas law, couples who wish to end their marriage can file for legal separation, also called separate maintenance. The legal separation process is nearly identical to traditional divorce, except at the end of the legal separation case, you and your spouse are still legally married. There is a myriad of reasons a couple might choose a legal separation instead of a traditional divorce. For example, some couples practice a religion that forbids divorce. Others may wish to stay legally married for the sake of their minor children or to continue health care coverage, but it's important to make sure your health care plan will continue to provide coverage if you do separate, some plans will not.
Regardless of the reason for choosing a legal separation, couples should understand that the same residency, legal grounds, waiting periods, and service requirements for divorce apply to legal separation.
If you have questions about whether your case might qualify for an emergency divorce or if you need more information about the divorce options available in your state, you should contact an experienced family law attorney in your area for advice.