Property Rights in an Abandonment Divorce in Kansas

by Heather Frances J.D. Google
A court can allow you to stay in your home while your divorce is pending.

A court can allow you to stay in your home while your divorce is pending.

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In Kansas, property is typically divided equitably between the spouses, regardless of the reason for the divorce. Since abandonment is not grounds for divorce in Kansas, your divorce must fit into one of the grounds Kansas recognizes. Then, the court can use many factors to determine how property should be divided between you and your spouse.

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Grounds

Kansas recognizes three grounds for divorce: incompatibility, failure to perform a material marital duty or obligation, and incompatibility due to mental illness or incapacity. Most divorces in Kansas are filed under “incompatibility,” since this does not require you to prove conduct such as abandonment, adultery, abuse or other traditional grounds for divorce. Although abandonment and desertion are not named grounds for divorce in Kansas, you may file for divorce anyway if you and your spouse are incompatible.

Filing for Divorce

Either spouse can initiate the divorce by filing a divorce petition with the court in the county where either spouse lives. If you don't know where your spouse is, you can file where you live. Or, if your spouse abandoned you financially but you know where he lives, you may file in the county where he lives. The spouse who initiates the divorce can ask the court to decide temporary issues until the final divorce decree is issued. These temporary issues – such as whether you can remain in the family home – can be decided without initial input from your spouse.

Property Division

Kansas courts do not determine property division based on marital misconduct. Therefore, you won’t necessarily receive more property in your divorce because your spouse abandoned you. Some factors the court considers to determine an equitable division are the spouses' ages, duration of the marriage, spouses’ earning capacities, circumstances of the property’s acquisition, family ties and spousal support. The court may also have local guidelines that provide additional factors to be considered. After considering these factors, the court will order an equitable division of property, although this is not necessarily an equal division. Typically, the court will divide all marital assets and debts as equally as possible. Property that you acquired before you married, or property you received by gift or inheritance during the marriage, will usually be set aside for you without an offset for your spouse. For example, if you owned your home before you married, the judge may allow you to keep that property without providing a credit to your spouse.

Divorce by Publication

If you spouse abandons you and you don’t know where he is, you can still file for divorce. This type of divorce – called a divorce by publication – allows you to provide notice of the divorce to your spouse by publishing notice in the local newspaper instead of serving divorce papers on your spouse. You must request permission from the court to provide notice by publication by filing an Affidavit for Service by Publication. Then, if the judge grants your request, you must properly publish the notice, obtain proof of publication from the newspaper and file that proof with the court. If your spouse does not respond to the notice placed in the paper, the court may proceed with granting your divorce petition.