Common Law Divorce & Kansas Custody Rules

By Mary Jane Freeman

When we think of marriage, we often picture a ceremony presided over by a judge or clergyman before family and friends. However, some states still recognize marriages that are not formed in this manner, but rather arise from a couple living together and holding themselves out to the public as married. Such relationships are known as common law marriages, and Kansas is one of the few remaining states that still recognize them. In Kansas, common law spouses are subject to the same divorce and custody rules as traditionally married couples.


Although Kansas recognizes common law marriage, there are certain requirements a couple must meet before the state will grant their relationship common law status. Not only must the couple consider themselves to be married, they must also hold themselves out to the public as married. These conditions may be evidenced in a variety of ways, including the couple's living together (although no minimum period of cohabitation is required), raising children together, using the same surname, wearing wedding rings, filing joint tax returns, holding joint checking and savings accounts, and listing each other as spouses on health plans, retirement accounts and life insurance policies.

Common Law Divorce?

Once the validity of a couple's common law marriage is established, the relationship carries the same legal rights and responsibilities as traditional marriages. As a result, common law spouses who no longer wish to be married must obtain a divorce. However, there is no such thing as a common law divorce. Instead, common law spouses must file a petition for divorce in district court just like any other divorcing couple. In the petition, the filing spouse must state her grounds for divorce, such as incompatibility, and the relief being sought, which may include property, alimony, child support and custody.

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In Kansas, courts typically award parents joint legal custody. This means both parents share the right to make important decisions concerning their child's welfare, such as those related to religion, education and health care. Legal custody may be awarded during divorce regardless of whether the parents are common law spouses or "regular" spouses. The court may also award residential custody, with whom a child resides, to both parents; however, it is much more common for Kansas courts to award residential custody to one parent while granting visitation rights to the other. Common law spouses, like other spouses, are free to come up with their own parenting agreement. If they are unable to do so, the court will step in and make the decision for them.

Best Interests of the Child

If common law spouses are unable to reach a custody agreement, the court will make this decision on their behalf. The court will base its determination, after evaluating a variety of factors, on what arrangement would be in the best interests of the child. Such factors include the wishes of the parents and child, the child's relationship with parents and siblings, the child's adjustment to home, school and community, the ability of each parent to respect and nurture the other parent's relationship with the child, and any history of child or spousal abuse. When evaluating these factors, the court makes no distinction between common law and traditional spouses.

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