No Fault Divorce Update

In August of 2011 I posted a blog discussing the Kansas no-fault divorce statute. At the time there was some discussion the Kansas legislature would attempt to eliminate no-fault divorce in Kansas. Ultimately the 2012 and 2013 legislative session did not make any substantive changes to the law. However, since the original blog post, there has been a technical change to Kansas family law. The statutes which govern domestic relations cases have been moved in the statute book and our now found in Chapter 23 of the Kansas Statutes Annotated (K.S.A.), rather than in Chapter 60. The actual law has not changed but it is now found in a new place in the books. My original blog referenced the old statutory section in discussing divorce requirements. The section can now be found at K.S.A. 23-2701. The legal analysis of the issue has not changed, at least for now.

The 2014 legislative session is in full swing and a new bill has been proposed to remove “incompatibility” as a grounds for divorce. Kansas law currently list three grounds for divorce: 1. incompatibility; 2. failure to perform a material marital duty or obligation; of 3. incompatibility by reason of mental illness or mental incapacity of one or both spouses. K.S.A. 23-2701(a)(1-3). House Bill 2604 would remove incompatibility from this list and add 8 new grounds. These proposed grounds are: 1. the respondent has been convicted of the crime of adultery; 2. the respondent has been convicted of a felony for a crime against a person; 3. the respondent has been convicted of a felony sex offense; 4. respondent has abandoned the matrimonial domicile for one year and consistently refuses to return; 5. respondent has physically or sexually abused the petitioner or a child of either party; 6. both spouses have been living apart continuously for two years without reconciliation; 7. both spouses have been living apart for one year after a decree of separate maintenance has been ordered; 8. both spouses agree to a no fault divorce.

I have spoken to a couple of legislators and it appears, at this point, the bill will probably not make it out of committee to even get a vote in the house. However, it does appear this is going to be a recurring issue, so it is worth paying attention to going forward.

There has been a great deal of objection to the bill focused on the removal of “incompatibility” as basis for divorce because the proposed grounds require parties to air their disagreements in a public forum. The biggest casualties of this sort of fight would be the children of the marriage. Forcing the parents to allege and prove physical abuse, for example, will escalate the tensions already in existence. This heightened tension inevitably seeps down to the parties’ relationships with their children. And children will probably be called to provide testimony more often as a result.

I also think it is interesting the see what new grounds are listed. For example, adultery itself is not grounds for divorce, only conviction of the crime of adultery is grounds. Adultery is almost never charged as a crime, so this ground would  rarely, if ever, come into play. The criminal conviction grounds both require conviction of a felony. Misdemeanor convictions would not count as a basis for divorce. Under Kansas law, Patronizing a Prostitute is a Class C misdemeanor (K.S.A. 21-3515) and Sexual Battery is a Class A misdemeanor (K.S.A. 21-3517). Conviction of either of these sex crimes would not be grounds for a divorce under this proposed bill. The abandonment grounds requires the respondent to “consistently” refuse to return. Does this mean the party who wants the divorce has to show they  repeatedly begged them to return? It is not at all clear. The abuse grounds does not list verbal, emotional or mental abuse as potential grounds for divorce. The parties can seek divorce if they have lived apart for two years or if they have lived apart for one year after a decree of separate maintenance has issued. This two-year requirement will likely cause more people to actually commit adultery as they will be separated but not divorced. Most people do not wait two years before finding a new relationship. The shortened time frame requires a decree of separate maintenance, which would mean parties would have to go through two court proceedings, pay extra court and attorney’s fees, and make multiple court appearances. This would require additional court time and an expansion of the court’s budget. Finally, the requirement that both parties agree to a no-fault divorce means the party who is not filing has a significant negotiating edge. They could, for example, say “I will only agree to a no-fault divorce if you agree to leave my retirement account alone”.

The goal of “no-fault” divorce is to make the process less about mud-slinging and name-calling. Hopefully, in time, the parties will be better able to communicate regarding the well-being of their children. It is a painful and difficult process; no-fault divorce tries to reduce the pain where possible. The interesting aspect of this proposed bill is that it seems to make marriage less about the loving relationship and more about a contract. If you are no longer in a happy, loving marriage you cannot get out because  you made a deal and now you are stuck with it, at least until one of the grounds applies and you can get out.

I understand the goals of the legislators proposing these revisions. They want to do what they can to preserve marriages and protect the families affected by divorce. However, this bill will not achieve these goals. Unfortunately there is a chance it would actually harm the very people it is intended to protect. I think it is better course for the legislature to decide to stay out of this issue and let people decide for themselves whether or not they should remain married.

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