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Will a Kansas Court Consider Infidelity During a Divorce?

Weber Law Jan. 4, 2015

Infidelity is one of the most common causes of divorce which makes it predictable that this is an important issue to those involved in the marital dissolution process.  The importance of this issue to an aggrieved spouse is intensified by the emotions aroused by marital infidelity.  When a betrayed spouse is dealing with the pain, jealousy and anger often generated by infidelity, a judge’s refusal to consider this issue can be extremely frustrating.  While infidelity might be the most significant motivation for a divorce, adultery generally has almost no impact on the resolution of issues in a marital dissolution in Kansas.

Many states have shifted to “no fault” divorce in recent decades, so the issue of adultery is not relevant to financial issues, child custody decisions or other matters unless special circumstances apply.  While Kansas is a “hybrid” state that allows for both no fault and fault based divorce.  The grounds for a fault based divorce are very limited, and adultery is not a grounds for divorce in Kansas.

Infidelity also is irrelevant to the financial issues in a Kansas divorce except for extreme circumstances where the conduct of the unfaithful partner is extremely egregious.  The Kansas Court of Appeals has indicated, “fault” is not to be considered in determining the financial aspects of the [divorce] unless the conduct is so gross and extreme that the failure to penalize therefore would, itself be inequitable.”  In Re Marriage of Vandenberg, 43 Kan. App. 2d 697, 712 (Kan. Ct. App. 2010).  The court did not consider an unfaithful spouse who moved in with her lover to rise to this standard.  In other words, typical adultery situations will not affect the equitable distribution of property, alimony, child custody, child support or other divorce issues.

Outside of extremely egregious circumstances, infidelity might be relevant if a spouse engages in the “waste” of marital assets or compromises a child’s best interest.  If evidence is produced that an unfaithful spouse was diverting marital assets to a paramour outside the marriage, this might justify “equalization” by the judge when determining an equitable division of property.  Similarly, a cheating parent who exposes his or her children to supervision by an unsafe caregiver might experience unfavorable “residential custody” orders.  Further, parents who fail to exercise parenting time because they are with a paramour might receive less parenting time.  These examples illustrate that it is the financial or parenting conduct that is considered by the judge rather than the inappropriate relationship.

The process of determining alimony (also known as “spousal maintenance”) and/or child custody depend on a litany of factors.  Alimony does not appear on the list of factors that a judge considers when issuing orders regarding either of these issues.  Because an experienced Kansas divorce attorney will have knowledge of the relevant factors and how a judge evaluates evidence in light of these criteria, your Wichita divorce lawyer can have a profound impact on the outcome of your divorce.

If you have questions about the divorce process and/or your rights, we welcome the opportunity to answer your questions and address your concerns.  We invite you to call us or submit an inquiry form through this website to schedule your initial consultation.