Divorce in Kansas: Jurisdictional requirements and potential pitfalls
Kansas courts have jurisdiction to grant a divorce to the Petitioner (filing party) so long as the Petitioner has been a bona fide (that is, actual) resident of the State of Kansas for a period of not less than sixty (60) days prior to filing the petition for divorce. Even if the Court lacks jurisdiction to take any other action, so long as this one requirement is met, the Kansas courts have jurisdiction to order the parties divorces so long as it had jurisdiction over the Petitioner at the time the Petition was filed.
What happens when Kansas Courts have jurisdiction over the Petitioner, but not over the Respondent—for example, when the Respondent is a non-resident of the State? First, the Court always gas “in rem jurisdiction” or jurisdiction over the res (property jurisdiction). In a divorce action Kansas courts have jurisdiction over the property within the territory (geographical boundaries) of the State of Kansas—even when Kansas lacks jurisdiction over the Respondent (non-filing party). However, the imposition of financial obligations (debts) upon a party is NOT considered “property” within the exercise of the Court’s in rem jurisdiction.
When the Respondent is a non-resident of the State of Kansas but at least for some period during the marriage, resided with the Petitioner within the State of Kansas as Husband and Wife, then Kansas may exercise personal jurisdiction over the Respondent for purposes of divorce.
When Respondent is a non-resident and did NOT ever reside within the State of Kansas as Husband and Wife with Petitioner, then the State of Kansas may yet exercise personal jurisdiction over Respondent if Respondent is personally served with process within the territory of the State of Kansas, files a document in the divorce case, or hires and attorney who files an entry of appearance in the divorce case. (The last two instances constitute “waiver of lack of jurisdiction.”)
Even when the State of Kansas has jurisdiction over both parties (spouses) in a divorce case, in divorces involving children, the Court must also have subject-matter jurisdiction over the minor children born of the marriage to enter custody, parenting time and child support orders. If there have been no prior permanent custody or parentage orders pertaining to the minor children, then Kansas has original, “home state” jurisdiction if the minor children have resided within the State of Kansas for at least six month next preceding the filing of the Petition for Divorce. If prior permanent custody and parentage orders were entered in another state involving those same children, then that other State will likely have “continuing, exclusive jurisdiction” to modify the prior permanent custody and parenting time orders so long as one parent or the children remain residents of that other State. Because interstate and jurisdictional issues in divorce cases can be multi-layered, technical and highly complex, you should speak with a divorce attorney about the facts of your particular case to ensure sufficient jurisdictional grounds before your case is filed.
Contact our firm to speak with an experienced Johnson County, KS Family Law Attorney who understands and has dealt with the potential jurisdictional issues.