5. Even if it did apply, she continued to reprieve her past acts of extreme cruelty
b. No Fault Divorce
i. Now starting to look at is this relationship viable?
ii. Some no fault grounds 1. incompatibility
2. irreconcilable differences 3. irretrievable breakdown 4. living separate and apart 5. mutual consent
6. unilateral divorce iii. Kansas 60-1601
1. a) The district court shall grant a decree of divorce or separate maintenance for any of the following grounds: (1) Incompatibility; (2) failure to perform a material marital duty or obligation; or (3) incompatibility by reason of mental illness or mental incapacity of one or both spouses.
(b) The ground of incompatibility by reason of mental illness or mental incapacity of one or both spouses shall require a finding of either: (1) Confinement of the spouse in an institution by reason of mental illness for a period of two years, which confinement need not be continuous; or (2) an adjudication of mental illness or mental incapacity of the spouse by a court of competent jurisdiction while the spouse is confined in an institution by reason of mental illness. In either case, there must be a finding by at least two of three physicians, appointed by the court before which the action is pending, that the mentally ill or mentally incapacitated spouse has a poor prognosis for recovery from the mental illness or mental incapacity, based upon general knowledge available at the time. A decree granted on the ground of incompatibility by reason of mental illness or mental incapacity of one or both spouses shall not relieve a party from contributing to the support and maintenance of the mentally ill or mentally incapacitated spouse. If both spouses are confined to institutions because of mental illness or mental incapacity, the guardian of either spouse may file a petition for divorce and the court may grant the divorce on the ground of incompatibility by reason of mental illness or mental incapacity.
iv. Kansas 60-1602 – Annulment v. 60-1606 –
1. The court shall grant a requested decree of divorce, separate maintenance or annulment unless the granting of the decree is discretionary under this act or unless the court finds that there are no grounds for the requested alteration of marital status.
vi. Incompatibility
1. Definition – Burch
a. The court was presented the question of whether incompatibility is unilateral or bilateral to determine, in part at least, what place this defense may have in an action for divorce resting on the ground of incompatibility
b. Does not refer to those petty quarrels and minor bickering. Does refer to conflicts in personality and dispositions so deep as to be irreconcilable and to render it impossible for the parties to continue a normal marital relationship with each other
c. The disharmony of the spouses in their common life must be so deep and intends as to be irremediable
2. Various holdings indicate that the elements of incompatibility relate to the personal
differences, conflict of personality, and life style which would disrupt, destroy and derogate the legitimate goals of a matrimonial relationship
a. These differences must be of such a nature and so well entrenched as to make the differences irreconcilable. It is imperative in incompatibility cases to make the court aware of the cause
3. Proof rests on personal differences, conflicts of personalities and lifestyles
a. The shift from placing blame to looking at the viability of the marriage was a process that took some time -
vii. North v. North
1. The marriage was a disaster from the beginning. She often asked him to go to marriage counseling but he would refuse. She no longer had any respect for his sincerity; that she no longer loved him. They had an unsuccessful sexual relationship – he was financially
irresponsible.
2. Unilateral divorce – as it relates to incompatibility – when only one of the parties is incompatible
3. Definition of incompatibility for Kansas
a. Deep and irreconcilable conflict in the personalities or temperaments of the parties making it impossible for them to continue a normal marital relationship. It is difficult to imagine a husband whose temperament is compatible with a wife’s if her temperament is incompatible with his.
viii. Williams
1. The wife had sued for separate maintenance on the grounds of gross neglect of duty, extreme cruelty and incompatibility. The husband counter sued for divorce on incompatibility.
2. Under the fault system, the husband’s actions of running around with another woman would have prevented him from getting the divorce.
ix. Cohee v. Cohee
1. Patricia’s petition alleged incompatibility. Terry’s answer and counter petition requested an absolute divorce on the fault grounds of failure to perform a material marital duty.
2. Court:
a. 60-1601 requires the court to grant the divorce if the evidence establishes one of the grounds for divorce or separate maintenance.
i. The court does not have the discretionary power to grant the divorce, except when a petition is filed by a guardian of an incompetent spouse
ii. The new section eliminates the recrimination defense
b. Recrimination is not recognized as a defense to a petition for divorce on the grounds of failure to perform a material marital duty or obligation
c. Fault, as a term of art, is not to be considered in their determination of the financial aspects of the dissolution of the marriage, nor should a penalty be imposed as a result of such consideration.
3. Ks. St. 60-1601
a. The District court shall grant the decree of divorce of divorce or separate maintenance for any of the following grounds (1) incompatibility; (2) failure to perform a material marital duty or obligation; or (3) incompatibility by reason of mental illness or mental incapacity of one of both spouses.
4. Ks St. 60-1606
a. The court shall grant a requested decree of divorce, separate maintenance or annulment unless the granting of the decree is discretionary under this article or unless the court finds that there are no grounds for the requested alteration of marital status.
b. Under these two statutes, the court must grant the requested remedy if the grounds exist. The only discretionary options are (1) under (b) of Ks. St. 60-1602 dealing with annulment grounds; or (2) under the last portion of 60-1601, which deals with the divorce being filed by a guardian if both spouses are mentally ill or mentally
incapacitated.
c. Fault Divorce Substitutes
i. Alienation of Affections
1. 23-208 – Alienation of affections actions abolished
There shall be no right to bring an action in this state to recover damages for alienation of affections based on any act done on or after July 1, 1982.
2. Tort action against a 3rd party for impairment or loss of consortium which includes society, services, assistance, sexual relations and all that goes with the status of marriage.
3. Intentional interference with the husband wife relationship.
4. Elements:
a. Wrongful conduct on the part of the D with the spouse resulting in Loss of affection (causal connection between the conduct and the loss of affection)
b. The action does not include proof of sexual intercourse; the cause of action is against any 3rd party who alienates affections – mothers, fathers, etc. It also doesn’t require proof of a happy marriage – this would only mitigate damages
5. Elements:
a. Wrongful conduct by the D with the P’s spouse b. The loss of affection or consortium
c. A causal connection between the D’s conduct and the deprivation of consortium d. The spouses must be validly married.
6. Defenses:
a. Connivance/consent on the part of the P b. Good faith advice by the D
c. Condonation is not a defense – only mitigates damages d. Lack of viability of the marriage – only mitigates damages 7. Damages compensate for:
a. Loss of consortium – affection, society, companionship, as well as damages for
humiliation, anguish, disgrace or impairment of reputation; The wife could also sue for loss of financial support. (prior to equal protection challenges)
8. Long v. Fisher
a. Severely limited the elements for alienation of affections action. Kansas legislature enacted a statute that stated there shall be no right to bring an action in this state to recover damages for alienation of affections based on any act done on or after July 1, 1982. Ks. St. 23-208
ii. Criminal Conversation
1. The action at common law was available to the husband alone.
2. requires proof that there was a valid marriage and that the D had adulterous relations with the P’s spouse.
3. This is a common law tort, which was available only to the husband.
a. The purpose of this tort was to vindicate the husband’s property interest in his wife’s person (body), the risk being that he might have to support non-biological children and cast doubt on the legitimacy of his own children and rightful heirs.
4. Elements:
a. Proof of a valid marriage and adultery of the other spouse with the D 5. Defenses:
a. Connivance/consent on the part of the P
6. Damages compensate for Humiliation, embarrassment, mental anguish, loss of consortium if any.
iii. Frederick v. O’Keefe
1. Verdict for $1 actual damages and $50,000 punitive damages for alienation of affection, $1 actual damages and no punitive damages for criminal conversation.
iv. John Miller v. Timothy O’Neill
1. Verdict for $71,000 actual and $100,000 punitive damages for alienation of affections and
$10,000 actual and $40,000 for punitive damages for criminal conversation.
v. Chiles v. Chiles
1. Whether the cause of action for intentional infliction of emotional distress lies in a divorce action?
2. We decline to recognize IIED as a separate cause of action in a suit for divorce.
3. KS. 60-1627 – Interspousal Tort
(a) An action for interspousal tort shall not be consolidated with an action under KSA. 60-1601, et seq. , and amendments thereto, unless the parties agree to consolidation and consolidation is approved by the court.
(b) A decree of divorce or separate maintenance granted under subsections (a)(1) or (3) of KSA. 60-1601, and amendments thereto, shall not preclude an action for interspousal tort.
(c) A decree of divorce or separate maintenance granted under subsection (a)(2) of K.S.A. 60-1601, and
amendments thereto, shall preclude an action for interspousal tort based upon the same factual allegations. An action for interspousal tort which has been finally determined shall preclude an action under subsection (a)(2) of K.S.A. 60-1601, and amendments thereto, based upon the same factual allegations.
vi. Covenant Marriage
1. Kansas is not a covenant marriage state
2. Only allow divorce based on fault grounds and/or a longer period of living separate and apart than for a regular divorce.
3. Marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship.
4. Only when there has been a complete and total breach of the marital covenant may the non-breaching party seek a declaration that the marriage is no longer legally recognized.
vii. Legal Separation
1. grounds are the same, remedies are the same, but still married.
2. There is a residency requirement for divorce, but it is silent with separate maintenance.
3. If you need immediately, file for separate maintenance and then sixty days later amend to petition for divorce.
4. they want the benefits of marriage – i.e. health insurance
5. Separate Maintenance – Court ordered, Ks. St. 60-1601, 60-1610
a. Enforced as another judicial decree – contempt, execution, reviver, child support enforcement
6. Contract – Legal separation viii.
d. Divorce Jurisdiction
i. Divorce Jurisdiction
1. Ex parte divorce – the absent spouse has been given reasonable notice of the divorce action and an opportunity to be heard but doesn’t appear
2. Domicile
a. Haddock – US 1906 – the SC held that ex parte divorces will be given full faith and credit only if the divorce was granted in the state of marital domicile, even if the P is an actual domiciliary of the jurisdiction where the divorce was granted. – NO LONGER LAW
b. Williams – overturned Haddock – and held that if the P is an actual domiciliary of the state that grants the divorce, then full faith and credit applies to the ex parte divorce.
c. Williams II – This case refined the Williams I holding concerning the validity of ex parte divorce by holding that the determination of whether the petitioner is an actual
domiciliary by the divorce court could be reexamined by the marital domicile court. The determination of domicile by the divorce court is presumed to be valid until attacked.
The attacking party has the burn of showing that the P was not, in fact, an actual domiciliary of the jurisdiction where the divorce was granted.
3. Local statutes – the first jurisdictional requirement in any divorce case is imposed by the statutes of the forum.
a. Residence as used in these statutes generally means domicile, which is usually defined as being the place where the P is physically present with the intention of making it his home.
b. 2 PARTS TO DOMICILE i. PHYSICAL PRESENCE ii. INTENT TO REMAIN
c. RESIDENCY IS DETERMINED UPON FILING
d. If the P has been a resident for the proscribed period, the court has jurisdiction to grant a divorce
4. Federal jdx
a. It is settled that the federal courts sitting the various states have no jurisdiction to grant divorces or award alimony.
5. Full faith and credit
a. Full faith and credit must be given to divorce decrees when, but only when, one of the parties to the action, usually the P but conceivably the D was domiciled in the state where the decree was granted
6. Due process of Law
a. Due process here means that service must be reasonably calculated to give the
nonresident defendant actual notice and an opportunity to be heard, although it must be recognized that very often no actual notice is received by the D
ii. Estoppel against jurisdictional attack on decrees of divorce 1. Sherrer v. Sherrer –
a. The wife, domiciled with her husband in Massachusetts, went to Florida and sued for Divorce. The husband appeared personally in the action, but a divorce was granted. The SC held that the husband could not attack the validity of the Florida decree in a suit brought in Mass.
b. It stated the rule to be that the requirements of full faith and credit bar a D from
collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister state where there has been participating by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the state which rendered the decree.
c. US SC held that the requirements of full faith and credit bar the respondent from
collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister state when three factors are present
i. Where there has been participating of the respondent in the divorce proceedings ii. The respondent was accorded full opportunity to contest the jurisdictional grounds iii. The decree is not subject to collateral attack in the courts of the state which
rendered the decree
2. Distinguish between full faith and credit and estoppel
a. Full faith and credit is an application of res judicata, whereas estoppel is not a function of the decree but a personal disability on the party attacking the decree
b. There are three principles of estoppel that are applied to cases challenging the recognition of out of state divorces
i. They attack on the divorce is inconsistent with the prior conduct of the attacking party
ii. The party upholding the divorce has relied upon it, forming expectations that the divorce was valid or
iii. These expectations will be upset by setting aside the divorce
iii. Lillis v. Lillis
1. If the divorce court only has in rem jurisdiction, they divorce court can only ALTER