Search
Future Students | Current Students | Alumni & Friends | Curriculum | Faculty | Centers | Clinic | Library | Career Planning | CLE | News | Centennial

Legislating Love: Is Returning to "Fault" Divorce a Good Idea?

Nancy G. Maxwell
Professor of Law, Washburn Law School

I. Present grounds for divorce or separate maintenance

A. K.S.A. § 60-1601:

"(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."

1. Incompatibility is defined as:
   "[D]eep and irreconcilable conflict in the personalities or temperaments of the parties as make it impossible for them to continue a normal marital relationship. The conflict of personalities and dispositions must be so deep as to be irreconcilable and irremediable. Petty quarrels and minor bickerings are clearly not sufficient to meet this standard." North v. North 217 Kan. 213, 535 P.2d 914 (1975).

2. Failure to perform a material marital duty or obligation is a catch-all phrase encompassing all the fault grounds listed in the Kansas statutes prior to the 1982 amendments to the Kansas divorce code. These fault grounds are: "abandonment for one year, adultery, extreme cruelty, habitual drunkenness, gross neglect of duty, conviction of a felony and imprisonment therefor subsequent to the marriage." See Nancy G. Maxwell, In the Best Interest of the Divided Family: An Analysis of the 1982 Amendments to the Kansas Divorce Code, 22 Washburn L. J. 177, 182-183 (1983) (hereinafter cited as Maxwell, Analysis of 1982 Amendments)

3. Incompatibility by reason of mental illness or mental incapacity of one or both spouses is defined by incorporating the definition of incompatibility, together with the statutory requirements of subsection (b) in K.S.A. § 60-1601. Subsection (b) specifically states that "[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 or maintenance of the mentally ill or mentally incapacitated spouse."

B. Legislative history of the present grounds for divorce or separate maintenance in Kansas.

1. The Family Law Advisory Committee (FLAC) of the Kansas Judicial Council was formed in 1977 to review Kansas domestic relations laws because of recent changes in family structures. Because of these changes, present laws either did not guide the courts or impeded rational, but nontraditional, methods of dispute resolution. FLAC members determined "to leave the general form of the statutes as much intact as possible for the dual purpose of preserving the relevancy of as much of the present body of case law as possible and enacting into law a statutory scheme that in substance and form did not radically depart from the present Kansas law." Recommended Amendments to the Kansas Divorce Code, General Comment, Kan. Jud. Counc. Bull. (Dec. 1980) at 29. The specific goals were to:

   1. Codify case law
   2. Reduce the adversarial nature of divorce
   3. Limit fault

   Maxwell, An Analysis of the 1982 Amendments, 22 Washburn L. J. 177, 179-181 (1983)

2. The code has examples of the drafters' desire to reduce the adversarial nature of divorce and limit fault in numerous sections. For example:

   1. Incompatibility is listed first to signify it as the preferred grounds for divorce. K.S.A. § 60-1601
   2. Failure to perform a material marital duty or obligation is used as a catch-all phrase for previous fault grounds. K.S.A. § 60-1601
   3. The neutral pleadings caption "In the marriage of" is used instead of the adversarial caption using "versus." Facts supporting the grounds for divorce are not allowed in the pleadings or other public documents. K.S.A. § 60-1604
   4. Temporary restraining orders are issued jointly to restrain the parties with regard to the disposition of the property. K.S.A. § 60-1607
   5. There is a preference for joint legal custody of the children. K.S.A. § 60-1610(a)(4)
   6. Legislative history reveals that the use of marital fault, such as extramarital affairs, should not be considered in the division of marital property. K.S.A. § 60-1610(b)(1)

   Maxwell, An Analysis of the 1982 Amendments, 22 Washburn L. J. 177 (1983)

II. S.B. 312, reinstating "fault" only divorce grounds in Kansas,
has been introduced in the last two legislative sessions.

A. The bill provides:

K.S.A. § 60-1601

(a) The district court shall grant a decree of divorce or separate maintenance for any of the following grounds:

(1) If both parties voluntarily consent to the divorce; and

(A) the parties do not have a minor child;

(B) neither party is the physical custodian of a minor child at the time of filing the complaint for divorce

(C) the wife is not pregnant with a child whose father is the husband at the time of the filing; and

(D) there is a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved; or

(2) if one spouse objects to the divorce, or if the parties have a minor child; if either party is the physical custodian of a minor at the time of the filing of the complaint for divorce; or if the wife is pregnant with a child whose father is the husband at the time of the filing:

The party to the marriage filing for divorce shall allege in the complaint one or more of the following regarding the other party to the marriage:

(A) Gross neglect of duty;

(B) incompatibility by reason of mental illness or mental incapacity of one or both spouses;

(C) incompatibility by reason of impotency;

(D)adultery;

(E) pregnancy by the wife at the time of the marriage by a person other than her husband;

(F) extreme cruelty;

(G) habitual use of alcohol or a controlled substance;

(H) abandonment for one or more years;

(I) conviction and imprisonment for a felony subsequent to the marriage. If a divorce is granted under this subdivision, a pardon or other alteration of the party's sentence or conviction does not restore the marriage.

B. Analysis of S.B. 312

1. Inconsistent language

   S.B. 312 refers to the pleading for divorce or separate maintenance as a "complaint." The Kansas divorce code uses the term "petition" throughout the code.

2. Inconsistent policies

   The introduction of fault-only divorce in certain situations (when the other party does not consent or when there are children involved) is contrary to the policy of the 1982 Amendments--to reduce the adversarial nature of divorce and limit fault. Consequently the policy of S.B. 312 is at odds with the policy of the remainder of the divorce code.

   Query: Is fault relevant only to granting the divorce and not relevant to the division of the property? (See I.B.2.f. supra)

3. Reviving old case law and common law concerning fault divorce

   1. Fault divorce has its origin in ecclesiastical law of the Roman Catholic Church and later, the Church of England. It is based on the grounds for separation from bed and board, the church not allowing absolute divorce. Therefore the jurisprudence developed in a situation that did not allow complete divorce, with the attendant ability to marry again. Church law was based on the assumption that there was an "innocent" party and a "guilty" party and incorporated some of the notions of tort law--ie. only a party not at fault can receive relief. (See Defenses to fault divorces, II.B.3.d. infra)

      Query: Does it make sense to apply the jurisprudence of a system based on religious theology and which did not allow complete divorce, to a secular system that does allow complete divorce and which has a constitutional prohibition against the establishment of a state religion (separation of church and state)?

   2. The General Statutes of Kansas, 1868, the origin of fault-only divorce in Kansas, stated:

      "The district court may grant a divorce for any of the following reasons: First, When either of the parties had a former husband or wife living at the time of the subsequent marriage. Second, Abandonment for one year. Third, Adultery. Fourth, Impotency. Fifth, When the wife, at the time of the marriage, was pregnant by another than her husband. Sixth, Extreme cruelty. Seventh, Fraudulent contract. Eighth, Habitual drunkenness. Ninth, Gross neglect of duty. Tenth, The conviction of a felony, and imprisonment in the penitentiary therefor, subsequent to the marriage." G.S. 1868, ch 80 § 639, Oct. 31. [Later there was an eleventh ground added to the statute: insanity for a period of 5 years.]

   3. A comparison between the 1868 statute and S.B. 312 reveals that all of the fault grounds under S.B. 312 (with the exception of mental illness, which became a ground for divorce in the early 1900's) existed in 1868 with only minor differences in the language of several of the grounds.

      Query: Does the common law and case precedent of these grounds dating back to 1868 become relevant again if Kansas returns to fault-only divorce? What are some of the definitions that existed under fault-only divorce in Kansas or under the common law?

      1. Gross neglect of [marital] duty

         "The expression, 'gross neglect of duty,' is indefinite, and it is difficult to lay down any general rule by which every case can be determined to be within or without its limits. Each case must be examined by itself. And yet an examination of the whole body of the divorce act will suggest certain things as to the legislative intent in this expression. And first, it is not mere neglect of marital duty. The adjective 'gross,' whatever may be said of it as a mere term of vituperation in other relations, here has legal force as descriptive of the conduct of the party neglecting duty. If it were not so, and any mere neglect of duty were ground for divorce, the aid of the courts might was well be abandoned, and voluntary separation permitted. There must not only be a default, but the default must be attended with circumstances of indignity or aggravation." Smith v. Smith, 22 Kan. 487 (1879)

         And in 1969, the Kansas Supreme Court, in Talman v. Talman, 203 Kan. 601, 455 P.2d 574 (1969), approved of the following application of the facts to a finding that the wife had grossly neglected her duties, relying on the language of Petty v. Petty, 147 Kan. 342, 76 P.2d 850 (1938):

         "In the division of responsibilities between husband and wife, the greater duty of having a harmonious home ordinarily falls upon the wife, just as the greater duty of providing a living falls upon the husband. Here the evidence sustains the view that [the wife's] interest in a harmonious home was secondary to her own ambitions apart from the home and she carried this to such an extreme as to be primarily responsible for the failure of their marriage."

      2. Incompatibility by reason of mental illness or mental incapacity

         This ground remains unchanged from the present statute in S.B. 312. The proof, which is restricted to cases of hospitalization for mental illness and the expert opinion of 2 out of 3 doctors that the prognosis for recovery is poor, is set out in subsection (b) of K.S.A. § 60-1601. Interestingly, although mental illness is a ground for divorce, a spouse's insanity also can be used as a defense to a fault based divorce. If the mentally ill spouse commits an act that is listed as a fault ground for divorce, but the act is a product of the mental illness and not intentional, the other spouse cannot rely on the act as a ground for divorce. For example, see Lindbloom v. Lindbloom, 177 Kan. 286, 279 P.2d 243 (1955).

      3. Incompatibility by reason of impotency

         This ground for divorce seems misplaced. At common law, this was a ground for annulment, not divorce. The impotency had to exist at the time of the marriage and it had to be incurable. Impotency at the time of the marriage created a voidable marriage that could be ratified by the other spouse. Although this was a ground for divorce in 1868 in Kansas, impotency is more appropriately a ground for annulment. See K.S.A. § 60-1602(b), which sets out the discretionary ground for annulment in Kansas: "The district court may grant a decree of annulment of any marriage if the contract of marriage was induced by mistake of fact, lack of knowledge of a material fact or any other reason justifying recision of a contract of marriage."

         In Powell v. Powell, 18 Kan. 371 (1887) the Kansas Supreme Court held that the impotency must exist at the time of the marriage and in Bunger v. Bunger, 85 Kan. 564, 117 P. 1017 (1911), the Court required the impotency be incurable, ie. that the evidence show a permanent and lasting inability for copulation. Also, one of the issues under the impotency ground in annulment cases is whether this ground exists only for the wife or can the husband sue for his wife's "frigidity?" In addition, some jurisdictions have granted a judgment against the party who is impotent or frigid at the time of the marriage even though there were children born of the marriage, either through artificial insemination in the case of an impotent husband and a "splash" pregnancy in the case of a frigid wife. Because the ground requires the impotency to render the couple incompatible, one could argue that this ground could be alleged even if the impotency occurs after the marriage.

         Query: Does providing this ground, which will be alleged in a public document, helpful or healthy for the spouses or their children? Is one's impotency his "fault?"

      4. Adultery

         "The voluntary sexual intercourse of a married person with a person other than the offender's spouse." Evidence of adultery can be proved by circumstances indicating 1) the opportunity to commit adultery and 2) the disposition or inclination to commit it.

         American jurisprudence has narrowly defined "sexual intercourse." Acts of sexual gratification without intercourse are not recognized as sufficient for proving adultery ie. sodomy is not sufficient to prove adultery. Also, Lord Mansfield's rule will prohibit testimony against the wife that a child born during the marriage was not the child of her husband.

      5. Pregnancy by the wife at the time of the marriage by a person other than her husband.

         This ground for divorce also seems misplaced. As with impotency, at common law this is a ground for annulment, not divorce. This ground for annulment is known as fraudulent contract and is specifically listed in K.S.A. § 60-1601(a)(2): "The district court shall grant a decree of annulment of any marriage for either of the following grounds . . . (2) the contract of marriage is voidable because it was induced by fraud." See Browning v. Browning, 89 Kan. 98, 130 Pac. 852 (1913).

      6. Extreme cruelty

         Extreme cruelty was defined in early Kansas cases as follows: "Any unjustifiable conduct on the part of either the husband or the wife which so grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other, as to seriously impair bodily health or endanger life of the other, or such as in any other manner endangers the life of the other or such as utterly destroys the legitimate ends and objects of matrimony, constitutes extreme cruelty under the statutes, although no physical or personal violence is inflicted or even threatened." Carpenter v. Carpenter, 30 Kan. 712, 2 P. 122 (1883).

         This definition has gone through several transitions. In the 1940s and 1950s, the definition cited by the Court was "any unjustifiable, long practiced course of conduct by one spouse toward the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted, or threatened." Carpenter v. Carpenter, 165 Kan. 42, 193 P.2d 196 (1948). By the late 1960s, the Court's application of the ground of extreme cruelty sounded more like incompatibility. In Talman v. Talman, 203 Kan. 601, 455 P.2d 574 (1969) the court said "A course of conduct on the part of one spouse which has become intolerable to the other, so as to disrupt domestic harmony and to destroy legitimate matrimonial objectives, has often been characterized as behavior amounting to extreme cruelty." And in Saint v. Saint, 196 Kan. 330, 411 P.2d 683 (1966) the court said that evidence "disclosed a course of conduct on the defendant's part tending to disrupt domestic harmony and to destroy legitimate matrimonial objectives. We have often characterized such behavior as extreme cruelty within the purview of Kansas statutes governing divorce." In the Saint case, the evidence that supported the husband's petition for divorce against the wife was "that repeatedly throughout their marriage the defendant became angered at her husband, on which occasions it was her habit to retire to the basement, or her bedroom, there to pout and sulk for protracted periods; and that for days at a time she would refuse to speak to or communicate with her husband."

         Query: Is the late 1960s' definition for extreme cruelty any different than subsection (a)(D) of S.B. 312, which requires a showing that "there is a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved?"

      7. Habitual use of alcohol or a controlled substance

         In Walton v. Walton, 34 Kan. 195, 8 P. 110 (1885), the Kansas Supreme Court held that a "man who drinks to excess may be an habitual drunkard within the meaning of the divorce laws, although there are intervals when he refrains entirely from the use of intoxicating drinks. But before he can be regarded as an habitual drunkard, it must appear that the practice of drinking to excess is indulged in so frequently as to become a fixed habit with him.. . .A person who drinks to excess, and who becomes intoxicated whenever the temptation is presented and the opportunity is afforded him, is an habitual drunkard in the sense in which this expression is used in the statute relating to divorce." Generally this condition must exist up to the time of the divorce action.

      8. Abandonment for one year

         Known at common law as desertion, this ground for divorce required four elements: 1) voluntary separation by one spouse from the other 2) with the intent not to resume martial cohabitation 3) without the consent of the other spouse and 4) without justification. The one year requirement must be continuous and if the abandoning spouse returns before the one year has passed, the time is tolled. The one year of continuous abandonment must exist at the time of the filing of the petition for divorce. The divorce ground of gross neglect of duty was sometimes alleged in an attempt to avoid the one year time requirement of abandonment, but this strategy was not successful in at least two cases appealed to the Kansas Supreme Court. Smith v. Smith, 22 Kan. 487 (1879) and Carpenter v. Carpenter, 165 Kan. 42, 193 P.2d 196 (1948).

         Query: Does Kansas recognize variations on the ground of abandonment such as 1) a spouse's refusal to "share a common bed" as abandonment; (2) "constructive" abandonment in which the petitioning spouse was forced out of the marital home by the conduct of the respondent spouse; or 3) the wife's refusal to accept the husband's reasonable choice of a martial domicile?

      9. Conviction and imprisonment for a felony subsequent to the marriage

         There is little Kansas law on this ground for divorce, but the Kansas Supreme Court did hold in Comm'rs of Rice Co. v. Lawrence, 29 Kan. 158 (1883) that "There are manifest and manifold reasons, which will naturally occur to any one upon consideration, why the service in a divorce proceeding founded upon the conviction and imprisonment of the defendant ought to be excepted from the general rule forbidding the service of process upon a defendant in prison."

   4. Defenses to fault divorce

      If the legislature enacts fault-only divorce in certain circumstances, do the common law defenses to fault divorce also apply?

      Because only the "innocent" spouse is entitled to a divorce, the defendant could defend the divorce by alleging several common law defenses. The defenses were used either to prevent the divorce, or to allow the defendant to prevail in obtaining the divorce on a counterpetition. The reason the parties may litigate who is at "fault" in the divorce is because of the consequences of being found "at fault" in the divorce: the faulting party could be "punished" in the award of property, be disqualified for alimony and be denied custody of the children. The common law defenses to fault divorce include the following:

      1. Connivance

         This defense involves the petitioner creating or developing the grounds for divorce, ie. the petitioner "consents" to the grounds by causing the grounds to occur. For example, the petitioner hires someone to "seduce" the spouse or consents to the spouse's adultery.

      2. Collusion

         This defense involves the parties agreeing to the creation of the grounds for divorce or agreeing to pretend that the grounds exist, ie. the parties "agree" to obtaining the divorce. This is a defense to a divorce because the marriage involves three parties--the husband, the wife and the state. Two of the parties cannot agree to obtain a divorce to the exclusion of the state's interest. Mutual consent is not a ground for divorce and the parties agreeing that some ground be committed or that it exists when in fact it does not, will result in a fraud on the court because of the parties' collusion. This is one reason why the Kansas statutes required corroborating evidence of the grounds for divorce under the previous fault-only divorce code. (This requirement was codified under K.S.A. § 60-1609, which has since been amended. It presently states: "(d) Corroborating testimony. A decree of divorce, separate maintenance or annulment may be granted upon the uncorroborated testimony of either party or both of them.")

         One of the problems created by collusive divorces is that this fact may not be known until one of the parties seeks to set aside the divorce (perhaps because he or she is now unhappy with some of the consequences of the divorce--property division, maintenance payments, custody, etc.). The court is placed in a position of being between a rock and a hard spot when a party is seeking relief from the collusive divorce: on the one hand the petitioning party comes into court with unclean hands, but if the court denies the relief requested of setting aside the collusive divorce, the court guarantees that parties can and will get away with collusive divorces as long as the collusion remains undetected during the divorce proceeding.

         In the case of In re Estate of Cooper, 195 Kan. 174, 403 P.2d 984 (1965), the Kansas Supreme Court struck down a property settlement agreement in which the husband and wife agreed that the husband would file, prosecute and obtain a divorce, that the wife would not contest the divorce and would default in the action and the husband would pay the attorneys' fees involved in the action. The Court held, "Such an agreement is void on the ground that it is collusive and against public policy."

      3. Condonation

         The defense of condonation required evidence that the petitioning spouse forgave the offending spouse and the parties resumed marital intercourse. It was essential that both forgiveness and resumption of marital intercourse occurred; one alone was insufficient for condonation.

         The rationale behind the defense of condonation is that forgiveness is good, that once there has been forgiveness and resumption of marital relations, the marriage should be preserved and the divorce ground is eliminated. However, if the offending spouse failed to treat the other spouse with conjugal kindness, the prior offenses would be revived.

         The Kansas Supreme Court recognized the difficulty of applying the defense of condonation to the ground of extreme cruelty. In Brown v. Brown, 171 Kan. 249, 232 P.2d 603, 32 A.L.R.2d 102 (1951), the Court stated that the "effect of voluntary cohabitation after acts of cruelty on the part of one spouse as evidencing condonation of the offense by the other stands upon a different basis than cohabitation after knowledge of adultery on the part of one spouse. Cruelty as a ground for divorce is generally a course of conduct rather than a single act. The rule is that sexual cohabitation after acts of cruelty cannot be considered as condonation in the sense in which it would be after an act of adultery. The effort to endure unkind treatment as long as possible is commendable; and it is obviously a just rule that the patient endurance by one spouse of the continuing ill treatment of the other should never be allowed to weaken his or her right to relief."

         And in Saint v. Saint, 196 Kan. 330, 411 P.2d 683 (1966), the Court recognized the requirement that the offending spouse treat the other with conjugal kindness. "It is also well settled in this jurisdiction that repetition of an offense after it has been condoned revives the original offense, and where acts of cruelty are repeated after reconciliation, the former cruelties are given fresh vitality and may be considered in conjunction with the new ill-treatment."

      4. Recrimination

         The doctrine of recrimination prevents the divorce if both parties have committed grounds for divorce, ie. only the "innocent" party is entitled to relief. See, for example, King v. King, 183 Kan. 406, 327 P.2d 865 (1958). Although this defense may have made sense in an ecclesiastical jurisprudence that did not allow for complete divorce, it is anomalous in the context of a system that does grant complete divorce. It would seem that if both parties to a marriage are engaging in grounds for divorce, this is the very kind of marriage that should be terminated, rather than one where all relief is denied.

         Prior to the 1982 amendments to the Kansas divorce code, former Kansas statute K.S.A. § 60-1606 recognized the defense of recrimination: "The court may grant or refuse a divorce when the parties are found to be in equal fault, except that where the court finds incompatibility it may not refuse to grant a divorce on that ground." Some courts have used the doctrine of comparative rectitude to ameliorate the application of the defense of recrimination. Under comparative rectitude, the court has the discretion to grant the divorce to the "least" faulting party.

      5. Provocation

         This defense is usually alleged in cases of extreme cruelty, in which the respondent defends by claiming that the cruel conduct was provoked by the other spouse.

      6. Delay in Bringing Suit

         It appears that this defense is specifically recognized in S.B. 312, because it states "In determining if the grounds for a divorce or separate maintenance filed under subsection (a)(2) are valid, the court shall consider the amount of time that has passed since the occurrence of the alleged event or the last of the events upon which the complaint is filed." Although this defense is akin to the equity concept of laches, delay in bringing suit would not seem to be an appropriate defense if, after the offending party commits a ground for divorce, the parties separate and have been living separate and apart for a long period of time.

      7. Insanity

         If the mentally ill spouse commits an act that is listed as a fault ground for divorce, but the act is a product of the mental illness and not intentional, the other spouse cannot rely on the act as a ground for divorce. For example, see Lindbloom v. Lindbloom, 177 Kan. 286, 279 P.2d 243 (1955).

   5. The psychological assumptions underlying fault divorce.

      Do marriages fail because one spouse commits an act or engages in a course of conduct that is classified as a ground for divorce?

      Is there an "innocent" and "guilty" spouse in a failed marriage?

      What is worse for children: living through a divorce or living with parents who do not want to continue in a failed marriage, but have no other option because neither has committed a ground for divorce?

      Will a return to fault divorce engender confidence in the law and the judicial process?

      Does making divorce more difficult prevent failed marriages, prevent separations or prevent the loss of "that loving feeling?"

   6. Studies on why marriages fail are unrelated to the law--they are related to the emotional and interdependent interactions of the parties. Both parties actively participate in the conduct that can lead to a failed marriage and either spouse can engage in "repair" work in an attempt to stop the downward spiral. See Appendix A, "What Makes Love Last." Studies also show that once a marriage partner reaches a certain point in the emotional process, nothing can "save" the marriage. See Appendix B, "Adult Emotional Stages of Divorce." Finally, studies of other countries that do not allow divorce or have difficult divorce laws reveal that strict divorce laws do nothing to prevent marital breakdown. See Max Rheinstein, Marriage Stability, Divorce and the Law, University of Chicago Press, 1972. The real problem, then, is not liberal divorce laws, but the break down of the marriage itself. It is unlikely that any form of legislation will be successful in preventing this from happening.