Separation and Divorce
What Are My Options If My Spouse And I Are Not Getting Along?
Your first option is to seek counseling. Counseling is provided on post by the chaplains and at Social Services. To be seen at Social Services, either spouse can call 239-7291 to make an appointment. The military spouse can also seek help at Community Mental Health Services (CMHS) located next to Irwin Army Community Hospital. CMHS offers assistance on a walk-in basis from 0800 to 1030, Monday through Wednesday and Friday. The military spouse can move into the barracks for a limited time for a "cooling off" period, and the rest of the family can remain in government quarters. If marital problems continue, you may seek a divorce immediately or you may live separately from your spouse indefinitely.
What Is "Separation?"
If you voluntarily live apart from your spouse, you are considered to be separated. During a period of separation, spouses continue to be legally married, and the non-military spouse remains entitled to any military benefits.
What are my obligations if my spouse and I have separated?
If you are the military spouse, you have a specific support obligation under Army regulations. AR 608-99 requires you to provide a certain amount of support to your family members. The amount depends upon your rank. For dual military families, special rules apply regarding support. Military personnel are subject to prosecution for adultery under the UCMJ. If you are the non-military spouse, adultery is also a crime under Kansas state law. Furthermore, once affirmative steps are taken toward separation and once the "cooling off" period has ended, the family is required to move out of government quarters.
How Does Divorce Work?
Kansas does not require a period of separation before one of the parties is permitted to file for divorce. If you file a divorce action in Kansas state court, the end result will be that the court will issue an order declaring the marriage terminated, dividing all property of the parties, and setting an amount of child support and/or spousal maintenance. To file for divorce in Kansas state court, you must have resided in Kansas or have been at Fort Riley for at least 60 days. Once the divorce petition has been filed, a mandatory 60-day period must pass before the divorce can become final. Divorce laws may be different in other states.
Who Will Get Custody?
Kansas has a preference for joint custody. Normally the child or children will have a primary residence with one of the parents. The other parent will be granted parental visitation (called "parenting time" in Kansas). Under a joint custody arrangement, both parents are equally responsible for raising the children and making decisions about them. In some instances, one parent will receive sole custody. The court will ultimately order the custody arrangement that is in the "best interests" of the children.
What About Support?
The court can set an amount for child support based upon who has primary custody and what the parties' respective incomes are. The court may order spousal maintenance (alimony) under some circumstances.
What About Our Property?
Any property owned prior to the marriage by either party or acquired during the marriage is subject to division by the court. The court can divide this property, and it need not be split equally. Kansas law merely requires that the property division be equitable. The court can also divide the parties' debts. Creditors, however, can still pursue either spouse on joint debts that become delinquent.
What About Military Benefits?
After the divorce is finalized, the children will retain some military benefits, including PX and health care. The non-military spouse will not retain any military benefits. However, if the marriage lasted at least twenty years, the soldier served at least twenty years on active duty, and twenty years of active duty military service overlap with twenty years of the marriage, then the spouse can retain military benefits. Any children will need to obtain an ID card to be able to receive their benefits. Check with the ID Card Section (212 Custer Ave. on Main Post, phone number 239-3654) to inquire about the procedure to obtain an ID card.
Can I Sue For Divorce In A State Other Than Kansas?
That depends. Each state has its own divorce laws regarding who can or cannot file for divorce there. Before trying to file in another state, you should check that state's divorce laws. Be aware that some states may have longer residency requirements than Kansas does.
If My Spouse Sues Me For Divorce, Do I Need An Attorney?
You are not required to hire a civilian attorney, and it may be tempting to avoid having to pay an attorney. If you do appear in court without an attorney, however, be prepared to lose every issue. Appearing without an attorney will probably hurt you badly in the long run.
What Services Does The Legal Assistance Office Provide?
We can provide you with general advice about divorce and separation, referrals to civilian attorneys, and prepare a voluntary separation agreement for you. Our office cannot represent you in the divorce. You will need a civilian attorney who can represent you in Kansas state court. We can, however, help you find a civilian attorney. The Legal Assistance office can only see whichever spouse seeks advice from our office first. Attorneys in other divisions of the Office of the Staff Judge Advocate are available to provide legal advice to the other spouse. All appointments are made by calling 239-3117.
What is a Separation Agreement?
A separation agreement is a contract signed by you and your spouse. The separation agreement can be prepared free of charge in the Legal Assistance Office. The separation agreement can divide your property and debts, determine how child custody will be arranged, set child support and maintenance (alimony), and arrange for tax preparation and responsibility. A separation agreement will not work unless you and your spouse can agree on all of these issues.
What Can A Separation Agreement Do For Me?
The separation agreement can alter the support requirements set by Army Regulation 608-99 and it may be incorporated into your divorce decree if you are subsequently divorced.
What Are The Downsides To A Separation Agreement?
Because the separation agreement is a contract, both you and your spouse must sign it. Also, a court is not obligated to incorporate every aspect of the agreement into a divorce decree.
Is The Separation Agreement a Legal Separation?
No. A separation agreement is a contract. You do have some legal remedies if the other spouse breaches this contract. A legal separation ("separate maintenance") involves getting a court order, which can be more easily enforced than a separation agreement. Legal Assistance Attorneys cannot help you get separate maintenance. You must seek assistance from civilian counsel.
Direct all questions regarding separation and divorce to the Legal Assistance Office at 239-3117. This fact sheet is not intended to give legal advice on your specific case. It is only a reference for general rules on Kansas divorce and separation.