common law "divorce" prove marraige first?

[wichitarick]

What is the name of your state?Kansas
Hi.
I am asking for a friend .
He was involved with and living with a woman for many yrs (14) .
She is deaf and mentally challenged and on ssi.
she started really messing up financly and had the bank take all her ssi check several times
he had enough of her not paying bills and after many talks (without his knowledge)
while he was at work she moved out in fact he no knowledge of her where abouts until a few weeks later when she came demanding certain things .
the police intervened and told him she could take whatever she wanted and not to interfere or they would arrest him.
O.k. that said
a few more weeks and he was served divorce papers at work.
I have read a lot of imfo. on this subject and I know what the law says about what makes
"common law marraige" in K.S. .
and I know that it says that divorce is different .
BUT the question I have is don,t they have to "prove" common law marraige first.
Everyone just assumes because you live together thats it.
but the law says you have to 1 live together.2 "present yourself to others and each other as husband and wife".
this is where I see the prob. HE or she has never presented each other as married
in fact he has gone to great lengths to make sure her name was not on things like the title to his house or his home insurance and has refused to get credit cards many times
because she is irrersonsible and childlike and skips on bills.
she has a huge past credit card bill that she has avoided paying for over a yr. and another that is smaller ,but still not paid.
and these papers state that she wants alimony of around 430 $ a mo.
this man is simple and delivery driver.
he also has a habit of bowing instead of fighting.
I am trying to get him lined up so he knows where he stands.
the way the law reads they are not married even though we all just assume that.
If he just goes to a lawyer and says hey WE were never married I,m afraid the lawyer is just going to say oh no you are.
DOES she have to prove "common law marraige " before divorce.
thanks so much Rick in wichita ks.

 

[seniorjudge]

Q: BUT the question I have is don,t they have to "prove" common law marraige first.

A: Yes.

 

[LdiJ]

Your friend really needs an attorney. As SeniorJudge said a common law marriage has to be proven first, but that would be an element of the "divorce" case....the first element.

This really isn't something that he should attempt on his own. If she has an attorney her attorney wouldn't be going forward with this without feeling that it was possible to prove a common law marriage. The fact that she is mentally disabled could factor into her belief that she was married under common law.

Your friend should at least consult a local attorney.

 

[BelizeBreeze]

Unless they have a marriage agreement, based on Kansas statutes, there is no common law marriage.

Under Kansas Statute 23-101 (2002), both parties to a common-law marriage must be 18 years old. The three requirements that must coexist to establish a common-law marriage in Kansas are: (1) capacity to marry; (2) a present marriage agreement; and (3) a holding out of each other as husband and wife to the public. In the Matter of the Petition of Lola Pace (Kan. 1999)

 

[wichitarick]

hi
thanks that is the way I saw it and I read that case.
and I also saw it like you said about the attorney not acting on it if he did not think this was doable.
but I, because of my own seperation have seen an attorney act on imfo. from a person that was not credible and if she would have just checked a few things ,found out that the person she was representing had some serious mental issues and was not capable of seeing the whole picture.
He is going to get an attorney . But I want him to have some of these facts printed out before he does so he can show this person what he allready knows.
I was in court just a few yrs ago and my attorney showed me that it is short and sweet and the judge does not want to spend time settling these cases.
and that most of this stuff is worked out between the lawyers before court.
He aslo showed me that alimony is not possible without kids involved or if the person asking has an income allready (like she does) and if both parties are basically living paycheck to paycheck anyway.
This is a little scary because I read the papers and she wants alimony and these debts to be mutual .
I also remember very well that my attorney sure liked the fact that my wife left on her own free will and he allready had the title to my house signed in my name only before the final papers were signed.
thanks for the comments and I will keep this updated in the facts as the drama unfolds.
Rick in wichita Ks.

 

[BelizeBreeze]

Your attorney needs do only one thing when the ex-partner attempts to divorce and that is simply file a motion to dismiss based on there is no marriage for which a divorce may be granted.

 

[wichitarick]

hi
thanks ,that is why I am asking questions .
Because I have some memory probs.
That is what I was thinking just did not know how to say it.
thanks again I will try to get this all printed out so at least he has a cheat sheet to refer to.
thanks so much Rick in wichita