Divorce and Family Law Attorneys
When your financial future and your relationship with your children are at stake, you need our experienced divorce and family law attorneys to help you settle your life. At Joseph Hollander & Craft LLC, our lawyers have more than 60 years of experience helping men and women resolve legal issues pertaining to their marriage, children, property, and finances. We are genuinely concerned about our clients’ and their children’s needs. We will listen to you, provide an objective assessment of your situation, and create a plan to resolve your case on favorable terms.
Divorce is a life-altering event, and it is usually one of the most painful and sensitive experiences in a person’s life. We recognize that clients coming to us during this difficult time deserve personal attention, care, and respect. We are aggressive divorce attorneys, but we are also compassionate and caring.
Your children’s future is a foremost concern. We have extensive experience in resolving child custody disputes outside of the courtroom. However, we are also skilled advocates, prepared to aggressively protect your children’s welfare in the event that negotiations fail.
Whether you are going through an uncontested or highly contested divorce, involved in a custody dispute, seeking assistance modifying child support, or in need of guardianship papers, we can assist you. Call our attorneys in Wichita, Topeka, or Lawrence for help from an experienced and honest divorce and family law attorney.
Divorce Law in Kansas
The following is an overview of Kansas law on divorce. It is general information only and not legal advice. Call our divorce attorneys for advice about what to do in your unique situation.
JURISDICTION AND VENUE: In order to file for divorce, legal separation, or annulment in Kansas, one of the parties must be an “actual resident” of Kansas for at least sixty days before filing the divorce petition. If one party resides outside of Kansas, jurisdiction may be obtained over that person through their consent, by serving the person in Kansas, or through one of several “long-armjurisdiction” provisions. An action for divorce, annulment, or separate maintenance may be brought in the county where either party resides, or where service may be obtained on the respondent. If the petitioner is a resident of or stationed at a United States post or military reservation within the state, the action may be brought in any county adjacent to the post or reservation.
GROUNDS FOR DIVORCE OR SEPARATE MAINTENANCE: The court can grant a divorce or legal separation based upon incompatibility, failure to perform a material marital duty or obligation (fault), or incompatibility by reason of mental illness or mental incapacity of one or both of the parties. By far, the most common basis for divorce or legal separation is incompatibility because it does not require proof of fault; it merely requires that the party seeking the divorce believes the parties are incompatible.
STARTING THE PROCESS: The divorce, legal separation, or annulment process begins when one party files a petition. The individual filing the petition is known as the petitioner and the other party is identified as the respondent. The petition will identify when and where the parties were married, if there are any minor children of the parties, if the parties have assets and debts subject to division by the court, and possibly other legal issues. A filing fee will be charged by the district court clerk upon filing the petition with the court.
TEMPORARY ORDERS: Kansas law allows for the district court to issue ex parte temporary orders in divorce, legal separation, or annulment actions. Ex parte orders are issued when the court has been provided with only the petitioner’s basis for the temporary order provisions and the respondent’s input has not been considered. You may have heard the phrase, “The first to file wins.” This refers to the fact that the petitioner may obtain temporary orders from the court on issues such as which party is awarded the marital residence, which party is granted residency of the minor children, a parenting plan (visitation schedule), division of the parties assets and debts, child support, and spousal maintenance on an ex parte basis. However, these orders are temporary in nature and are subject to modification upon the respondent filing a motion to modify them. If the respondent files a motion to modify, the matter will be set for a hearing so that the court can consider both parties’ perspectives as to the appropriate order.
SERVING THE RESPONDENT: The person named as the respondent normally does not become a party to the action until they are served with copies of the summons, petition, and temporary order. The action is commenced against them when they receive this notice and the temporary order takes effect at that time. Service in Kansas may be obtained by having law enforcement or a special process server personally serve the respondent, through certified mail, by the respondent voluntarily entering their appearance and waiving formal service, and, in some circumstances, through publication in a area newspaper. Service must be accomplished by one of these formal means. It cannot be obtained by the petitioner providing the summons, petition, and temporary orders directly to the respondent.
COOLING OFF PERIOD: Ordinarily, the district court does not have the authority to grant a divorce until 60 days have elapsed since the filing of the petition. This waiting period is generally referred to at the “cooling off” period. A court may grant a divorce before 60 days have passed only in rare, special circumstances.
MARRIAGE COUNSELING: Although there is a statutory provision allowing the district court to order parties into marriage counseling, it is rarely applied.
CHILD CUSTODY: The court is authorized to make any custodial arrangement that it finds to be in the best interest of the child. Many litigants equate the term “custody” with where the children live, but the term “custody” actually defines broader legal rights of the parties. That is, joint legal custody does not mean that the child will reside equal amounts of time with each parent. Joint legal custody awards the parties equal rights to make decisions in the best interest of the child on issues such as medical care, child care, and education. Should the court find that it is not in the best interest of the child for the parties to share decision-making responsibilities, it may award one party sole legal custody. If the court awards sole legal custody, it is required to include on the record specific finding of facts setting out the basis for that decision. In the vast majority of cases, the parties are awarded joint legal custody.
RESIDENCY OF THE CHILD: The court will order a residential placement arrangement that is consistent with the best interests of the child. It may provide for the child to reside primarily with one parent, or it may provide for the child to split residency between parents. Shared residential placement exists when the child spends equal or nearly equal blocks of time with each parent. Shared residency requires parents to be extremely cooperative and works best when the parties live in close proximity to each other. In extraordinary circumstances, the court may provide for a divided residency scenario in which multiple children of mutual parents are split between their parents’ residences such that the siblings to do reside together.
PARENTING TIME: Parenting time has replaced the term “visitation” and defines the time periods a child will be with each parent. The court can grant a specific “parenting plan” or adopt the agreed plan of the parties. The parenting plan may be as vague as “reasonable parenting time as agreed upon by the parties,” or it may provide a detailed outline of the non-residential parent’s parenting time days, exchange times and locations, and a structured holiday schedule. When one parent has been designated the primary residential parent of a child, the other parent is generally awarded parenting time. The parenting plan in shared residency arrangements will define the blocks of time the child spends with each parent.
ALTERNATIVE DISPUTE RESOLUTION: Most Kansas courts require that parties with minor children participate in some form of alternative dispute resolution prior to appearing before the court over a residential placement or parenting time dispute. There are statutory provisions for mediation and case management, which allow the parents to attempt to resolve their custody and parenting time issues without the need for a contested court hearing. The parties’ first introduction to mediation typically comes when the respondent seeks a modification to the ex parte order obtained by the petitioner. Mediation is a confidential proceeding during which the parties, with or without their attorneys, meet with a trained mediator and attempt to resolve their parenting issues without further court intervention. Case management can be ordered by the court to assist highly conflicted parties on issues related to legal custody, residency, and parenting time, as well as any other issues the parties agree to submit. If the parties are unable to reach an agreement on the issues, the case manager will submit a recommendation to the court. Some jurisdictions offer limited case management or conciliation, which are hybrids of mediation and case management. Limited case management and conciliation are not confidential. The parties attempt to reach an agreement on the disputed issues with a trained limited case manager or conciliator. If the parties are unable to reach an agreement on any issue, the limited case manager or conciliator will submit a written report to the court that will include his or her recommendation for resolution of disputed issues. Although it cannot be ordered by the court, the parties can submit any contested issues to arbitration. The parties have a duty to file with the court any orders necessary to implement the arbitrator’s decision.
CHILD SUPPORT: Child support is determined by Kansas Child Support Guidelines. The guidelines provide a basis for establishing and reviewing child support orders, even those settled by agreement. Judges and hearing officers must follow the guidelines, and the court is required to consider all relevant evidence submitted when establishing a child support amount. A base child support amount is determined based on the gross income of each party. Then, adjustments are made based on parenting time and items such as long-distance parenting time costs, health/dental/vision insurance costs, and day care costs. Each party must submit a child support worksheet in all contested child support proceedings.
MAINTENANCE: The divorce decree may award either party an allowance for future support, designated as spousal maintenance (sometimes referred to as alimony), as the court finds just, fair, and equitable. Maintenance may be ordered in periodic payments, a lump sum, a percentage of earnings, or on any other basis established by the court. In determining an award of spousal maintenance, the court will generally consider the length of the marriage, the parties’ needs and ability to pay, the earning capacity of each party, the ages of the parties, whether there are children of the marriage, and whether one party contributed to the education or career of the other party during the marriage. The court cannot enter an award of spousal maintenance exceeding 121 months of its own accord. Upon agreement of the parties, the court can enter an award of spousal maintenance exceeding 121 months. Kansas does not have formal guidelines for establishing spousal maintenance but Johnson, Douglas, and Shawnee Counties have established their own judicial guidelines.
PROPERTY DIVISION: Kansas statute directs that “the decree shall divide the real and personal property of the parties, including any retirement and pension plans, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse’s own right after marriage or acquired by the spouses’ joint efforts, by: (A) a division of the property in kind; (B) awarding the property or part of the property to one of the spouses and requiring the other to pay a just and proper sum or (C) ordering a sale of the property, under conditions prescribed by the court, and dividing the proceeds of the sale.” All of the assets and debts owned by the parties, individually or jointly, at the time the divorce is filed comprise the “marital estate.” The court is required to make an equitable division of the marital estate, which does not necessarily mean an “equal” division. Although the court will generally award each party the separate property he or she owned prior to marriage and divide that property acquired during the marriage, it is possible that separate property will be included in the court’s division. Division of debt is treated in the same manner. If one party brought debt into the marriage, that debt may be carved out of the debt pool and awarded to the originating party. Generally, joint debt accumulated during the marriage will be divided between the parties. It is important to be aware that one party’s status as the primary wage earner during the marriage will not result in an unequal division of the marital estate.
PROPERTY SETTLEMENT AGREEMENT: The parties can take the division of their marital estate out of the hands of the court by entering into their own property settlement agreement, also referred to as a marital settlement agreement. This written agreement can be a separate document, or it can be incorporated into the Journal Entry of Judgement and Decree of Divorce. The property settlement agreement will be reviewed by the court, and it will be approved if the court finds it to be just, fair, and equitable. The agreement must include enough details for the court to make such a finding. Once approved by the court, property settlement agreements are generally not reviewable or modifiable by the court, except in limited circumstances.
DISCOVERY: Discovery is the process of gathering information and documents concerning the issues involved in the divorce. Each party can submit written discovery to the other party requiring the production of relevant case documents and may require the other party to answer written questions under oath regarding case issues. Either party may take the other party’s deposition or may depose other relevant witnesses. Not all cases require extensive discovery and those that do are generally cases involving larger marital estates or contested custody, residency, or parenting time disputes.
TRIAL: If the parties are unable to resolve all the issues in their case, remaining issues may be presented to the court for resolution. Each party may call witnesses to testify and may introduce exhibits to support his or her position. The court will make a finding on each contested issue, and the court’s decision will be included in the decree of divorce.
DECREE OF DIVORCE: The Journal Entry of Judgment and Decree of Divorce is the document that dissolves the bonds of matrimony and grants the divorce. The decree generally includes final parenting plan provisions establishing legal custody, residency and parenting time, child support provisions, maintenance, division of the parties’ marital estate, and other issues presented to the court for determination. Once the decree is filed with the district court clerk, the divorce is finalized. Although the parenting plan is commonly referred to as a “permanent parenting plan,” the court retains continuing jurisdiction over all child-related issues (legal custody, residency, parenting time, and child support) until the child is 18 years of age or later in some child support situations.