Kansas Family Law Process
The Kansas Divorce Process And Law
Set forth is an overview of Kansas divorce laws. This summary is meant to provide general information only and is not legal advice. Every situation is different so you will need to call one of our Kansas City Divorce attorneys for counsel regarding what to do in your specific 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 prior to 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-arm jurisdiction” 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.
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 an 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 as the “cooling off” period. A court may grant a divorce before 60 days have passed only in rare, special circumstances. Your divorce attorney can provide more details on this option.
Although there is a statutory provision allowing the district court to order parties contemplating divorce into marriage counseling, it is rarely applied.
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. With agreement by 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 that they follow. JHC’s quality divorce attorneys are fluent in all the different district guidelines in the state of Kansas.
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. Cases may require more discover when there are larger marital estates or custody, residency, or parenting time disputes.
If the parties are unable to resolve all the issues in their case, remaining issues may be presented to the court by each individual’s divorce lawyer 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 to all parties.
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 and after the divorce has been finalized.
From “Ours” to “His” and “Hers”
In a divorce, what was once called “ours” splits into “his” and “hers.” While you can easily agree not to live together, what will happen to the things you’ve worked so hard to acquire? Dividing the marital assets can be one of the most difficult tasks faced by divorcing couples. But, if you and your soon-to-be ex can agree on dividing some of the most commonly contested assets, you may enable the divorce to go a little more smoothly. JHC’s Kansas City divorce attorneys can help make sure you are not left behind when it comes to asset distribution during divorce proceedings.
During your divorce proceedings, 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 and 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. A qualified JHC Divorce attorney can talk to you about the negotiation and appeals process during divorce proceedings.
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 review-able or modifiable by the court, except in limited circumstances.
Kansas Child Custody and Child Support
The following is an overview of Kansas child custody and support laws. Set forth is general information only and not legal advice. Every situation is different and you will need to call one of our Kansas City Child Custody and Child Support attorneys for advice about what to do in your specific situation.
The court is authorized to make any custodial arrangement that it finds to be in the best interest of the child during your divorce proceedings. 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, childcare, 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 divorce 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 do reside together.
Parenting time has replaced the term “visitation” and defines the time periods a child will be with each parent during the divorce proceedings. 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 divorce 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. Divorce mediation is a confidential proceeding during which the parties, with or without their divorce 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 during your divorce is determined by the Kansas Child Support Guidelines. The guidelines provide a basis for establishing and reviewing child support orders, even those settled by agreement. Judges, attorneys, 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.
Child Support Guidelines
After the federal government passed the Family Support Act of 1988, states in the U.S. were required to establish and apply uniform child support guidelines for the determination of child support payments throughout their jurisdiction. These “guidelines” help state courts calculate the monthly support payments, among other issues.
Throughout the country, three methods of calculation are generally utilized, including:
- The income shares model, which combines the income of both parents and allots a fixed percentage of that income, divided equally between both parents, to the financial maintenance of the children.
- The percentage of income model, which only considers the non-custodial parent’s income and allots a fixed percentage of that income toward the financial maintenance of the children.
- The Melon Formula model, a more complex form of the income shares model that incorporates rises in either parent’s standard of living.
In many states, some of these factors are taken into consideration by the court system when determining support payments, a sampling of which includes:
- How much other income each parent receives
- How many children these parents have together
- How much time each parent spends with their children (time-share)
- The actual tax filing status of each parent
- Support of children from other relationships
- Health insurance expenses
- Mandatory union dues
- Mandatory retirement contributions
- The cost of sharing daycare and uninsured healthcare costs
Dealing with the Challenges of Child Custody and Child Support
There are always people who play games with custody issues, parenting time, or child support. All too often the children in family divorce cases are used as tools to punish the other parent. This is where a knowledgeable Kansas City family law attorney will step in and take full control of the messy situation.
If the divorce was a difficult one, life post-divorce is often difficult as well. Many of our Kansas City family law clients find themselves a year or two later looking at late support checks, visitation violations, or problematic decisions that do not serve the best interests of a child. Our Kansas City child custody and child support lawyers are your family’s best friend when it comes to securing the payments, parenting time, and decision-making power that can be so crucial in your child’s development.
Although state laws govern the majority of these issues, over the years, federal legislators have passed federal law which attempt to bring uniformity and enforceability into child support. Some federal laws have made it easier to collect child support payments by authorizing the withholding of wages from, or the interception of tax returns for, parents who are delinquent on their support payments. It is even a federal offense to refuse to pay at least $5,000 in child support. Parents who have pending child support issues should contact our Kansas City office in the event aggressive enforcement is needed.
Naturally, no one wishes to go this route, but if it has to happen, our Kansas City divorce and child support attorneys can bring your ex-spouse back into court for an enforcement procedure, such as wage garnishment or change of orders. When assets are hidden or payments are avoided, we investigate the situation, uncover the missing pieces of the puzzle, and bring this information to the court.
Our Kansas City family law attorneys have also been very successful in resolving child custody and parenting time issues that arise post-divorce. Sometimes custody orders or parenting plans need to be modified. Even if another attorney handled your divorce, we can step in to review your file, consider changes to your family situation and violations of the orders in place, and develop a plan to change what isn’t working for you and your family.
If you need assistance with a child custody or child support issue, contact our Kansas City family law attorneys today.
Kansas City | 816-673-3900
Kansas City, MO 64106
Lawrence | 785-856-0143
Lawrence, KS 66049
Overland Park | 913-948-9490
Overland Park, KS 66212
Topeka | 785-234-3272
Topeka, KS 66612
Wichita | 316-262-9393
Wichita, KS 67214
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