Norton Hare, L.L.C. represents persons in their family law concerns in the states of Kansas and Missouri. Generally, we only handle divorce cases in Johnson, Miami or Linn County, Kansas, and Jackson County, Missouri. Domestic relations cases usually involve divorce, child support, child custody, visitation, maintenance (alimony), and paternity. Our attorneys handle these matters with the same enthusiasm and intensity that we have utilized so successfully in other areas of the law. Domestic relations cases are often emotional and stressful episodes in peoples’ lives. We do our best to guide our clients through the process and achieve a result which is equitable and which will allow them to move on with their lives.
Brief overview of divorce issues in Kansas
The following is an overview of some of the issues common to divorce cases in the state of Kansas. This information does not apply to any other state and may not apply to any one specific case as every legal matter is different. The general guidelines for resolving family law issues in Johnson County, Kansas District Court divorce cases can be found in the “Johnson Bar Association Family Law Guidelines” which provides a good idea of what a court might do regarding various common issues.
To file for and obtain a divorce in Kansas, a person must be a resident of Kansas for at least 60 days. Jurisdiction over the other party must be obtained by either serving them legal process within the State of Kansas or securing their voluntary consent to jurisdiction in Kansas. If a spouse’s whereabouts are unknown, he or she may be served by publishing a notice in a local area newspaper. A respondent in a divorce matter may be deemed to have submitted to jurisdiction in Kansas if he or she engaged in sexual relations in the state which resulted in the conception of a child, or otherwise has sufficient contacts with the state. The venue for the divorce action is in the county where either one of the parties resides.
The fault of either party need not be proved in order to obtain a divorce in Kansas. All that is necessary is to show that the parties are incompatible. The fault of a party leading to the breakdown of a marriage (such as infidelity, abuse, or substance abuse problems) is generally not relevant to a divorce action unless it directly impacts the parties’ finances.
A divorce is commenced when a petition is filed by a party. A petition must contain certain statutory language and contain information about any children of the marriage. The petition must also be “verified” by the client, which means he or she must sign it before a notary public swearing to the truth of all statements contained in the petition. A filing fee must be paid at the time of filing the Kansas divorce petition. Other family law petitions in Kansas may include petition for separate maintenance (legal separation) or petition to establish paternity.
After a Kansas divorce petition has been filed, a petitioner may obtain “ex parte” temporary orders from a district court judge. “Ex parte” means that the judge will only hear from that party and not the other side. The temporary orders typically will grant one party the temporary use of a vehicle and possession of the marital home during the pendency of the divorce proceeding. Temporary orders may grant one party residential custody of the children and order the other party to pay temporary child support and/or temporary maintenance. The temporary orders may also restrain the parties from disposing of assets or from threatening, abusing or harassing the other party or coming near them while the case is pending. The respondent is entitled to a prompt hearing at which he or she may request modification of the temporary orders.
Service of Process
In order for the respondent in a Kansas divorce case to be brought within the jurisdiction of the district courts of Kansas, that person must be served with copies of the petition, temporary orders and a summons requiring them to file a responsive pleading within a certain time period. This is usually done by the county sheriff or an authorized process server. The service cannot be made by one party serving the other. The respondent may voluntarily consent to the jurisdiction of the court and waive service of process. This is usually accomplished by the respondent signing a form that is filed with the court. Once a respondent is served or has entered his or her appearance, the temporary orders take effect.
In Kansas divorce law there is a 60 day “cooling off” period. Absent circumstances warranting an emergency divorce, a final decree of divorce cannot be granted until 60 days have passed since the filing of the petition.
During the cooling off period, the parties will often engage in “discovery”. Discovery is a process in which the two parties exchange information concerning the issues involved in the divorce. The parties may submit written questions to each other, request the production of documents, and take each others’ deposition. Some cases require intensive discovery in which other witnesses are deposed, appraisals of property are obtained, homes and safe deposit boxes are inventoried, and records are subpoenaed. If a party refuses to provide information during discovery, he or she may be sanctioned by the court.
Generally, under Kansas divorce law all property acquired during the marriage is mutual marital property and subject to division by the court. Individual property is property owned by a party prior to the marriage or obtained as a result of inheritance or gift from outside of the marriage. Individual property usually will be set aside to the party who brought it into the marriage and will not be divided by the court. However, appreciation on that individual property which occurred during the course of the marriage may be divided. Courts will try to make an equitable division of the property and debt of the parties to a divorce action. However, this does not necessarily mean assets will be divided equally. Debts are treated much the same as assets in that those acquired before the marriage belong to the person in whose name they were acquired and those acquired during the course of the marriage will be divided between the parties. The fact that one party earned the majority of the assets or incurred the majority of the debt during the marriage does not necessarily affect property division.
Property Settlement Agreements
If the parties can agree as to how to resolve the issues concerned in their divorce the can enter into a separation and property settlement agreement. The agreement is a written document embodying the parties’ understanding as to all issues. The agreement is signed by both parties and taken before the court after the 60 days since the filing of the petition has expired. If the agreement appears fair, just and equitable, the court will approve it and incorporate the terms of the agreement into its decree of divorce.
Any issues which the parties cannot agree on will be tried to and decided by the court. Each party in a Kansas divorce case may call witnesses and introduce exhibits to support his or her position. The court will decide the dispute and make certain orders which will be contained in the decree of divorce.
Decree of Divorce
The decree of divorce is the official court document which dissolves the marriage of the parties. The decree will usually contain the judge’s orders concerning property division, child custody, child support, parenting time (visitation), maintenance, and other issues. Once the decree is filed with the clerk of the court, the divorce is final, although the court retains jurisdiction over issues concerning the children.
The courts in Kansas must make decisions concerning children based on what is in the best interests of the children. “Joint legal custody” is the preferred custodial arrangement where both parents are found to be fit and proper persons to care for the children. Joint custody means both parents have equal rights and responsibilities to the child and each should consult with the other parent concerning major decision involving the child, i.e. education, medical decisions, or religious training. Joint custody does not typically mean that the children will spend an equal amount of time at each parent’s home. One party will usually be named the “primary residential custodian” which means the children will live primarily at that party’s home subject to the other party’s visitation rights known as parenting time in Kansas. “Split custody” is the situation where the children live equal amounts of time with each parent. This arrangement is less common as it is thought to not provide much stability for children, particularly once they are school-aged. “Sole custody” is the situation where one parent is given the power to make all decisions concerning the child, as well as physical custody of the child. The other parent may still be involved with the children and be entitled to parenting time. Further, the non custodial parent may still be required to pay child support.
Parenting time used to be called “visitation”, and sometimes in a Kansas divorce or child custody matter still will be. The non-custodial parent in any custodial situation may be entitled to parenting time with the child. Most courts in Kansas have guidelines which they follow concerning parenting time. Typically, in the joint legal custody situation, parenting time will consist of every other weekend from Friday evening until Sunday evening, one evening per week (not necessarily overnight), and every other major holiday. There may be extended vacation parenting time in the summer time. Of course, parenting time may be different for each family situation and will greatly depend on the age of the child, any special needs of the child, and the distance between the parties’ homes. Again, the courts will usually look at what is in the best interest of the child when determining what parenting time to order. Where one party has sole custody, there may be as much or as little parenting time as the parties agree to or the court orders.
Child support in Kansas is determined in great part by a formula promulgated by the Kansas Supreme Court. The gross income of each party is used to determine child support. Other factors include the age of the child(ren), the cost of daycare, and the cost of health insurance. There are other factors that can be considered where merited by the circumstances. Those values will be plugged into the formula and child support calculated. Kansas child support is subject to the continuing jurisdiction of the court and may be raised or lowered when there is a material change in circumstances like one party’s income going up or down significantly, custody changing, or the children reaching certain ages.
Maintenance is the term used in Kansas divorce cases for spousal support paid after the marriage by one party to the other. This support is sometimes known as “alimony” outside of Kansas. In determining whether one party should pay maintenance to the other, courts will usually look at the present and prospective earning capacities of the parties, the length of the marriage, the parties’ needs, the ages of the parties, the parties’ overall financial situation, and whether one party contributed to the education or career of the other, among other considerations. Fault will not usually be a factor for the court to consider. There are general guidelines for the amount of maintenance to be awarded when appropriate. These guidelines typically will take into account the disparity between the parties’ gross incomes and the length of the marriage in determining the amount of maintenance.
Mediation and Marriage Counseling
A Kansas divorce court may order that the parties participate in marriage counseling or mediation. Mediation is a process whereby both parties sit down with a trained mediator, with or without their lawyers, and attempt to discuss their differences in an effort to come to an agreement as to how to resolve issues in their divorce. Mediation concerning child custody and visitation is often required before a court will decide those issues. Many divorcing couples find mediation very beneficial in resolving their cases as amicably as possible.