If you have been living in marriage for a period of 60 days within the State of Kansas, you are entitled to have your marriage dissolved by Kansas if you so petition. Most Kansas divorces are initiated under “no fault” grounds or what Courts refer to as “incompatibility.” Child custody issues are often included in divorce matters, but may also involve separate jurisdictional grounds. Along with the obvious objective of having your marriage officially dissolved by filing a divorce, the Court will generally determine issues including marital property, debt allocation, spousal support/alimony, child custody and support.
The Court is generally charged with making an equitable distribution of the marital assets, but this does not in any way mean an “equal” division of the marital assets. Kansas Courts will determine what should be designated as non-marital assets and will distribute these items accordingly. This means that if a party accumulated property or debt before the marriage, or otherwise outside of an existing marriage, the Court may order their reacquisition of the same property and debt. This can create unique issues, such as, if there is an appreciation on non-marital property brought into the marriage, this value of appreciation can often be divided between the parties at divorce. Property obtained as a result of inheritance or gift from outside of the marriage may often be considered a non-marital asset and separated entirely to the spouse for which it was intended. One of the more complicated property division/debt allocation issues is when you have a high-asset divorce where the parties have multiple streams of income, multiple trust or similar accounts, or may own a business. Leiker Law Office, P.A. in Overland Park maintains professional relationships and collaborates with a number of firms who can provide critical expert services in these types of high-asset divorce situations, and help ensure that your financial interests are protected in the event of a hostile and contested divorce trial.
Kansas recognizes common law marriages. If you have been holding yourself out to the public as a married couple, even though there was no official ceremony, you may be considered married by a Kansas Court and will need a divorce case to dissolve the union.
The filing of a verified petition along with payment of the statutory filing fee (currently $195.00 in most counties) will commence a divorce action. Personal service of summons upon the opposing party is generally required if you need the Court to make orders pertaining to child custody and property division. Service may be obtained by publication if you are unaware of the opposing party’s whereabouts. However, this may limit the Court from issuing orders over certain items due to a lack of personal jurisdiction.
Kansas law allows for attorney’s fees to be requested in a divorce proceeding by a spouse in the event that there is an inequity in the litigants’ respective income. If a Court determines this to be the case, often a Judge will order the prevailing party to get reimbursed for costs by the other party so that they can afford proper legal representation.
A Court may award spousal support/alimony to a party in a divorce action upon request. There are several factors when making this determination by a Court, and the trial judge has a very wide range of discretion when ordering spousal support, but may not issue an order for spousal support that exceeds 121 months. The factors the Kansas Court will often consider are discussed in Williams v. Williams, 548 P.2D 794 (1976). Many jurisdictions have published guidelines for whether or not a Court in that county should award maintenance, and a common calculation to determine the length of maintenance to be paid is to a spouse is to order the duration of payments to last as long as one third of the total length of the actual marriage.
An annulment of a marriage is requested when one party seeks to have their marriage determine to be invalid. If an annulment is granted, legally it is as if the parties were never married. A Court is still free to consider property division, debt allocation, child custody, even if your marriage is annulled. Additionally, a person seeking an annulment must prove to the Court that there are grounds for one (fraud, mistake of fact, etc.).
The grounds for filing this action are the same as when filing for divorce. However, if you obtain a decree of separate maintenance from the Court, your marriage continues. All other issues normally determined in divorce may be decided with this action. You may ask the Court to separate property and debt, establish orders of child custody and child support, and to order spousal support. This type of action may sometimes be converted into an actual divorce action if the litigant petitions the court to do so.
Judges often refer to a divorce filing as a “race to the courthouse.” When filing for divorce in Kansas, the statutes entitle you to interlocutory court orders, pending the outcome of the action. Since an action can last several months, these orders will sometimes determine how you can live your life for a very long time. Typically, temporary orders involve who can live in the marital home, who will drive what automobiles, and how other specific property will be dispersed while a divorce is pending. Additionally, if appropriate, the Court will make temporary orders of child custody and support. Whoever files a divorce action first will get the first opportunity to speak with the Judge and get their temporary orders signed. This doesn’t mean that a person who gets sued for divorce will have to permanently live with these orders, but getting back into court to change them can be expensive, time-consuming, and may ultimately fail. There is almost always an advantage when you get to be the one to present your orders to the Judge first.
If you have been sued for divorce, a responsive pleading is due to the Court normally within 21 days of your having been served with process. Failure to file a timely answer may result in an admission of whatever is contained in the divorce petition, and a possible default judgment against you if you have not entered an appearance in the case. If you feel that you may be in danger of missing a deadline to file papers, consult with an attorney immediately and have them check with the County Clerk for your specific dates. You may also file a counterpetition for divorce when you submit your answer to the original petition.
Generally, a person must wait 60 days after filing a petition for their divorce to be heard by the Court. However, Kansas will entertain emergency actions. If the parties can testify to a valid reason for needing an emergency divorce, judges have a wide range of discretion in allowing the parties to divorce before 60 days have elapsed.
The discovery process is normally what holds up divorce proceedings. You are entitled to get a very detailed accounting of financial and property information from an opposing party, as well as their opinions and calculation regarding the award of child custody and support. This is usually done with interrogatories and requests for the production of documents. However, depositions of witnesses may be taken if deemed necessary.
The parties may choose to develop a settlement agreement during this time. This agreement will encompass all issues in a divorce, including division of the marital assets, the award of spousal support/maintenance, child custody, and child support issues. If the agreement is fair and equitable, the court will approve and incorporate the same into the divorce decree after the statutory waiting period has run. Separation agreements are defined by Kansas law in K.S.A. 23-2712.
Matters settled by a settlement agreement incorporated in a divorce decree are usually final and may not be modified after certain deadlines to reconsider or appeal have elapsed. However, matters pertaining to child custody or child support may often be re-litigated as the children’s interests require.
If there is a custody battle, the Court will want to collect an unbiased report as to what custodial arrangement will be in the best interest of your children. Many Courts will also order the parties to engage in a mediation process to try and agree on at least some of their contested issues, and a guardian ad litem or child custody investigator may sometimes be appointed to investigate the matter for the Court.
In the event of a situation where the Court feels your child needs representation during the action, the Court may appoint a Guardian ad litem to represent the child’s interests as their own attorney.
Any issues that remain unresolved between the parties will be tried by the Court. This is the opportunity for the parties to present their case before the Judge. In addition to evidence collected during the discovery process, the Court may hear evidence from expert witnesses regarding such issues as property/business appraisal, child custody, spousal support, etc. The Court will develop its final orders from this hearing, and will then issue a decree of divorce. Kansas law regarding marital property definitions and division may be found in K.S.A. 2801 and K.S.A. 23-2802. Child custody laws are discussed further in the child custody section of this site.
After a decree of divorce is entered, you will still be prohibited by the Court from contracting into marriage with another until 30 days have elapsed. This period represents the time for which a party may appeal the decree of divorce in your case. If an appeal is successful, you may still be married and a subsequent marriage would be invalid. Also, you have a very limited time to ask the Court to reconsider its ruling. If you are unhappy with your decree of divorce and would like to see about changing it, contact an attorney immediately to help you file an appeal or motion to reconsider your case.
If you are considering filing for divorce in Kansas, schedule a consultation with Leiker Law Office in Overland Park today to discuss your case.