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1. INTRODUCTION
a. Divorce is usually a
difficult and stressful time. We present the following information in
the hope that it will relieve some of your anxiety and help you understand
the steps involved. Please don’t hesitate to ask us questions!
b. Also, please don’t rely on
this information as your predominant or final source of information.
Each case varies depending on the facts, and this isn’t a substitute for
analysis and direct advice from us in a conference.
c. Use of this website does not establish an attorney-client
relationship. We would be
happy to confer with you about this toward formally becoming your
lawyers. Until such time as we
expressly agree to become your counsel, we will not consider ourselves engaged
on your behalf and you should not do so either. Please contact us to discuss this further as we would
like to consider representing you.
2. LEGAL
SEPARATION
Although a legal form of legal
separation called “Separate Maintenance” is available in Kansas, it is not
a very common procedure because it is frequently merely a prelude to
divorce and increases the total cost of the legal services to the
family. Legal separation leaves the parties married to each other
while providing a court order covering such subjects as property and debt
division, ongoing child support and custody, and spousal support. In
some limited situations, it may be desirable as an alternative to
divorce. Feel free to ask about legal separation if you feel it may
be more appropriate in your situation. If you are not sure you want a
divorce, we will sometimes recommend counseling services to see if the
marital problems can be worked out.
3. GROUNDS
a. Most actions for divorce in the State of Kansas are
filed on the ground called “Incompatibility”. In filing the divorce
action, the Petition need only state that the parties are
“incompatible”. It is not necessary to allege or prove such traditional
grounds as adultery, cruelty, physical abuse, abandonment, etc., even
though such conduct may have occurred. But if these circumstances
exist, please be sure to bring them to our attention to discuss.
b. Occasionally one spouse will state, “I will not give
you a divorce” or “we are not incompatible”. While one spouse may
object to the divorce, the final authority to grant a divorce belongs
solely to the court; the parties involved do not have the power to “give”
or “not give” a divorce. In virtually all cases if one party wants a
divorce the court will grant one.
4. RESIDENCY
REQUIREMENTS
Either you or your spouse
must have been a resident of the State of Kansas for at least 60 days
before the filing of the Petition for Divorce. Usually the divorce
action is filed in the county in which you reside or your spouse
resides. We will be happy to discuss the exceptions to this procedure
if you wish to file in a different county.
5. STARTING
THE PROCESS
a. Who should file? There is no legal significance
to whether the husband or wife files the Petition, although there may be
procedural and tactical advantages for the one who starts the case. (The
Petitioner).
b. The first step is to file a petition. The
petition contains the following information:
i. Date and place of marriage;
ii. Residence of the parties;
iii. Names and ages of children of the marriage;
iv. Grounds for divorce;
v. Request for a division of property and debts; for
provisions pertaining to residence and parenting time; and for child
support and spousal maintenance (alimony);
vi. Change of Wife’s Name: a wife’s former name may be
returned to her as part of the final Decree. If you want your name
changed, it is best if you let us know before we prepare the Petition.
c. If there are minor children, an Affidavit setting
forth the facts regarding their residence and the persons responsible for
the custody of the children over the last five years is filed with the
petition.
d. If you are seeking temporary support for your minor children
and/or temporary support for yourself, a Motion for Temporary Support may
be filed with the petition. It will be accompanied by another
affidavit (called a “Domestic Relations Affidavit”) containing information
about your incomes, the number and ages of your minor children, your
monthly expenses and debts and how much support you are requesting to meet
those needs.
e. If the Court finds your request for temporary support
reasonable, it will issue a “Temporary Support Order,” sometimes called an
“Interlocutory Order” or just “Temporary Order.”
f. If your spouse has already filed, be sure to bring us
a copy of the Petition and other court papers - especially if it was
delivered to you by the sheriff, a process server, or your spouse’s
attorney.
6. SERVING
THE PAPERS
a. There are two main ways to notify your spouse
officially that you have filed a divorce action:
i. Your spouse may sign a written receipt (called an
“Entry of Appearance”) for a copy of the petition and any other papers
filed at the same time. The signing of the receipt acknowledges that
the Court has jurisdiction over the parties. It does not mean that
your spouse has agreed to any of the requests in the petition or other
papers filed. The receipt can be signed in our office or mailed with
the necessary papers to your spouse. In some cases, if your spouse
will come to our office to pick up the papers, your spouse is not required
to sign for them because we can sign saying we gave the papers to them.
ii. If your spouse is unwilling to sign a receipt or pick
up the papers or you don’t want to handle it that way, the Sheriff will
deliver (“serve”) a copy of the Petition (and temporary orders, if any) to
your spouse. Your spouse will then have twenty to thirty days in
which to respond to (answer or oppose) the petition.
7. RESTRAINT
ORDERS
a. If you have reason to fear abuse or harassment from
your spouse as a result of filing a Petition for Divorce, a restraining
order can be issued by the Court, giving you exclusive possession of your
present residence and forbidding your spouse to enter it except to remove
personal clothing and effects and restraining each of you from harassing or
abusing the other.
b. The restraining order can be served by the Sheriff
along with the petition and temporary orders, or it can be one of the
papers delivered to your spouse when the receipt document is signed.
c. A restraining order should also be considered
prohibiting sale or destruction, etc. of property or depleting of accounts.
8. ONE
LAWYER OR TWO?
a. It is neither practical nor ethical for a lawyer to
represent competing interests. An attorney can only have one client. In
those instances where you and your spouse have agreed on everything, it may
be possible for us to do all of the legal drafting for you.
b. If your spouse is comfortable signing the Agreement
which we prepare at your direction we can get matters completed relatively
easily. If he/she has questions they are free to consult their own
counsel.
9. UNCONTESTED
DIVORCE
Your divorce will be
“contested” unless you and your spouse agree on all aspects of custody,
parenting, support, property settlement, and the payment of liabilities,
attorney’s fees, and court costs. If your spouse disputes any of these
matters, you have a “contested” divorce. In either case, a trial or
hearing before the Court is required, but it can be a very brief hearing in
an “uncontested” case.
10. FEES
AND COSTS
a. The Court Clerk charges a small fee (approximately
$100) when a divorce case is filed. In most cases, there are usually
no other “Court costs” collected by the Clerk of the Court.
b. Our legal fees are based upon the time actually
expended on your case, the complexity of the case, the novelty of the
issues involved, and several additional factors. No divorce case is
like any other, so “standard fees” are difficult to predict or
provide. The exact fee will vary with the services you require.
We have another document which we will provide you with that more fully
addresses our fees.
c. Our divorce services include the initial conference;
the preparation and filing of the Petition (or review of the Petition filed
by your spouse); the preparation of an Entry of Appearance (or “receipt”)
to be signed by your spouse, or arranging for the sheriff to serve your
spouse with a copy of the Petition; conferences to obtain information from
you concerning your assets, liabilities, income, and expenses and to make
recommendations about property division and support (the fewer conferences
and the more organized you are, the less time we need to spend and thus
lower attorney fees); routine or extended settlement negotiations with your
spouse’s attorney; preparation or review of a Settlement Agreement;
preparation or review of a Divorce Decree; preparation or review of forms
required by the Kansas Bureau of Vital Statistics, The Kansas Payment Center
and The District Court Trustee; and representing you at
the Court hearing or trail to obtain the divorce decree.
d. Depending upon the circumstances there may be
additional conferences, extensive negotiation, more complicated tax
planning and advice (such as spousal maintenance arrangements), drafting of
various provisions in parenting plans and additional Court appearances.
e. If a trial is necessary, the Court may order either
party to pay some (but usually not all) of the other party’s legal
fees. This is usually fairly rare, but it is possible. If you are our
client, you are primarily responsible to us for paying our fees and we will
give you full credit (or a refund) for any payments made by your spouse (if
any).
f. We frequently require a refundable deposit
(“retainer”) and additional funds in advance of providing services. We
will discuss our fees with you at our first meeting and provide you with
another document outlining our fee policies.
g. The degree of cooperation and agreement between you
and your spouse (and your spouse’s lawyer too!) regarding matters of child
support, parenting, and property and debt division has a direct effect on
the amount of time which we will have to spend on your case, and,
therefore, the fees charged by our firm.
h. It is almost always in your best interest to come to a
fair and equitable division of property and debts and a reasonable
agreement concerning the support, custody, and parenting time with children
if possible.
i. Emotional “blackmail” or a desire for revenge for past
or present transgressions can cloud the issues and almost always results in
increased legal fees.
j. Other factors which may increase the cost of a divorce
action where the parties cannot reach an agreement might be:
i. Depositions - A deposition is testimony under oath,
taken by a court reporter in which the attorney (or attorneys) asks
questions of a witness or party regarding the issues in the case.
This is usually done in the attorney’s office. The reporter’s
services alone may cost from $100.00 to as high as $500.00 or more, in
addition to the legal fees.
ii. Costs for making copies of tax returns, financial
statements, medical reports, various documents etc.
iii. In some cases, the parties may disagree concerning the
proper value to be placed on a business, land, home, or other asset.
In such cases, experts may be necessary (appraiser, accountants, business
brokers, etc.) to establish the values.
iv. In matters relating to child custody and parenting
disputes, there may be need for evaluations of the parties and/or
children. Behavioral professionals (psychologists and/or social
workers) are usually used for these. The professional fees can add
from $150.00 to more than $1,500.00 to the divorce costs.
11. CUSTODY,
RESIDENCY AND PARENTING TIME
a. Your children, although technically not “parties” to
your divorce action, are deeply involved in the changes that a divorce will
make in your family. The Court will make whatever orders the Judge finds
necessary to protect and provide for the best interests of the
children. The Court’s orders will cover such items as legal custody,
residency and parenting time with the children, and the support of the
children. “Mediation” conferences with a neutral mediator to see if
you and your spouse can work out an agreement about the children are
frequently (virtually always in Harvey County) required by the Judge before
the final hearing (see section on Mediation).
b. Although a divorce ends the legal relationship between
you and your spouse as partners in marriage, it does not end the legal
relationship that each of you has as a parent to the children. Each
of you will continue to have, after the divorce, the same obligations as a
parent that you had before the divorce. You will most likely be
awarded “joint legal custody” of your children and will share the duties of
guiding their education and religious training; selecting their doctor and
dentist; being responsible for their discipline; etc. Unless the
Court decides that joint legal custody is not in a child’s best interest,
both parties will continue to be involved in these major decisions.
c. Whether the court orders “joint” or “sole” legal
custody, one of your residences will usually be designated as the residence
of the children. The Court will establish a parenting plan which sets
out parenting time for each of the parents. Kansas has done away with
traditional “visitation.” The right of time with each parent is as much the
right of the child as it is the right of each parent. The purpose of
parenting time is to permit the child to continue to have contact with both
parents to as great an extent as possible.
Usually, the parents are
encouraged to submit to the court a parenting plan put together by the
parents, setting out the children’s time with each of them.
d. Parenting plans and parenting time really require that
the parents cooperate with each other as mature adults to ensure that good
co-parenting takes place, that it is for the benefit of the children, and
that it is convenient to the schedules of both parents, and the children
themselves.
e. If you and your spouse can agree on the details of a
parenting plan, the Court will usually approve the plan which you have
worked out. A typical pattern of parenting with the non-residential
parent is to be together with the children on alternating weekends, an
evening or two during the week, several weeks or more in the summer, some
time around birthdays, Christmas and other holidays, plus additional or
different times as you may agree upon.
f.
If a parenting plan cannot be arranged between the parents by
agreement, either of them may ask the Court for an order specifying a
parenting plan. Our Courts in Harvey County virtually always require
mediation (see that section) and if mediation fails, then a child custody
investigation is done with a court worker recommending a parenting plan to
the Court.
12. CHILD
SUPPORT
a. Similarly, though parents may be divorced from each
other, they remain parents obligated to provide for their child’s financial
needs. This is a duty which both parents have, and neither of them
can “bargain it away” through an agreement with the other parent. It
is the child’s right to be supported and the Court will usually protect his
or her right, despite an agreement between the parents that no child
support shall be paid.
b. Kansas Courts have a “customary support” (known as
“guidelines”) scale from which we can, with reasonable certainty, estimate
the amount of child support that will be required in a particular divorce.
c. The factors involved in the determination of the child
support include the ages of the children, the number of children to be
supported, the non-residential parent’s income, the residential parent’s
income, any special educational or health needs of the children, and
similar factors.
d. Child support is normally payable until the children
reach the age of majority (in Kansas, 18 years old or to the end of the
senior year while the child is attending
high school). The obligation to pay child support may, by agreement
between the parties, be continued beyond the age of majority to cover such
matters as educational expenses in college and the like, but such an
obligation cannot be imposed by the Court without the agreement of the
parties.
e. The payment of child support, (whether temporary child
support during the proceedings or permanent child support awarded in the
divorce decree), should not be thought of as equivalent to the purchase of
a “ticket” to see the children. The child support obligation is owed to the
residential parent and it is one which will likely be enforced by the Court
(through a Court Trustee and Income Withholding Orders) if payments are not
made.
f. The residential parent does not have the right to deny
parenting time simply because the other parent has not been “on time” in
making child support payments or may be behind in the child support
payments. Denial of access to the children should not be used as a
“lever” to enforce a financial obligation which exists between the
parents.
13. MEDIATION
a. Domestic mediation is a process for those who are
divorcing or have post-divorce conflicts to work with a mediator in order
to resolve the problems created by divorce. A mediator is a neutral
third party whose role is to assist each party in defining the conflicts
and work toward an agreement which is beneficial to both parties as well as
their children. This process was created to reduce the stress of
divorce by allowing the parties to come to mutual agreement on
issues.
b. Mediation agreements are used to resolve issues such
as custody and parenting time with children, division of assets and
liabilities, support payments, and other issues that the parties wish to
include.
c. Attorneys, mental health agencies, practitioners, and
some courts can refer parties to a mediator.
d. Mediators may or may not be lawyers, but they will not
act as legal representation of either party. Each party should have his or
her own attorney review a mediation agreement before signing it. The
mediator does not make any decisions for the parties, but helps them to
come to their own agreement. The court, however, does retain the right
to review and amend the agreement.
e. Once an agreement has been reached, the mediator will
put all of the details in writing and give copies to both parties as well
as their attorneys. After being signed, it goes to the court for
approval. Upon approval by the court, the agreement becomes
enforceable like any other court order. Agreements that are created
by the parties themselves are more likely to be followed; however, if the
agreement is not being complied with, the parties should contact their
attorneys.
14. SPOUSAL
MAINTENANCE (ALIMONY)
a. Alimony was originally based, in the
17th and 18th centuries, on the fact that a woman was
not entitled to receive an education, could not work outside the home, and
could not obtain income to support herself following a divorce. Thus
the husband, if he wanted a divorce, was obligated to provide financial
support until his wife’s death or her remarriage, since she obviously
couldn’t support herself.
b. Spousal maintenance is usually awarded today, either
a) because the parties agree that a payment of spousal maintenance is
appropriate or b) for a fixed period of time, in order to enable the
recipient of the spousal maintenance payments to complete an education or
otherwise become self-supporting or to provide some continuity in lifestyle
for a period of time. The initial order for spousal maintenance, if
imposed by the Court rather than by agreement, cannot last for more than
ten years, although extensions can be ordered where justified.
c. Sometimes a part of the support payments are termed
“spousal maintenance” by agreement, because such payments are taxed
differently than child support or property equalization payments. A
recipient of spousal maintenance (“alimony”) pays income tax on such
money received as though it were earned income and the payer is allowed a
deduction from income for the amount paid.
d. We will discuss with you the arrangements that are
most advantageous to you and guidelines used by attorneys and courts.
15. PROPERTY
AND DEBT DIVISION
a. The Court will not allow a wife to “take her husband
to the cleaners”. Nor will the Court allow him to “cut her off
without a dime”. The law requires an “equitable division” of the property
and debts, taking all factors into consideration. We will work with
you to reach a fair division of your property and debts (regardless of who
paid for it, or whose name it is in) which will be expressed in a
settlement agreement. The settlement agreement will include terms
relating to support, insurance (health and life), responsibility for taxes,
claiming dependants as exemptions on income tax returns, division of
property and debts, and other matters relating to the dissolution of the
marriage.
b. It is our earnest desire that, with our help, you and
your spouse can reach such an agreement. If so, it will be signed by
you both and likely accepted and filed with the Court at the time of the
divorce hearing.
c. If you cannot agree, a trial will be necessary for the
Court to decide how your property and debts shall be divided. If the
Court makes the decision, you are bound by it, even if you do not agree
with the decision. Therefore, it is usually in your best interest to
reach an agreement prior to the divorce hearing if possible (and if
something close to what the Court might do can be agreed upon.) The
Court will usually accept the terms of a settlement agreement reached by
the parties.
16. PREMARITAL
AGREEMENTS
a. In some marriages, the ability of the parties (and the
Court) to divide the marital property and debts may be limited by an
existing “Premarital” agreement (also sometimes called an “antenuptial”
contract).
b. If you believe that there is a premarital agreement
which relates to your marriage, you must let us know immediately, and bring
us a copy of it.
17. LIFE
AND HEALTH INSURANCE
a. Each of the spouses has certain rights under
applicable state and Federal law to a continuation of their right to
participate in employer-provided group health insurance plans at their
former spouse’s place of employment. A notice to the employer that a
former spouse wishes to elect continued coverage should be given within 30
days after the decree of divorce is filed at the Courthouse. If you do
not have health insurance of your own, you may wish to consider electing to
a continuation of your coverage under your spouse’s plan.
b. While life insurance coverage for the benefit of a
former spouse is not normally required, one or both of the parties may be
required to keep insurance in force to protect the payment of child
support, property division, or spousal maintenance payments not yet made.
c. In addition, Kansas child support guidelines provide
that the parents of minor children will be required to pay the uninsured
costs of medical treatment for their children usually in proportion to the
parent’s respective incomes. It is therefore important that medical
insurance for children be maintained whenever it is available.
18. HOW
LONG DOES IT ALL TAKE?
a. An “uncontested divorce” (the parties
fairly quickly and early on agree on all matters relating to the divorce)
can be accomplished in about sixty to ninety days from the date of filing
the petition (or even sooner if the Court agrees that there is a genuine
emergency which justifies shortening the required 60-day waiting period).
b. A “contested divorce” (if there is any item,
such as property or debt division, support, or child custody or parenting
time on which the parties don’t agree) can delay the final hearing for many
months, because added time is needed to develop the facts with witnesses
and exhibits and more time must be reserved on the Court’s calendar for
presentation of the evidence.
19. FINAL
DIVORCE
a. If there is no appeal, your divorce will be final the
day the Judge signs the Decree. An appealed divorce is not final
until the appeal is decided. The parties have 30 days from the filing
of the Decree to appeal. Appeal requires “grounds” and is very rare.
b. Any remarriage during the 30 days after entry of the
Decree is “voidable” if an appeal is taken and the Decree is
overturned. If an early remarriage is in your plans please let us
know.
20. MOVING?
JOB CHANGE ?
a. Kansas law requires a parent
who has been awarded a child’s custody to give written notice to the other
parent at least 30 days before changing the child’s residence (even within
Kansas) or removing the child from Kansas for more than 90 days. The
notice must be sent by restricted mail, marked “return receipt requested.”
The purpose of this notice is to allow the other parent time to object and
be heard by the court. Failure to give the required notice can result
in custody being changed to the other parent and is a contempt of court.
b. Some court orders and
District Court Trustee policies and procedures require that notice be given
of any job change or move within 7 days of the change.
21. RECONCILIATION
a. Sometimes divorce seems like the only solution.
Often it is not. After a divorce action is commenced, you and your
spouse may decide to try to work things out.
b. We support reconciliation, and if you decide to drop
the divorce action you will owe only for those services actually performed.
22. DATING
This is a very difficult area
and if this is an issue it’s important that you discuss it with us
early. It is possible that dating will cause problems in attempts to
settle your case or particularly in custody and parenting time
issues. We’ll be happy to help you make informed decisions in this
area.
23. CONFIDENTIALITY
We must have all the facts to
represent you properly. Anything you tell an attorney or an employee
of this office is strictly confidential and will not be disclosed without
your permission.
24. KEEPING
YOU INFORMED
We will do our best to see
that you receive copies of all documents prepared or received by us.
At the time of your initial appointment, you will meet our legal
assistants, who will be available to help you if an attorney is
unavailable. They can give you information or take messages.
Try to work with them. It will make things easier and will reduce the
cost of your divorce.
25. OUR
PROFESSIONAL SERVICES
Your legal problems will be
given our continuing personal attention in an effort to obtain the best
results possible for you in the most reasonable time and at a reasonable
cost.
26. YOUR
RESPONSIBILITIES
We expect you to be
cooperative and truthful. If you are not, we will not continue to
represent you. We also expect you to handle your financial
commitments to our office in a prompt and business-like manner.
Please notify us of any change of address or telephone number or if
you learn of anything that may affect your case.
27. GENERAL
SUGGESTIONS
a. Do not telephone or write to the
Judge concerning your case. It creates the impression that you are
seeking some special treatment. The Judge will refuse to discuss your
case unless all parties and their counsel are present.
b. Well-meaning relatives, friends and associates will no
doubt offer you advice about your case. Frequently such advice is not
accurate and you should be cautious in following it. Your marriage,
divorce, children, and property and debts are unique and they differ from
every other family’s. Divorce proceedings are very emotional and
parties sometimes seek revenge. You should also be thankful for the
emotional support provided to you by friends and relatives.
c. Try to cooperate with your spouse where the children
are involved. Discuss support and division of such items as the
children’s property and your household furnishings with your spouse unless
you are instructed not to. Try to be fair in these discussions.
d. The proper handling of a divorce requires more than
just “filing the papers”. Even at best, a divorce is a painful
process. We will be happy to recommend counselors for you or your
children to help you cope with the emotional trauma of divorce.
e. You may also wish to consider financial or investment
counseling and estate planning following your divorce. If so, please
let us know.
28. CONCLUSION
a. A reminder that this information is not the final word
or “exact” as to the law and you are encouraged to discuss your particular
facts with us or another lawyer.
b. Thank you for considering us or choosing us to assist
you with your divorce. We are committed to providing high quality
legal services in as cost-effective a manner as we can. We truly want
to try to ease at least a bit of your burden as you deal with this
difficult time. Please feel free to let us know how you feel and what
we can do to better meet your needs. You will always have our best
wishes for the future
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