ARE THERE ANY BENEFITS IN FILING FIRST FOR DIVORCE?
May 4, 2020
In some cases, there are. A divorce is a civil action just like it is a car accident or a breach of contract, whatever the case may be, it is a civil action. Every civil action starts with the petition which lays out your allegations and at the end, what it is you want the court to do for you. So in a divorce action, it is you got married to this person on a certain date, you have children so a parenting plan needs to get entered, there are assets and debts that need to be divided, there might be spousal maintenance that needs to be awarded and “Judge, if we can’t figure it out, you need to do it for us, thank you”, at the same day that that petition gets filed, the case gets assigned to a judge.
On an ex parte basis, the judge will conduct a hearing just hearing one side of the story. So you can get ex parte temporary orders entered in the state of Kansas with a parenting plan in place, a spousal maintenance entered and child support entered and in some cases, even kicking a party out of the marital residence. When the other side gets served with those ex parte orders, they are in effect at that time. Now, the Kansas statute provides that the party that gets served with those orders, if they do not like them and in many cases, they do not, by statute, the court has to have a full hearing on the respondents, the party who got served with the other, on their motion to modify. It is fourteen days from the request, not from when the motion is filed.
A lot of times, that will be done just by email to the judge’s administrative assistant. When I say full hearing, I mean both parties are there present with their lawyers. In my view, if you are going right into it, if you are not playing games with the judge or in any way shading the facts when those ex parte temporary orders get entered, you do have an upper hand at that full hearing because basically you can just go into the full hearing and say, “Your Honor, look, we gave you both sides of the story as we understood it at the ex parte hearing”, which by the way, you are ethically obligated to do anyway, you need to give both sides of the story. If you did that, you should be in very good shape at that full hearing. In Kansas, in a lot of cases, it behooves you to be the first one to file.
Can Something Be Done To Counter False Allegations Made By A Spouse In A Divorce Proceeding?
In Missouri, if a PFA action (Protection from Abuse), or it is not as common but a PFS (Protection From Stalking) action is filed simultaneously with the dissolution of marriage action, those are going to be in front of two separate judges. There are basically two tracks to take in regards to the PFA or PFS actions to show up, present evidence of you are not acting in the manner that is alleged in the petition. The statutes in both Kansas and Missouri for those types of actions, PFA and PFS, are written and designed in such a way to that individuals without lawyers can access the system, represent themselves on a pro se basis.
But there are some very technical specific things that need to be laid out in a protection from abuse or a protection from stalking action. There are very specific definitions, for example, as to what constitutes stalking. I have filed motions on legal grounds and prevailed arguing that the incidents described in the petition by the pro se party did not constitute abuse or stalking. Sometimes instead of just going in and arguing facts, you can prevail as a matter of law and you get the petition dismissed on those grounds. Another way to do it would be if the relationship is so broken, what you can do is just agree in the divorce action to get the same or similar orders entered and to then just dismiss the protection from abuse or protection from stalking order.
When I say the same orders, I mean specifically the no contact orders. If there was a residential custody schedule put into place to a PFA or PFS action that is something that you need to go to the mat on, but if it is just a no contact, a lot of times, the parties will say, “Fine. Let’s put the same orders in the divorce action and then get it out of the courtroom away from that other judge”.