FREQUENTLY ASKED DIVORCE QUESTIONS

Dissolving a marriage is not something to take lightly.  When two people get married, their families, friends, finances, and rights become so intertwined that it can be challenging to separate them.  When you're looking into making the break, many questions arise.  In many instances, you are walking into uncharted territory and need an experienced divorce attorney to not only answer the questions you have but to answer the questions you might not even know to ask.  The answer to some family law questions can be looked up in a book or deciphered from a statute, but neither of those resources will give you a complete picture.  How does a particular judge like a case presented?  What witnesses need to be presented to get a favorable outcome on a child support modification? Which guardian ad litem is the easiest to work with?  These are the types of questions that only an experienced divorce lawyer can answer.  

There is no substitute for sitting down with an experienced divorce attorney and discussing the goals you have for your case.  The divorce lawyers at Roth Davies, LLC have compiled a list of some of the most common divorce-related questions and published them below to help you navigate your divorce case.  If you need help, feel free to reach out for a consultation.

DO I NEED AN ATTORNEY FOR A DIVORCE?

Deciding to divorce a spouse is a tough decision and involves many considerations – emotional, legal, religious, social, and many others. After deciding to divorce a spouse, the next step is deciding whether you should hire an attorney. This also may be a difficult decision, influenced by many factors and considerations. When determining if you need to hire an attorney to protect your interests during divorce proceedings, consider some of the information below.

Basic Considerations

In deciding whether you should hire an attorney, you should approach the decision like you would when hiring any professional. First, you have to determine if you have the skills needed to complete the task on your own. Not every case requires the complete knowledge and skill of a lawyer, just as not every car repair requires the full skills of a mechanic. However, the law may differ from these other skills. The tricky part of legal problems is that what you need to know and what you need to do to get the result you want can be challenging to guess. You may see the result you want and, perhaps, you even have the skill to obtain the result. However, there is danger that lies in the unknown.

In most other fields, assuming you do not need a profession involves low risk. If you fail to change your oil yourself, you can take it to a mechanic to have it fixed. Legal mistakes are not so easily fixed once made, due to finality and waiver. Finality means you get only one chance to resolve a legal problem. Once a court has decided on your problem, you cannot try again if you do not like the outcome. In divorce, this means that you will be stuck with whatever you were able to obtain for yourself, the amount of spousal support, the amount of child support, and the division of property. A waiver can have even more devastating effects. In a legal action, such as a divorce, a party must play every card they have at their disposal the first time through. Any argument, defense, etc. that is not brought before the court promptly is waived. Once waived, it is gone forever. Hiring a lawyer after something is waived will not fix the mistake. Finality and waiver present many risks in legal proceedings, and these risks are not likely ones you want to take, given that your home, your property, your money, and even your children are at stake.

Other Considerations

In addition, the specific circumstances of the divorce should be considered. Most importantly, does the other side have an attorney? When your spouse hires an attorney, the dangers of representing yourself multiply tenfold. In American courts, judges are not advocates for either party; instead, they are required to be moderators and decision-makers. Each party is responsible for identifying what they want, how the court can grant it, and why the law allows that outcome.

This may seem simple enough, but consider the following example. Suppose something significant comes up on a scheduled court date, like a funeral. You want to move the court date to another day, but you cannot just call the court to ask for a change – that would be inappropriate. Instead, you would need to file a motion for a continuance under § 60-240, complying with all Kansas Rules of Civil Procedure and all local court rules. However, that is not all; the other side may object to your motion, and the court will have to determine who is right. You will have to provide a law that says you are entitled to the result you are seeking because courts rest on legal authority, rather than common sense. If your spouse has an attorney, you are at a significant disadvantage, even in simple matters like changing your court date.

If your spouse is representing themselves, it is essential to consider how amicable the divorce will be. If there are disagreements, self-representation will not be a viable option. The courtroom is a place of law, and you must use legal reasoning, not common sense or emotional appeal, to demonstrate to the court why you should get the result that you desire. If you and your spouse are fighting over property divisions, support amounts, or other parts of a divorce, it is less likely that you will be able to present legal arguments in the heat of the moment. Even if the divorce is amicable and uncontested, it is essential to consider whether it will remain so throughout the proceedings. When it comes down to it, will your spouse actually agree to let you stay in the marital home or pay you the equity that you have put into the house? Amicable divorces can quickly turn hostile when disagreements arise. Having an attorney will help you navigate the legal aspect of the divorce, but, perhaps most importantly, an attorney will provide you with an outside perspective, free from the emotional ties that both parties have.

Deciding not to hire an attorney is a huge decision that should not be made lightly. Even if getting what you want seems easily obtained, knowledge and experience with the law are the only things that will ensure you succeed in court. Contacting an experienced attorney is imperative because the attorney will be able to identify issues you may be unaware of and will protect your best interests throughout the entire proceedings. This is important because there is only one shot at divorce, and the results will last for years. This means you could spend your entire life living with even a simple mistake.

HOW LONG DO I HAVE TO WAIT BEFORE I CAN GET DIVORCED, AND HOW LONG WILL A DIVORCE TAKE?

The decision to dissolve a marriage is rarely easy. The law, however, is designed to ensure the parties seeking a divorce have thoroughly considered their decision and that the most just outcome is reached. This is accomplished by various waiting periods in the procedure. Additionally, the law will impose additional time periods to allow opposing parties to respond and for the limited judicial resources to hear the matter. Below is a rough timeline of what will happen and when it will typically happen.

Filing For Divorce (At Least 60 Days Of Residency By One Spouse)

Divorce is begun by filing a Petition with the court requesting that the marriage be dissolved. There is no minimum time a couple must have been married before a spouse files a Petition. However, specific considerations should be taken into account when a marriage of under a year is ending. First, particular grounds allow a marriage to be annulled, which may proceed more quickly than a court divorce. Annulments must be supported by a reason to invalidate the divorce, such as fraud by one spouse.

To put it another way, all marriages may be ended via divorce, but most marriages cannot be annulled. Second, at least one spouse must have been a resident of Kansas for at least 60 days before filing the Petition. Keep in mind, the spouse living in Kansas does not need to be the spouse filing for divorce.

Service and Response (1–4 Weeks)

Once a Petition is filed with the court, a copy must be served to the other spouse. This service provides notice to the other spouse that the divorce process has begun. Service can be accomplished in several ways, including paying the sheriff department to serve the spouse personally or to send the Petition via certified mail. However, service is obtained, the filing spouse will have to submit proof of service to the court. The non-filing spouse has 20 days to file an answer to dispute any factual allegations made in the Petition. If the non-filing spouse misses this deadline, all factual allegations are considered admitted and agreed upon.

Cooling Down Period and Discovery (At Least 60 Days From Filing)

Absent an emergency or unusual circumstances, the court will not set a hearing for a divorce Petition until at least 60 days after the Petition is filed. This time is known as the “cooling down” period. If counsel does not represent one party, the time is likely to be even longer than 60 days, because a court hearing will be required to finalize the divorce. The court dockets are usually backlogged, and the parties will have to wait for their case to be scheduled. If counsel represents both parties, have worked out a settlement agreement amongst themselves, and submit it to the court for review, a court hearing is not mandatory, and a judge can sign the decree of divorce without hearing live testimony from the parties. How much longer this period is beyond the required 60 days is difficult to predict. This extended period of waiting allows the parties to work out the terms of their divorce with counsel. How this time is mainly spent depends on whether the divorce is contested—the parties disagree as to the facts alleged in the Petition—or uncontested.

In an uncontested divorce, this time is also used to finalize the terms of a settlement agreement and the divorce decree. These terms may include maintenance amounts, a parenting plan, child support amounts, and the division of assets and debts. If the divorce is contested, the first task is determining which facts are disputed. Then, both parties conduct discovery. Discovery may be conducted through interrogatories (written questions answered under oath), requests for production of documents, and depositions (live questioning similar to testifying at trial).

First Court Appearance

The next step is the parties' first court appearance. If the divorce was (and remained) uncontested, the parties likely have reached a full agreement, and if counsel represents both parties, a hearing will likely not be necessary. However, if an attorney does not represent either party, a disposition hearing will be scheduled to finalize the divorce. If there are contested issues, and the divorce is not finalized, a status conference, which is expected to be attended when the divorce petition is first filed, will need to be attended by the parties’ attorneys (or by a party if he or she is unrepresented). At this hearing, the parties will inform the court of the progress they are making towards a settlement. A pretrial conference will also be scheduled at this time. The hope is that the parties will have settled before a pretrial conference is needed.

Pretrial Conference (Varies Greatly, But Likely 2-6 Weeks From First Court Appearance)

At the pretrial conference, the court will meet with the parties and their legal counsel. The court will require each party to disclose the remaining issues that will need to be heard at trial. A pretrial statement is required from both parties, and the court uses it to determine how long a trial will be needed to resolve their pending issues. Between the pretrial conference and the scheduled trial, the parties may continue to attempt to resolve some of the pending issues. If the parties are still unable to resolve all of their disagreements, the case will continue to trial.

Scheduling the pretrial conference may be the longest wait in the entire process. The court docket will determine how quickly a pretrial conference and trial can be scheduled. Large, populous counties will generally have large dockets and more judges to hear cases. It is difficult to predict how long a party will have to wait to find an open time on the docket, even for a specific county.

Trial (Varies, Likely 2-6 Months From First Appearance And 2-5 Days After Pretrial Conference)

Unresolved disputes are decided by trial. A judge, not a jury, conducts divorce proceedings. The judge will hear testimony from the parties, any witnesses, and experts, and will also accept other types of evidence. Using this evidence, the judge will determine disputed facts. He or she will then use the resolved facts, along with proposals by the parties, to create the terms of the divorce. Finally, the judge will issue an order granting the divorce and outlining these terms. At this point, the divorce is final, and the terms of the dissolution order bind the parties. It is possible to appeal the determination of the court if an error of law occurred during the proceedings, but this is rare and will generally result in a retrial rather than an automatic outcome in the other party’s favor.

Divorces take time. These are just the basic elements common to divorce proceedings. Each dissolution is different and will follow its own timeline that may include other hearings and events not discussed here. It is essential to discuss the divorce timeline with competent legal counsel. It is equally important to understand that this timeline is likely to change at various points as the proceeding moves towards trial or agreement. A divorce can be finalized within 60 days or within 2 years. The number one factor in how long your divorce will take is how many issues you and your spouse can work out amicably. The more issues that have to be decided by a judge, the longer your divorce will take.

IS IT BETTER TO FILE FOR DIVORCE BEFORE MY SPOUSE DOES?

Does It Matter Who Files for Divorce First?

As soon as one spouse files a petition in court requesting a decree of divorce, a divorce officially begins. A petition is a short legal document that identifies the parties, establishes the court's jurisdiction, and explains why a divorce is appropriate. The petition’s primary purpose is to give the other spouse notice that a divorce is being sought. When considering divorce, a common question is whether there are any advantages to filing first. Below is an overview of the differences that arise in a divorce based on whether the spouse files for divorce or responds to a petition filed by the other spouse.

Grounds for Divorce

In Kansas, there are three recognized grounds for divorce, as set out in Section 23-2701. First, a divorce may be granted for incompatibility. This is the most common ground for divorce and is considered a no-fault ground because no misconduct needs to be shown. If this is the ground for the divorce, there is no difference in whether the spouse files or responds to the petition. To find incompatibility, the court requires only the testimony of either spouse. There are no defenses against incompatibility, as noted in LaRue v. LaRue. By disputing the allegation of incompatibility in the petition, the responding spouse effectively establishes that the spouses are incompatible and cannot agree.

The other two grounds for divorce differ slightly. These grounds for divorce make specific factual allegations that must be proven by the party that files the petition. The first ground alleges the responding spouse failed to perform a marital duty or obligation. Regarding the second ground, the petition may allege that the spouses are incompatible due to one or both of the spouses’ mental illness or incapacity. If the filing spouse fails to prove the alleged facts or the responding spouse can create sufficient doubt that the facts are actual, then the divorce will not be granted. There is nothing to be gained by filing on one ground over another. Therefore, the filing spouse will usually file on the grounds of incompatibility, because if he or she filed under a different ground, he or she could, in theory, fail to carry the burden of proving the alleged facts.

Differences Based on Filing or Responding

There is little difference in whether you are the spouse who files or the spouse who responds to the filing. An obvious benefit to filing first is determining when the divorce proceedings will start. Once litigation begins, there is generally little control over the proceedings' timeline. The court determines the schedule and sets deadlines for discovery, mediation, and the trial. Thus, while the filing party can determine when proceedings begin, he or she cannot control much else.

If the case goes to trial before the judge, the filing party will have a few advantages. First, the filing spouse’s attorney will be allowed to speak first during opening statements. This means the attorney can set the stage for the entire proceeding in a way that favors the filing spouse’s desired outcome. However, this advantage is diminished because a judge, not a jury, tries divorces.

In addition, the filing spouse will be able to present their evidence first. Evidence in a divorce proceeding is usually obtained during direct examination by calling a witness to the stand, including the spouses. The witness can testify about matters he or she personally knows, and this information can be used to introduce documentary evidence, such as an appraisal of the marital home's value. After the filing spouse’s attorney is done questioning a witness, the responding spouse’s attorney will be allowed to cross-examine the witness. The purpose of cross-examination is to reveal other information the witness did not testify about during direct examination and to poke any holes in the testimony of the witness. This is commonly done by showing any bias the witness may have and introducing any contradictory evidence. For example, if the marital home appraisal entered into evidence on direct was prepared by a friend of the filing spouse, the appraisal may be attacked. The responding spouse may then have an opportunity to introduce a competing appraisal of the marital home, which may show that the house is actually worth substantially more. After the cross-examination is finished, each side will have another opportunity to ask questions.

After the filing spouse has presented all witnesses and evidence, that spouse will rest his or her case. Next, the responding spouse will be allowed to present any additional evidence to the judge. The process is the same as it was for the filing spouse, starting again with direct examination – this time done by the responding spouse’s attorney. Once the responding spouse has completed this process for every witness, that spouse will also rest his or her case. After both parties have presented all their evidence, the case is submitted to the judge for consideration.

Finally, the proceedings end with closing arguments. This is the part where filing first has the most significant impact. The filing spouse’s attorney will begin by making half of his or her closing argument to the judge, reserving some time for a rebuttal. Then the responding spouse’s attorney will make their entire closing argument. After that, the filing spouse can use the time he or she reserved to rebut the closing argument made by the responding spouse’s attorney. Having the last word is a powerful tool for an attorney. However, the power is slightly diminished because the case is tried before a judge rather than a jury.

Whether a party filed first for divorce will not determine how favorable the divorce terms will be. Filing first offers little in the way of controlling the process or gaining a tactical advantage. However, once you decide to get a divorce, contacting an attorney promptly is the smart move. Only after learning the facts of your case can it be determined if filing first poses any advantages.