THE STEPS OF DIVORCE IN KANSAS - "THE BASICS"
The legal issues surrounding family law matters can be quite complex. Because the rules of family law are different depending on where you live, you need to find a local lawyer who is an expert in your region. In the State of Kansas, the divorce process involves the following steps with the guidance of a skilled attorney.
The initial step in getting a divorce in Kansas is to file a Petition for Divorce with the court in the county you or your spouse resides in. This begins the judicial process of divorce as well as the timeline that will ultimately result in the dissolution of the marriage. In Kansas, you do not have to wait any certain amount of time before petitioning the court for a divorce. However, you do need to meet the residency requirement of living in the state of Kansas for no less than 60 days preceding the filing of your Petition for Divorce.
A Petition for Divorce is a lawsuit filed by one spouse suing the other for a divorce. The Petition will contain the name and address of both spouses, a ground for the divorce, a request for the divorce, and orders regarding property and your children if applicable. The Petition is organized in a list of numbered paragraphs, each containing an allegation. Collectively, the allegations come together to describe a set of circumstances entitling the filing party to the court action requested. The Petition is then signed by the attorney hired by the spouse and filed with the court, where it is assigned a case number and a judge. If you have an attorney, filing is completed electronically by submitting a copy of the documents to a court’s website. If the Petition is accepted, the court will issue a summons that orders the non-filing spouse to respond within the required timeframe and appear in court as required.
Filing the Petition is only half the job of initiating the divorce proceedings. The Petition and the summons, as well as any other preliminary filings or orders that may exist, must also be served on the non-filing spouse to give him or her notice of the proceedings. Kansas law recognizes a number of ways to complete service of process on a non-filing spouse. Most commonly, the filing will be personally served on the spouse. The filing can also be left at the residence or place of employment for the individual. Finally, service can be achieved by certified mail so long as a return receipt is produced.
Upon filing for divorce, there is a 60 day mandatory waiting period in the State of Kansas. Parties cannot be divorced before the waiting period has expired. Because of the waiting period, temporary orders become necessary to protect parties before the divorce is finalized and permanent orders are entered. After filing a Petition for Divorce with the court, the filing spouse may need some immediate judicial action while the divorce process is pending. The temporary judicial action may come in the form of Temporary Orders issued by a judge. These orders include requiring temporary child support or spousal support payments, setting up temporary custody arrangements for children, or even prohibiting the non-filing spouse from coming within a certain distance of the filing spouse. By their nature, these orders are time sensitive and can be requested immediately.
The court requires that your Petition for Divorce be on file for at least two months to exchange information, attempt settlement, or to give the parties time to reconcile. During the waiting period, if you and your spouse come to agreements on your property division, support, and a parenting plan, you can submit your settlement agreement to the court. Upon submitting your settlement agreement to the court, the Judge will review your proposed agreement alongside a proposed Decree of Divorce and if approved, you can be divorced on the 61st day. In practice, most divorces take longer to reach agreements on all issues. If there are contested issues involved in the case, it is up to you and your spouse for how long it will take. If an agreement cannot be reached, whether through counsel or through mediation, then the court will set the case for a pretrial and eventually a trial. The judge tries to give the parties time to continue to work together to reach agreements before they will hear the case at trial.
When looking at settlement or trial, you need to consider how Kansas law treats property in a divorce. Property acquired during the marriage is considered marital property and must be divided as part of the divorce action. This might include the marital home, vehicles, and retirement accounts. When it comes to property, spouses are the experts, making this a prime area for agreement and settlement. If you have a trial, the court will hear all relevant arguments regarding the disposition of property, but at the end of the day, the judge alone will make the decision regarding which spouse receives certain property. This motivates most couples to work out agreements that each are happy with, rather than risking the judge issuing a decision that may not serve either party’s interests.
In Kansas, marital assets must be divided in a way that is fair, just, and equitable. When the court is considering the division of your property, the judge will consider ten main things. The judge will consider the age of the parties, the length of the marriage, if the property is considered marital or non-marital, the present and future earning capacities of each spouse, the time source and manner by which the property in question was acquired, family ties to the property, spousal support that is awarded to the parties, any squandering of assets that has taken place, the tax consequences, and any other relevant factors. In most cases, an equitable division is typically a 50/50 division of all property that accrued during the marriage. However, this does vary from case to case and an equal division might not be appropriate for some parties.
When looking at a settlement agreement or trial, spousal support and child support are additional factors to consider with a divorce. Spousal support may be referred to as maintenance or alimony. The purpose of spousal support is for a spouse to maintain their marital lifestyle temporarily and rehabilitate that spouse into society. Although spousal support is not appropriate in every situation, parties that have been married for a long period of time may be ordered spousal support in their case. This is especially true when one spouse has decided not to work and instead raised children. In this case, the court does not want to punish the spouse who was a homemaker, so support will likely be awarded. Awarding spousal support often allows a spouse to progress towards financial stability after the divorce. It can also help that spouse attend school or training that will aid in re-entering the workforce.
Child support is quite different from spousal support. Child support will almost always be ordered when there are minor children in a case. Kansas has a formulaic method of calculating a presumed child support amount, adopted to make support obligations more consistent and less controversial. This formula uses the income of the parents, the custody arrangement, and other factors to arrive at a presumed amount. Using the Kansas child support guidelines, the amount of child support is easy to calculate and predict for settlement and/or trial.
Child custody is the final facet of a divorce proceeding and is usually the most difficult to reach an agreement. Each parent will likely have strong preferences regarding the custody and parenting plan of their children. Even in joint residency arrangements, dividing holidays, summers, and weekends can prove difficult and emotionally charged. As a final barrier against an agreement, certain custody schedules can directly impact the amount of child support a parent owes or receives. These factors come together to make child custody and the parenting plan a contested portion of most divorce negotiations.
If the parties cannot come to an agreement, the contested issues will be addressed and determined at trial. Unlike the trials you may see on television, divorce trials in Kansas are different in that they do not involve a jury. The judge assigned to the case will hear argument and evidence and then make a ruling on the division of assets, support, or the parenting plan. The ruling will be binding on each spouse. Trials can be scary, so having an attorney that has extensive trial experience will help ease your mind.
Legal disputes between family members can be extremely difficult and confusing. Understanding the details of the legal process is important in making an informed decision for yourself and your family. Many decisions are made throughout the course of a family law case, such as whether to settle or take the case to trial. Having a skilled family law attorney will make those decisions easier for you. At the end of the day, my goal is to get you the best possible outcome in your case.