- Divorce/Custody/Child Support/Paternity
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It Is possible to obtain an Emergency Divorce. There are several requirements for an Emergency Divorce. First of all, both parties to the divorce generally have to agree on every issue so that the divorce is not a contested divorce. Secondly, both parties have to agree that there will be an Emergency Divorce. Finally, one party has to obtain a letter from their family physician or a mental health professional stating that that party is under stress to the extent that it would be best for the divorce to be expedited. Kansas law requires that there shall be a 60-day waiting period, which runs from the date of the filing of the Petition. That waiting period may be waived or eliminated if an Emergency Divorce is done.
Serving the Papers on Your Spouse
After the Petition is filed, the Petition and other papers will be assigned to either a deputy sheriff or a civil process server to be served on your spouse. Service of the papers may be accomplished as quickly as within a couple of days or it may take several weeks. The attorney is not notified of the fact that the spouse has been served until approximately a week after service is obtained. Therefore, you may know the spouse is served before the attorney does. On occasion, it is possible that the deputy sheriff or the civil process server may have difficulty in serving your spouse and may be unable to do so. In such situations, it may be necessary to hire a special process server to serve your spouse with the papers.
Child support in the state of Kansas is determined by using the Child Support Guidelines. Use of the Guidelines involves a formula and a grid. The primary factors to be considered in determining child support are:
- The gross income of the parties
- The number of children and the ages of the children
- The cost of any work-related daycare
- The cost of any health and dental insurance incurred by either party
- Which party receives the income tax exemption for the children for income tax purposes
- Whether or not either party has other children either living with them or for which they are paying child support.
Payment of Child Support
All child support is required by state law to be paid through the Kansas Payment Center. Therefore, you should never accept nor should you pay child support directly to the other spouse. The Kansas Payment Center will promptly forward child support to the custodial parent. Should the custodial parent ever change his or her address, they should notify the Kansas Payment Center of their new address immediately. Should you be required to pay child support, we will provide you with information about how to pay the Kansas Payment Center to make your first payment.
Modification of Child Support
Child support may always be modified in that it may always be increased or decreased. If the financial circumstances of the parties change, then the child support may be modified. For example, if the spouse who must pay child support has a substantial increase or decrease in their income, then the child support may be modified appropriately. Additionally, as the children grow older, the guidelines call for an increase in child support. It is a good idea to have child support reviewed every two or three years to make sure the Child Support Order is in line with the Child Support Guidelines.
Maintenance may be applicable in some divorce cases. Generally, alimony or maintenance is not awarded in marriages where the parties have not been married for at least five years. If the parties have been married for five years, then maintenance may be awarded if there is a substantial difference in the gross incomes of the parties. If there is a substantial difference in the gross income of the parties, then the amount of maintenance is generally the difference of the incomes of the parties multiplied by 20%. For example, if the husband makes $2,000 per month gross Income and the wife makes $1,000 per month gross income, the difference of the incomes of the parties is $1,000. $1,000 times 20% equals $200 per month, which is what the maintenance would be in this situation. Maintenance generally will run or last for 1/3 of the length of the marriage. For example, if the parties had been married nine years, then the maintenance will generally last for a period of three years.
Kansas does have joint custody. Joint custody does not mean that the child will live six months with one parent and six months with the other parent. That is what is called split custody. Joint custody simply means that when it comes to important decisions regarding children, those decisions should be made jointly. For example, decisions regarding healthcare, religious training and education should he made jointly by both parents, with both parents having input on such decisions. Kansas requires that joint custody be ordered in every divorce case unless the court finds for good cause shown there should not be joint custody. It is only in rare cases that a trial judge in a divorce case will not order that joint custody be awarded. Although both parents are generally ordered joint custody of children, one parent must be designated as the residential custodian of the children. This parent will have actual physical custody of the children. The divorce decree will state that both parties have joint custody but one parent will be designated in the divorce decree as the residential parent.
What used to be visitation is now referred to as parenting time. If the parties are on friendly terms, the divorce decree will often state that the parenting time will simply be reasonable. This allows both parties to work out the parenting time within their own schedules and on their own terms. It Is a more flexible arrangement which may be easily modified by the parties by agreement. In the event that both parties to a divorce cannot agree on parenting time, the trial court will generally order specific parenting time. This means that the parenting times are specifically set and must be adhered to by both parties. Generally, specific parenting time allows for parenting time by the non-custodial parent every other weekend from 6 p.m. on Friday evening to 3 p.m. on Sunday evening, plus alternating holidays and birthdays. The courts generally prefer that the parties alternate on lesser holidays such as Memorial Day and Labor Day with one parent having parenting time the entire weekend. On major holidays such as Thanksgiving and Christmas, courts prefer that the parties divide those holidays so that each parent has some time with the children on those holidays.
Income Tax Return
On matters regarding tax aspects of the divorce, you should consult your tax consultant or preparer. However, if you become divorced during the calendar year, you cannot file a joint income tax return for that year.
Time Frame for the Divorce
In the event that the divorce is uncontested, the divorce will generally be finalized anywhere from 61 to 80 days from the date the Petition is filed. Although there is a 60-day time waiting period, that does not mean the divorce will occur on the 60th day. The scheduling for the divorce will depend upon the schedule of the client, schedule of the lawyer and the schedule of the judge. In the event that the divorce is contested, this generally means that it will take longer to get the divorce granted. An uncontested divorce is a divorce where both parties agree upon all the issues of the case and there Is no need for a trial. Conversely, a contested divorce is a case where the parties cannot agree on the issues and it is necessary for a trial to occur so that the judge may resolve the issues that the parties cannot agree upon. If the case is contested, a trial will generally be scheduled sometimes three or four months from the date of the filing of the Petition. The judge sets the trial date. You will be notified in writing of the trial date substantially prior to the date of the trial.
The attorney fee in all divorce cases is set pursuant to a written contract that will be signed by both the client and the lawyer. Should you have any questions about the attorney fee, please refer to the attorney for the written contract and if you have any questions, please feel free to call in regard to any questions. Generally, the attorney fees must be paid in full prior to the time the divorce is finalized.
After the Filing of the Petition
After the Petition is filed, three things may occur. First, the other party may obtain an attorney. If the other party obtains an attorney, you will be called and notified of that. An appointment will then be scheduled for you to come in so that the issues of the divorce can be discussed. A position on each issue in the divorce will be outlined and a settlement letter proposing a settlement will be mailed to the other lawyer. Negotiation process will begin to determine if the case can be settled without a trial. The second possibility is that the other party, after the filing, may come into the attorney’s office and attempt to negotiate a settlement without an attorney. If that occurs, you will be notified that the other party has contacted the attorney. Settlement negotiations will then begin to see if the case can be settled without a trial. The third possibility is that the other party will not do anything. If the other party does not contact an attorney or attempt to negotiate for himself or herself, then the case will be in default. That means that after the 60-day time period has run, you will be eligible to go to court anytime and do the divorce without the other party being present or even being notified of the hearing.
Dating During the Divorce
Once a divorce has been filed, it is permissible for either party to date socially. As a divorce case, if contested, may take three or four months or even longer, it is permissible to go ahead and date. It is not permissible, however, to have a date spend the night in the house if children are present in the home. This is not a good practice and may become an issue in court if custody is contested.
Should it be necessary for there to be a trial in which the judge resolves issues that cannot be resolved by the parties, then you do have the right to appeal. An appeal must be filed within 30 days from the date the Divorce Decree is filed. If an appeal is not filed within 30 days, then it is forever barred. An appeal is not included in the attorney fee schedule set out in the written contract between the attorney and the client. Should an appeal be necessary, a new contract will be done between the parties regarding the fee.
Changing the Divorce Decree
Certain filings in a divorce may always be changed or modified. Certain things may never be changed once the Divorce Decree Is filed. Generally issues involving child support, parenting time and custody may always be modified or changed. Issues involving property and debts generally may never be changed once the Divorce Decree is filed.
It is important that you understand that a Divorce Decree in which certain orders are made regarding debts cannot change a contract between a client and a creditor. The Court may assign certain debts to each party. However, if a debt is assigned to a party to a divorce and that debt is not paid by that party, then the creditor can sometimes attempt to collect the debt from the other party. For example, the husband may be required or ordered by the Court to pay a debt such as a medical bill. If the husband fails to pay the medical bill, the creditor may come after the wife to collect the debt, despite the fact the judge ordered the husband to pay the debt. In such an event, the wife may then cause Contempt of Court charges to be filed against the husband for failure to pay the debt as ordered by the judge. However, in some cases, a party may file bankruptcy or leave the jurisdiction or become unemployed. In that situation, if a debt is not paid, the creditor will often attempt to collect the debt from the other party even though that party was not ordered to pay the debt.
Grounds for Divorce
In the State of Kansas, there are essentially only two grounds for divorce: incompatibility and extended mental illness. Many years ago, there were a number of different grounds for divorce such as abandonment, mental cruelty, adultery and many others. Those grounds for divorce were all eliminated by the legislature many years ago. Accordingly, the Petition in a divorce case will almost always state that the grounds for divorce are incompatibility.
Incompatibility simply means that two married people can no longer live together in harmony in a marriage. In Kansas, it is almost impossible for one party to stop the other party from obtaining a divorce. If a married person in Kansas decides to get a divorce and wishes to pursue the divorce on the basis of incompatibility, then the other party essentially has no way of preventing the divorce.
Qualified Medical Support Orders
It is possible for you to obtain a court order requiring your spouse to have health insurance in relation to the children. This will force the employer to cover the children immediately whether or not an opening for such coverage currently exists. If you have a Qualified Medical Support Order, your spouse, under any situation, cannot cancel the health insurance for your children. There is an additional cost to obtain a Qualified Medical Support Order and it is not always necessary. However, you should consider this issue and if you desire a Qualified Medical Support Order, please advise prior to the time we finalize your divorce.
Moving From Jurisdiction
After the divorce, you may move out of the state of Kansas. You are free to move wherever you wish to reside. If you do move from Wyandotte County, you are required to send to your ex-spouse a certified letter giving your ex-spouse at least 30 days' notice of the fact that you are moving from the jurisdiction. You also have to include your address or location where you will be moving. If you fail to do this, the judge can, and often will, change the custody to give custody to your ex-spouse.
It is possible that you may reconcile your problems and then wish for the divorce to be dismissed. Please feel free to call me if that, in fact, happens. Further, we have the names and phone numbers of several of the best marriage counselors in the Kansas City area. Should you wish to engage in counseling, please advise and I will be happy to assist you in obtaining counseling. In the event that you do reconcile, however, please advise us immediately.
In conclusion, this information is designed to provide you with information necessary for you during the processing of your divorce. Divorce can be a difficult experience and it is important that you be as well informed as possible. Should you have any questions about any of the information contained in this information sheet or should you have any other questions, please feel free to contact me to have your questions answered.
Mr. Dehon's fees are very reasonable.