SHORT FACTS YOU NEED TO KNOW
ABOUT A KANSAS DIVORCE
by LOUIS S. WEXLER, P.A.
Dear Client:
INITIAL INTERVIEW
The initial interview in a divorce proceeding is probably the most important factor in handling the case. Sometimes I might ask certain questions that you might believe are very personal, but try to understand that I need as much information as possible in order to represent you to the best of my ability. The initial interview usually takes about one hour to conduct. I will outline to you the procedures in the State of Kansas and our rights under the Divorce Laws of Kansas and try to analyze the marital problems you might be having at the present times.
I WANT TO EMPHASIZE THAT AT NO TIME WILL I MAKE THE FINAL DECISION WHETHER TO FILE OR NOT. I am not out to destroy your marriage, but to help you.
DIVORCE PROCEDURES
Divorce Laws in the State of Kansas require that a person be a resident of the State of Kansas at least sixty (60) days prior to filing. The grounds for divorce may be any of the following:
- Incompatibility
- Failure to perform a material marital duty
- Incompatibility by reason of mental illness
Naturally, as can be seen, there may be more than one ground that may be applicable.
Immediately upon filing of the Petition for Divorce, an Ex Parte or Temporary Order may be obtained from the Court, awarding temporary support, temporary possession of the residence, temporary custody of the minor children, and temporary restraining orders.
There is a sixty (60) day minimum waiting period before the final divorce hearing. The purpose for this hearing is to make possible reconciliation attempts, if possible, or to make property settlements out of Court, if at all possible. It is not necessary to have the divorce heard immediately upon the expiration of the sixty days, however.
CONTESTED MATTERS
If an immediate settlement cannot be made of the issues involved, then the divorce must be naturally considered to be contested and protracted proceedings must take place before the issues can be resolved to determine such issues as custody of the minor children, child support, maintenance, division of property, etc. I will keep you posted as to all settlement offers and will do my very best to reach a solution short of the Courtroom.
YOUR DEMEANOR DURING THE DIVORCE PROCEEDINGS
I expect you to remain peaceful and calm during the proceedings. I know it is very difficult to do this, especially when there are many side issues that may be involved. I do not expect any violation of any restraining order and I expect all temporary orders to be complied with. Visitation with the minor children without difficulty. Care should be observed not to discuss the divorce with the children or make untoward remarks in their presence.
During the divorce, and especially if the matter has any chance of being contested, the question arises if you should go out with members of the opposite sex. My opinion is that you should approach any such relationships with caution. I feel it is all right to go out publicly, but do not become the talk of the town. By all means, please do not run to your estranged spouse and tell him or her about such relationships. KEEP YOUR MOUTH SHUT ABOUT EVERYTHING, including past, present, and possible future relationships.
LIVING EXPENSES DURING DIVORCE
The amount of support and your earnings during the pendency of the divorce proceedings may not be enough to pay all the expenses that you have. First, make sure that you have enough to survive on. By this, I mean pay your necessities such as food and lodging first. You may experience a financial crunch at first, but at least during the pendency of the divorce, you are going to have to make do with what you can. Call all of your creditors that you might have a problem with. Explain to them that you are going through a divorce proceeding and that you may not be able to pay all on your account. By all means, tell them that you will not be responsible for any obligations that will be incurred by your spouse on that account and I suggest that you put this in writing to your creditor. Finally, keep close track of your bills and expenses during the pendency of the divorce proceedings. This will let both you and I know how much money it will take to allow you to survive and will be helpful in determining a reasonable amount of support to ask for from your spouse.
MAINTENANCE AND DIVISION OF PROPERTY
Kansas Courts have considered the following items in determining the amount of maintenance to be awarded and in determining the division of property in a divorce action:
- The respective ages of the parties.
- The duration of the marriage
- What money or property each party brought into the marriage.
- The physical and mental health of the parties.
- The relative training, ability and education of the parties.
- The present and future needs of the parties.
- The property acquired during the marriage and a realistic value for the same, including how the property was acquired.
- The social position and standard of living of each.
K.S.A. 23-201 is called the “Married Person’s Act”. It states that any property that any of the parties may own prior to the marriage or accumulated by that person by way of inheritance or by gift shall remain as that person’s sole and separate property. This has been traditionally called “Non-Marital Property”. However, the Act does state that all property becomes marital property at the time of the commencement of divorce proceedings. As a practical matter, however, it has been my experience that the Courts usually will assign all property that either party had prior to the marriage, plus gifts and inheritances to that party, with the exception of the appreciation of that asset during the marriage. The tendency of the Courts is to divide all marital property of the property equally.
As far as retirement plans, 401K plans, IRA plans, pension plans, and the like, the Courts will establish what the present value of the marital share of these plans are. It may be necessary to divide these plans to equalize each parties’ interest. This is called a Qualified Domestic Relations Order (QDRO). As far as real estate is concerned, it is usually necessary to establish what the equity is in the property and subtract what the usual sales expenses are. The household goods are valued basically at “Garage Sale” values. Purchase prices and replacement costs are not considered. The Courts ordinarily do not have the time and will not sit there and divide up your household goods for you. It is therefore a good idea to make a list as soon as possible of all of your household goods and establish what the present value is and sit down with your spouse and try to divide up these items. Otherwise, the Court will probably allow each of you to alternately make your choices.
CHILD SUPPORT
The figure that the Courts award for child support are not imaginary. The Courts throughout the country use child support guidelines to determine the amount of child support. The concept of Child Support is based upon the principle that both parties mutually have a duty to pay child support. The gross incomes of both parties is used to calculate the child support obligation. Day care expense and Hospitalization Insurance are also used to establish the child support obligation. There are other considerations that the Courts have been using, such as child day care expense, insurance, income tax deduction, and long distance visitation, and financial circumstances. The Court may also take into consideration unusual need that the children might have, such as health needs. Usually, Child Support will extend to June 30th of the years each child reaches the age of 18. There are instances where the child has been held back in school at the mutual decision of the parents and then it would extend to age 19. Unless, the parties agree, the costs of a college education are not ordered by the Court.
CUSTODY
The Courts of the State of Kansas have generally adopted Joint Custody of children. This does not mean shared custody. It does mean that both parents should have an equal input into raising the children and liberal rights of visitation. Shared Custody is an arrangement where both parties usually spend an equal amount of time with the children. If there is come compelling reason that may be detrimental to the welfare of the children, the Court may order Sole Custody to one party. In most cases, child visitation consists of alternating the weekends, some visitation during the week, alternating birthdays and alternating the major holidays.
SPOUSAL MAINTENANCE (ALIMONY)
Spousal Maintenance in Kansas has been referred to as future support. Factors that the Court looks at are the length of the marriage, one party’s need and the other party’s ability to pay, the difference of the incomes of the parties, the property division of the parties and whether the requesting spouse received income producing property. Spousal Maintenance can run for 120 months in Kansas and can be renewed by motion at that time. Usually, however, you can gauge the length of maintenance by dividing the first 5 years by 2.5 and the remainder
TELEPHONE CALLS
I am fully aware of your need to have contact with me by telephone. Talking with me during the day is sornetimes impossible with Court hearings and meeting appointments. When you are in the office with me, I am sure that you do not appreciate my interrupting our conversation by taking a telephone call. Such interruption often results in forgetting a question we wanted or needed to ask. I DO CHARGE FOR TELEPHONE CALLS.
Kindest regards,
Louis S. Wexler
