Understanding the divorce process in kansas

Here are some of the common issues pertinent to divorce cases in Kansas. This information does not translate to other states and may not always be appropriate as each legal case is different.

JURISDICTION: In order to file for and be granted a divorce in Kansas, a person should be a resident of Kansas for 60 days.

Jurisdiction over the other person may be obtained in two ways: 1) serving them legal process within Kansas or 2) securing their voluntary consent to jurisdiction within Kansas. If you do not know where your spouse is, the notice may be posted in a public newspaper. Divorce can be granted in the county where either one of the parties lives.

THE PETITION: Divorce begins when one member of the party files a petition. This petition must have certain statutory language and include information about any children that resulted from the marriage. It will have to be “verified” by the client, which means that it must be signed before a notary public. Other law petitions within Kansas may include a petition for separate maintenance, also known as legal separation, and a petition to establish paternity.

FAULT: Fault does not need to be proved in order to obtain a divorce in Kansas. It is only necessary to show that the parties are no longer compatible. Any fault that caused the dissolution of the marriage is not relevant unless it impacts finances.

TEMPORARY ORDERS: After a petition has been filed, a petitioner may be granted an “ex parte” order from a district court judge, meaning a judge will only hear that party's side. It may also grant residential custody of the children and order the other to pay child support, and restrain the parties from disposing assets or coming near the other while the case is pending. The respondent may request modification of the orders at a hearing.

SERVICE OF PROCESS: A person must be served with copies of the petition in order for the divorce to proceed.

They will be given a certain time period to respond. Usually, a country sheriff or an authorized process server serves them. One party cannot serve the other. The respondent can consent to the jurisdiction of the court and waive the service of process. In this case, the respondent signs a form that is then filed with the court and the orders take effect.

WAITING PERIOD: There is a 60-day “cooling off” period after the filling. There are emergency divorces, but a final decree of divorce cannot be released until the 60 days have passed.

DISCOVERY: During the cool down, parties will go through “discovery” which is a process where the two parties discuss the issues involved in the divorce. They may ask each other written questions, request documents, and take depositions. Some cases require more work, including depositions, appraisals of property and money, and the subpoena of records. Both sides are required to provide any information.

PROPERTY DIVISION: All property that is acquired during a marriage is considered to be mutual property and can be divided during the divorce. Anything that was owned before the marriage or obtained as an inheritance will be set aside and not divided during the divorce, however appreciation may be divided. Debts are treated the same way, in that debt incurred prior to marriage will belong to whoever incurred them and debt incurred during marriage will be divided. The fact that one person earned a majority of the debt or the assets does not necessarily affect division.

PROPERTY SETTLEMENTS AND AGREEMENTS: If the parties are able to agree on how their issues should be resolved, they can enter into a separation and property settlement agreement. This document assures that both parties understand all of the issues. It has to be signed and taken before the court after the 60 days following the filing of the petition has expired. If everything seems fair and equitable, it will be approved and incorporated into the terms of the divorce.

DECREE OF DIVORCE: The decree of divorce is the document that officially dissolves the marriage. It will contain the orders concerning property division, maintenance, child custody and support, visitation, and other issues involved in the divorce. Once the decree is filed through the clerk of the court, it is final, but the court keeps the jurisdiction over issues related to childcare.

MAINTENANCE: Spousal support or alimony is known as “maintenance” in Kansas divorce cases. In order to determine this, the court will look at the marriage length, needs of the party, earning capacities of both, and other considerations. Fault will not be used. There are some guidelines that take into consideration the differences between the gross incomes of both parties and the length of the marriage.

CHILD CUSTODY: The best interests of the children are what concern the court. “Joint legal custody” is the best option when both parents are fit and proper to care for the children. Joint custody means that both of the parents have equal responsibilities and equal rights to the child in terms of medical, education, and religious training.

However, it does not mean that the children will spend equal time with each parent. One party will be the “primary residential custodian” and will live with the children most of the time. “Split custody” is when the children do live with each party equally. This is not common because of stability with schooling. “Sole custody” is when one parent has control over the childcare and decisions for the children. The other parent could still have a relationship with the children and be an active parent. That parent will still likely have to pay child support.

CHILD SUPPORT: Child support is determined by a specific formula. The court will look at the gross income of each parent, the age of the children, daycare costs, health insurance costs, and other factors. However, it can be raised or lowered in cases of difference of incomes or when the child reaches a certain age.

PARENTING TIME: Parenting time or “visitation” is any time spent with the children. Typically in joint legal custody, the parenting time will be every other weekend from Friday to Sunday, one evening per week, and every other major holiday (depending on religion). Summertime could mean that there is a difference depending on vacations. The age of the child, any special needs, and distance is also a consideration. Again, the best interests of the child are what is important.

MEDIATION AND MARRIAGE COUNSELING: A Kansas divorce court may order the parties to participate in mediation or marriage counseling to discuss their differences in order to try and resolve their issues as amicably as possible.

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