Divorce
If you are headed to a divorce, you may be curious as to what exactly a divorce means, and what the process is for a Kansas divorce. At Jeffers Law Office, Mark desires for his clients to be informed and to understand the law and procedure involved in their case. Here are some basic facts regarding divorce in Kansas. For more information or to set up an appointment, contact his office.
WHAT IS A DIVORCE?
Divorce is the legal process by which a couple can dissolve their marriage. The complexity of a divorce depends on many factors, such as whether the couple has substantial assets or debts or if there are children involved. A divorce process often involves separating property and debts, establishing child and spousal support, making parenting arrangements and restoring a maiden name.
Kansas is a “no-fault” divorce state, which means that it is not necessary to prove that one party was at fault for the breakdown of the marriage.
In practical terms, this means:
Evidence of misconduct (such as adultery) is usually not relevant.
Evidence of misconduct can be admitted to show that it caused assets to be depleted.
Divorce is proven when one of the grounds for marriage is shown, including incompatibility, failure to perform a material duty or obligation, or incompatibility by reason of mental illness or mental incapacity.
Either person can file a petition for a divorce, in the county where at least one spouse lives. If the couple can reach an agreement about the terms of the divorce, a judge will issue a divorce decree after a minimum of 60 days from the time that the case was filed. If the couple cannot reach an agreement, a trial may be necessary to determine issues such as division of property, child custody and support and alimony. The time it takes to go to trial depends on the court’s schedule.
HOW LONG DOES A DIVORCE TAKE?
In Kansas, there is a mandatory 60 day waiting period between when the divorce is first filed and when it can be finalized. The divorce is considered final when a judge signs the Decree of Divorce and it has been filed with the Clerk of the District Court. If the parties are able to reach agreement on all issues, the divorce may be finalized once (1) the 60 day waiting period has expired and (2) they can present the agreement to the court for approval. If they are not able to reach agreement within the 60 days, the divorce will not be granted until they have reached an agreement or the parties have gone through a trial.
WHAT IS THE DIFFERENCE BETWEEN A LEGAL SEPARATION AND A DIVORCE?
A legal separation is a way for a couple to live separately without dissolving the marriage. The parties are still legally married under a legal separation, and cannot remarry. Under Kansas law, this is known as a “separate maintenance” action. In contrast, a divorce dissolves or terminates a marriage and the parties are free to remarry once it is final. The grounds for a separation are the same as a divorce. All issues related to a separation, including child custody and support, alimony and property division, are handled in the same way as in a divorce.
WHAT IS AN UNCONTESTED DIVORCE?
An uncontested divorce is when the parties agree on all relevant issues. This may include division of property and debts, spousal support, child support, and parenting arrangements. Once the 60-day waiting period is over, the parties must present the final agreement to the court for approval in order to obtain a divorce decree. Uncontested divorces typically save both parties time, money and stress by avoiding a prolonged litigation process and the uncertainty of a trial. An uncontested divorce may also occur when the party who did not file the divorce petition (the responding party) fails to respond. In that situation, the party who started the case can obtain an order of default and complete the divorce without the other party.
WHAT AM I ENTITLED TO IN A DIVORCE?
The division of assets and debts in a divorce is to be done in a fair and equitable manner. To accomplish this, a judge has almost unlimited authority to decide how to divide assets and debts if the parties cannot reach an agreement. Assets and liabilities are classified as either marital or nonmarital, with only marital assets subject to division. Examples of nonmarital assets include property acquired before or after the marriage or obtained through inheritance or gift. The court may consider the nonmarital property in property divisions to ensure that there is a fair result. The court may also award spousal support, restore a maiden name, and continue restraining orders. If there are minor children, the court will also determine appropriate child support, custody and parenting arrangements.
WHAT IS A RESTRAINING ORDER?
Restraining orders are civil orders that prohibit certain actions, such as following or being in the same place as a specific person or people or selling a piece of property. They are typically used in relationships involving domestic violence, but can also be used to protect legal rights during a divorce proceeding. Restraining orders can be used to prevent the parties from disposing of assets, changing insurance policies, or moving children out of the area while the divorce is pending. Protection From Abuse (“PFA”), Protection From Stalking (“PFS”) orders, and anti-harassment orders are forms of restraining orders that can be obtained outside of a divorce proceeding when there has been violence or threats of violence between people.
HOW CAN I CHANGE MY NAME?
After the breakdown of a marriage, a person who has changed his or her name may want to return to the name that he or she had before the marriage ( often called a maiden name). Because many assets may be held in the marital name, it is often preferable to connect the request for a name change to the divorce. It can be requested in the Petition or Answer to the Petition for Divorce and should be included in the Decree of Divorce.
HOW CAN I ESTABLISH PATERNITY?
If you have a child with a person outside of marriage, you may need to institute a paternity action to legally establish the identity of the child’s biological father. You may be able to get help with this process through the state, or you can file your own action with the court. In most cases, a DNA test can help to establish paternity. If both parents have signed an acknowledgment of paternity, then a DNA test may not be necessary. A parentage action may still be useful to set up a parenting plan and order of child support.