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Divorce and Marriage Dissolution in Kansas
In Kansas, in order to begin a case for divorce, one of the parties must have been an actual resident of Kansas for at least sixty (60) days immediately preceding the date the Petition for Divorce was filed K.S.A. § 60-1601(a).
A Petition for Divorce may be filed in the county in which the petitioner is an actual resident, the county in which the respondent is an actual resident, the county in which the respondent can be served with process; or, if the petitioner is a resident of or stationed at a U.S. military post, the action may be filed in any county adjacent to the post or reservation K.S.A. § 60-607.
A Court must grant a divorce where it finds that the parties are incompatible, that one party has failed to perform a material marital duty or obligation, or the parties are incompatible by reason of mental incapacity K.S.A. § 60-1601(a).
The primary issues to be resolved in an action for divorce are (1) child custody and parenting time (visitation), (2) child support, (3) spousal support, and (4) division of property.
Child Custody and Parenting Time
Child custody includes both legal custody and residential custody. Legal custody is decision-making authority over issues such as the religion, education, and health of a child. There are two types of legal custody—joint legal custody and sole legal custody.
Joint legal custody is the preferred legal custodial arrangement and provides that both parents share equal decision-making authority. Sole legal custody vests in one parent complete decision-making authority and is awarded only when the Court finds that it is in the child’s best interests that one parent, and not both, should be responsible for making decisions regarding the child.
Residential custody is the living arrangements of the child, including the parent with whom the child will reside and the parenting time the child will have with each parent. The Court is not required to designate that either parent be designated as the “primary residential custodian.”
The focus of the Court in making a residential custody determination is the appropriate schedule of parenting time with each parent rather than on “residency,” and that the schedule of parenting time be flexible to accommodate the needs of the family and the child.
The Court will make an equitable division of all assets and debts of the parties. Once an action for divorce is filed, all property owned by the parties becomes part of the marital estate, even property owned by both parties prior to the marriage and property acquired through inheritance or family gift.
In making an “equitable” division of property, the Court does not necessarily have to make an “equal” division. Thus, in dividing the marital property, the Court can consider factors such as pre-marital property, inheritances, and gifts.
Kansas Child Support
Child support in Kansas is typically awarded pursuant to the Kansas Child Support Guidelines. Child support awards are based on “income sharing,” which means that the award combines the gross incomes of both parents to determine a hypothetical income base upon which the child support amount will be determined.
Then each parent’s individual gross income will be divided by the combined gross income figure to arrive at a percentage of the total child support obligation that parent must contribute for support of the child. It is important to note that this is the base child support amount and adjustments may be made to either parent’s base child support obligation for expenses such as health insurance premiums and daycare.
Further, the child support obligation may be adjusted to account for long-distance parenting time (appropriate when substantial costs must be incurred by a parent in order to accomplish parenting time), and parenting time (appropriate when the non-custodial parent spends a substantial amount of time with the child).
Finally, an award for child support may be modified upon a showing that there has been a material change in circumstances such that a parent’s obligation would be increased or reduced by at least 10%.
The purpose of maintenance is to make up for economic imbalances between the parties such as earning power and standard of living. The Court has wide discretion in determining whether or not maintenance should be awarded. Maintenance is not an absolute right, and the primary consideration in making such award is the need of one spouse to receive maintenance and the other spouse’s ability to pay.
With respect to the amount of a maintenance award, many counties in Kansas have developed guidelines to be used in the determination of a maintenance award. These guidelines are useful in determining the methods used by that county in calculating maintenance, but these guidelines are not binding on the Court.
The Johnson County Family Law Guidelines, for example, provide that monthly maintenance is calculated as 25% of the first $300,000 difference in the parties’ earnings (or imputed earning capacity), plus 15% of the excess difference in incomes (when there is more than a $300,000 difference in incomes); and, furthermore, the Guidelines provide that maintenance is payable for a time equal to one-third of the length of the marriage.
Finalizing Divorce in Kansas
A Decree of Divorce may be entered sixty (60) days after the Petition for Divorce was filed. During this time, parties typically begin trying to reach a settlement (agreement) regarding custody and parenting time, property division, and spousal support and determining which issues they are unable to reach agreement on.
Issues that remain disputed will be determined by the Court at a trial. Any settlement reached as well as final orders issued at trial regarding disputed issues will be incorporated into the final decree of divorce.
Each divorce case is different and the resolution of any case depends on the unique factors of the case. Please contact Cordell & Cordell regarding specific questions.