Whether you wish to initiate a law suit, or defend one, my firm can represent your family’s needs in a variety of legal areas, in many jurisdictions in Kansas. The following is an overview of some of my practice areas. This overview is current through January 2010, and is intended to provide both clients and those seeking information about legal services with some general knowledge of the law in Kansas. Of course, no generalities can substitute for the advice of counsel familiar with the context of your case. Please call or email me to schedule a consultation to discuss the specifics of your case. Remember, no one can guarantee your privacy on the World Wide Web, and thus I recommend that you send no sensitive information via email.
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Child Custody and Parenting Time Issues
Protection from Abuse (“PFA”) and Protection from Stalking (“PFS”)
Child in Need of Care (“CINC”)
Probate and Estate Planning
Other Family Law Issues
Divorce is the legal process by which a married couple becomes two single people. Kansas is a “no fault” divorce state, which means that neither party must prove to a court why he or she is entitled to a divorce. The most common ground alleged for divorce is the parties’ incompatibility.
Procedurally, a party usually initiates a divorce by filing a Petition for Divorce in the county in which he or she lives. The initiating party is called the Petitioner. After that first day of filing, our Legislature has imposed a 60-day waiting period, or “cooling off” time, and a judge generally will not grant final orders of divorce before the end of that period, absent an emergency. During that 60-day period, the adverse party, or the Respondent, must be served with notice of the Petition via personal service. From the date of service, the Respondent will have 20 days in which to file a written Answer to the Petition with the court and counsel. This period is extended to 30 days for Respondents served outside of Kansas. If a Respondent retains counsel, it is during these 60 days that negotiation and settlement discussions usually occur. Ultimately, the parties’ agreement, or the court’s orders, are memorialized in a final document called a Decree of Divorce. For more information about the orders that our family courts may make, click here to link to K.S.A. 60-1610, the statute governing Decrees of Divorce.
Substantively, divorce is about dividing a couple’s assets and debts, and assigning rights regarding minor children of the marriage.
1. Best Interests of the Child.
In divorce, there are several decisions that divorcing parties must make (or allow a judge to make) regarding their children, namely: custody, residence, parenting time, and support.
“Custody” is a legal term that denotes who has power to make big decisions in the children’s lives. Big decisions include health, education, religion, etc. In Kansas, for most purposes, there are two types of custody: joint and sole. In a joint custody arrangement, both parents have decision-making power for the children. In a sole custody arrangement, only one parent has decision-making power for the children. Both our Legislature and our judges presume that joint custody is in children’s best interests, and it is the burden of the parent asserting otherwise to prove to the court why joint custody is contrary to the children’s best interests. Courts rarely and carefully order sole custody. There is no such thing as “full custody” under Kansas law.
“Residence” simply refers to the designation of where the children will live after divorce. Residence may be referred to as the children’s “home base.”
c. Parenting Time.
“Parenting time” refers to the schedule of how the parents will divide parenting duties throughout a typical week. In the absence of parental agreement on this issue, most counties in Kansas have standard guidelines for parenting time. Click here to see a version of the Johnson County, Kansas Guidelines. Decisions as to custody, residence, and parenting time are memorialized in a document that the court approves called a Parenting Plan. It is common that families must revisit their Parenting Plans several times throughout their children’s minority, in order to ensure that the Plan continues to meet the children’s best interests.
d. Child Support.
“Child support” refers to children’s right to financial support from both parents. Kansas courts presume that a residential parent is providing financial support for the children. The amount of child support that a non-residential parent owes to the children is determined by a worksheet using both parties’ gross annual income, and calculating adjustments for work-related daycare and insurance. With some exceptions, the obligation to support children financially ends in Kansas when children attain the age of 18. Click here to access the Kansas Child Support Guidelines.
e. Continuing Jurisdiction of the Court.
Courts in Kansas have “continuing jurisdiction” over all issues regarding the minor children of the marriage until the children attain age 18. This means that, as children age, Parenting Plans often are modified to be more relevant to the family; and child support worksheets are modified to reflect the parents’ changing financial status and the children’s changing financial needs.
2. Equitable Division of Marital Assets and Debts.
Courts in Kansas have the power to divide a married couple’s assets and debts “equitably,” and not necessarily equally. Any asset or debt accrued during the marriage is subject to the court’s powers of equitable division, regardless of how the debt is titled. While it is my experience that most judges will attempt to make a division of assets and debts as equal as possible, judges in Kansas have the discretion to consider the circumstances of each case to determine a fair division of property and debts. At the outset of a divorce, it is important for clients to know the extent of any joint assets (including real property, as well as personal property such as investments, 401(k) and other savings plans, bank accounts, furniture, etc.) and joint debts (including outstanding mortgages, loans against retirement plans, credit card debt, etc.) During the 60-day waiting period, it is possible for attorneys to discover the nature of such assets and debts through formal legal methods.
In addition to property division, Kansas courts have the discretion to order one party to pay maintenance, or alimony, to the other party.
3. Finalizing the Divorce.
In most situations, parties will be able to agree on most of the above issues, and the attorneys will assist in such negotiations; however, there are times when negotiations break down and litigation is necessary. In that event, litigation will be scheduled according to the court’s calendar, and the parties’ schedules. Once the parties resolve their issues amicably — or through litigation — the court issues a Decree of Divorce. The Decree formally ends the marriage and changes the parties’ legal status from “married” to “divorced.,” and the law forbids the parties from re-marrying until 30 days following the date of the Decree.
In a divorce case, the parties may be restored to any former, or maiden name, via the Decree of Divorce. This is a broad sketch of divorce in Kansas. To learn how your case’s specifics fit into this general framework, please call or email me to schedule a consultation.
Modification of Child Custody and Parenting Time Issues
Usually, but not always, child custody and parenting issues arise in the context of post-Decree modifications of existing parenting plans. Parenting Plans should be considered as living documents, and they should reflect a family’s individual needs. Often, a parenting plan negotiated or ordered at the time of a divorce becomes outdated as children age. Also, in today’s society, families are becoming more mobile throughout the country and around the world, and relocation of one or both parents often causes families to revisit their Parenting Plans. Sometimes, parents are involved in criminal activity that could prohibit them from carrying out their parental duties. Or, in some circumstances, families never have established a formal Parenting Plan, and one becomes necessary. These are just a few examples of the bases upon which parenting plans can be established or modified. Click here to see the Kansas statute governing modification of parenting time.
Usually a post-decree child custody or parenting time case can be initiated via Motion, which must be served upon the opposing party and counsel. The Motion usually will be heard as soon as the court’s calendar can accommodate it. The Motion generally must allege a material change of circumstances has occurred which necessitates a modification of the existing plan, with some exceptions. Courts will consider whether such modifications are in the children’s best interests. This is a broad sketch of child custody and parenting time modifications in Kansas. To learn how your case’s specifics fit into this general framework, please call or email me to schedule a consultation.
Modification or Establishment of Child Support
Usually, but not always, child support issues arise in the context of post-Decree modifications to existing child support worksheets. Parents’ incomes fluctuate, and children’s needs change over the years. The children’s need for daycare might change; parents’ insurance obligations might change; children might develop “special needs.” These are just some of the reasons why a modification of child support might be necessary.
Like any Motion, a Motion to Modify Child Support must be served upon the responding party, and that party will have 20 days to file an Answer (30 days if served outside of Kansas). Then, it is common that such Motions will be heard by a county magistrate or Hearing Officer.
This is a broad sketch of child support modifications in Kansas. To learn how your case’s specifics fit into this general framework, please call or email me to schedule a consultation.
Families use paternity cases to determine paternity and to establish parental rights and responsibilities for children who were born outside of a marital relationship. It is the means by which a father is named legally for the children born outside of a marriage. Even if the parties agree on their children’s paternity, a paternity case is necessary to establish legal rights and responsibilities regarding the children.
Kansas law presumes that children born during a marriage are the husband’s biological children. The rationale behind this presumption is to prevent against attaching a stigma to children born out of wedlock. Courts in Kansas will conduct an investigation into whether it is in the children’s best interests to allow the parties to refute that presumption. Kansas courts have the power to approve or order parenting plans and child support in much the same way they would in a divorce case. Additionally, the court may award child support retroactive to the birth of the children, as well as expenses incident to the birth of the children.
Additionally, Kansas courts can do equity with regard to parties’ property in a paternity case; however, the court’s primary responsibilities will be to approve a Parenting Plan that is in the children’s best interests, and to establish reasonable child support.
There usually is no mandated waiting period after which a Decree of Paternity can be ordered; however, a responding party must be served with notice of the Petition for Paternity, and he or she then will be given the opportunity to file an Answer to the Petition within 20 days (30 days if served outside of Kansas).
Click here to see the Kansas statute governing the initiation of paternity cases in our state. This is a broad sketch of paternity in Kansas. To learn how your case’s specifics fit into this general framework, please call or email me to schedule a consultation.
Protection from Abuse (“PFA”) and Protection from Stalking (“PFS“)
These types of protective orders are civil in nature, and not criminal. That means that one party, the Plaintiff, alleges that another party, the Defendant, hurt or threatened to hurt the Plaintiff. The State is not a party to the case. The Plaintiff initiates the law suit by filing a Petition for Protection from Abuse, or a Petition for Protection from Stalking. The Defendant then will have 20 days to file an Answer to the Petition (30 days if served outside of Kansas).
To prevail on a PFA, a Plaintiff generally must show that he or she has or had an intimate relationship or a child in common with the Defendant. Once that threshold requirement is met, the Plaintiff generally must show the court that the Defendant actually harmed him or her; or that the Defendant placed or threatened to place Plaintiff in danger of imminent bodily harm. To prevail on a PSA, a Plaintiff generally must show the court that the Defendant engaged in a course of conduct that was harassing, annoying or threatening.
In both types of cases, final orders can be issued for up to one year, but can be renewed for an additional year for good cause shown. Violations of these orders can subject the violator to criminal penalties. This is a broad sketch of PFAs and PFSs in Kansas. Click here to review the Kansas definition of civil abuse, and click here to review the Kansas definition of civil stalking. To learn how your case’s specifics fit into this general framework, please call or email me to schedule a consultation.
Child in Need of Care (“CINC”)
Usually, the State initiates a CINC case after receiving information from law enforcement or social services agencies that a parent has abused, neglected or sexually abused a child; or that a child is without adequate parental care, custody or control. In CINC cases, parents and children have rights.
Parents are entitled to court-appointed representation if they cannot afford an attorney. Parents are entitled to a hearing on the issue of whether their children are “in need of care,” as Kansas law defines that term. If the court finds that the children are in need of care, then parents generally are entitled to a period of reintegration with their children, assisted by the reasonable efforts of social workers and social service agencies.
Children are entitled to representation of their best interests through a Guardian ad Litem (“GAL”), who gives them a voice in court. Children are entitled to permanency, preferably in their own homes once that becomes a safe option. The legal process in CNIC cases is viewed through the eyes of the children, such that long-term out of home placement is not favored. Parents whose children have been adjudicated as in need of care must understand that such a finding could subject them to termination of their parental rights.
This is a broad sketch of CINC law in Kansas. To learn how your case’s specifics fit into this general framework, please call or email me to schedule a consultation.
The State initiates a juvenile offender case after receiving information from law enforcement that a person under the age of 18 years has committed a crime. In juvenile offender cases, accused minors have rights.
Accused minors have the right to representation of counsel, and if they cannot afford an attorney, the court will appoint one for them. Accused children enjoy most of the Constitutional rights that accused adults enjoy, including the presumption of innocence until the State proves guilt beyond a reasonable doubt; the right to trial and cross-examination of witnesses; and the right against self-incrimination. Also, there may be opportunities for accused children to negotiate outcomes with the District Attorney’s office, or to pursue informal resolution of charges.
After the State files its Complaint against the accused juvenile, then the juvenile will appear before a judge for a first appearance. At that time, after consultation with counsel, the juvenile will enter a formal plea, and the case will proceed either to trial, or by other resolution (e.g., probation or diversion). Juveniles and their families must understand their rights in offender cases, as any juvenile adjudication or diversion could have consequences for the juvenile in obtaining employment, education, or in subsequent criminal proceedings.
This is a broad sketch of juvenile offender cases in Kansas. To learn how your case’s specifics fit into this general framework, please call or email me to schedule a consultation.
Probate and Estate Planning
I assist families in probate and estate planning issues by representing families and individuals involved in adoptions, guardianships and conservatorships, and care and treatment cases, as well as in drafting wills, powers of attorney, and advanced directives. Please call or email me to schedule a consultation to discuss how I can meet your probate and estate planning needs.
Other Family Law Issues
Please call or email me to schedule a consultation to discuss any of the following areas of family law:
– Name Change
– Equitable Division of Property Outside of Marriage
– Qualified Domestic Relations Orders (“QDROs”)
– Relocation Cases
– Motions to Enforce Decrees
– Separation Agreements
– Pre-Nuptial and Post-Nuptial Agreements
– Traffic Offenses
Kansas law defines “mediation” as “the process by which a neutral mediator appointed by the court, or by a hearing officer, assists the parties in reaching a mutually acceptable agreement as to issues of child custody, residency, visitation, parenting time, division of property or other issues.” Recently, mediation has gained in popularity among litigants, attorneys, and judges. Parties often want more control over the process and the outcome for their own families. Attorneys often want to facilitate communication between parties, who are dealing with more complex issues in family law today. Judges often want parties to be problem-solvers for their own families, in a more amicable environment than traditional litigation allows.
Mediation is required in many jurisdictions, before adversarial trial or litigation of parenting or child custody issues; however, parties increasingly are opting to seek the assistance of a mediator in resolving both parenting issues, and property issues in their divorce. Mediators can be private, or court-appointed. All Kansas mediators must be certified through the Office of Judicial Administration. Click here to learn how the Kansas Legislature has defined mediation. In Johnson County, Kansas, Court Services manages the family court’s mediation process. Click here to learn more about Court Services.