Family Law: Frequently Asked Questions
- What type of cases are included in family law?
- What is the difference between a divorce and an annulment?
- What is the difference between divorce or annulment and separate maintenance?
- What are the residency requirements under Kansas law?
- How long do these types of proceedings take?
- What happens between the time of filing of a divorce case and the final resolution of the case?
- What court proceedings do I have to attend?
- What is Alternative Dispute Resolution(ADR)?
- What is conciliation?
- What is mediation?
- What is arbitration?
- What is a settlement conference?
- What is a Decree of Divorce?
- How does the court decide issues concerning custody and visitation?
- What is joint custody?
- What is sole custody?
- What is shared custody?
- How long does the court have jurisdiction over custody, support and visitation matters?
- What other issues are determined in divorce, annulments, or separate maintenance proceedings?
What type of cases are included in family law?
Family law generally includes divorce cases, annulment cases, paternity cases filed to establish that a person is the father of a child, defense of paternity cases where a person denies that he is the father of a child, custody cases involving questions of which parent should have custody of a minor child, child support cases filed to establish a child support order or to increase or decrease existing child support orders, issues involving visitation between parents and minor children, and adoption cases.t
What is the difference between a divorce and an annulment?
Under Kansas law, there are two ways by which a marriage may be dissolved. The most common method is by the filing of a divorce petition. Kansas generally recognizes "no fault" divorces, where the grounds for the divorce or dissolution of the marriage is incompatibility. A number of years ago, Kansas recognized various "fault" grounds in divorce cases, such as adultery, abandonment, gross neglect of duty, and other similar fault-based reasons for obtaining a divorce. These grounds were eliminated by amendments to the Divorce Code during the 1980's. Two other grounds which presently exists for divorce is failure to perform a material marital duty, which does contain a residual fault-based concept for dissolution of marriage, and because of mental illness or mental incapacity. The other type of proceeding utilized to dissolve a marriage is annulment. This requires proof that there is some legal defect to the marriage, itself. One example would be where the marriage is void, such as a situation where someone is already married to another person. The petitioner in this type of annulment case could allege that because the second marriage is bigamous, it is void. Another grounds for annulment is showing that the marriage is "voidable." This is usually done by demonstrating some fraud or misleading conduct on the part of the other spouse. As an example, the petitioning party could allege that he or she had been deceived by the other spouse in some fashion. Such deception could include assurances concerning financial ability or solvency which later prove untrue, a promise or statement of intent to have children during the marriage when the person making this statement is incapable of having children, or other such deceptive statements or assurances. Case law also reveals other circumstances for a finding of a voidable marriage. For example, a spouse who was intoxicated at the time of the marriage ceremony could claim that the marriage is voidable on that basis. Admittedly, this would be an unusual circumstance, but is utilized here to demonstrate the various types of evidence which could be used to prove the grounds necessary for an annulment. Most marriages in Kansas end by way of divorce rather than annulment, and usually annulments are filed in short marriages. The effect of a divorce or annulment is essentially the same, that is, the dissolution of the marriage.
What is the difference between divorce or annulment and separate maintenance?
A divorce or annulment is filed for the purpose of dissolving the marriage. Along with this, the court also has jurisdiction to enter orders pertaining to custody of minor children, support of minor children, payment of support or maintenance to either spouse, division of property, division or payment of debts, and other relief as might be appropriate. In a separate maintenance case, the court has jurisdiction to enter the same relief as can be granted in either a divorce or an annulment, as just described, but the difference is that the marriage is not dissolved. In other words, following entry of a Decree of Separate Maintenance, the parties are still legally married, and can not marry any other person without going through a separate divorce or annulment proceeding. This type of proceeding is not often used, but may be desirable for persons who have religious, philosophical, or personal reasons for opposing the dissolution of the marriage, but can no longer live together as husband and wife. If one party to a separate maintenance proceeding asks the court for a divorce, then the court has no alternative but to enter a Decree of Divorce rather than a Decree of Separate Maintenance. This is another reason why separate maintenance decrees are rarely entered.
What are the residency requirements under Kansas law?
In order to file a divorce case in Kansas, a person must be a resident of the state for at least sixty days. The sixty day requirement does not exist in annulment or separate maintenance cases, although the petitioning party must still be a resident of the state of Kansas. Generally, the petitioning party will also be a resident of the county where the case is filed, although under certain circumstances, a case may be filed in a Kansas county where the respondent resides, is an employed, or can be served with summons in the case. The respondent, who is the person against whom the case is filed, must generally either reside in Kansas, must have been married within the state of Kansas under the states marriage laws, or must have some other contact with the state of Kansas. If these factors do not exist as to the respondent, the court still has authority to grant the divorce, assign property located within the state, and provide for custody of children physically residing within the state. However, absent personal jurisdiction over the respondent by some prior contact with the state of Kansas, the court probably would not have jurisdiction to order child support or maintenance, or require payment of debt by a nonresident respondent. Obviously, the facts of each type of divorce case and residency situations will vary, so it is best to consult with a knowledgeable family law practitioner to obtain correct answers to questions arising in each given case.
How long do these types of proceedings take?
Under Kansas law, there is a sixty day waiting period, also known as a "cooling-off" period before which a couple can be divorced. This period is designed to allow people the opportunity to attempt reconciliation before a divorce is granted. There is no similar waiting period in the case of an annulment or a separate maintenance proceeding. The reason for this in annulment cases is that if the marriage is void or voidable, the presumption is that it should be dissolved. In separate maintenance cases, there is no dissolution of the marriage, so therefore no need to wait the statutory sixty days prescribed for divorces. As a practical matter, if a divorce case is contested, it generally takes longer than sixty days for the matter to be resolved. This is because often times it is necessary, in contested cases, to obtain financial and income information, and to generally prepare the case for trial which will be required if the case is contested by the parties.
What happens between the time of filing of a divorce case and the final resolution of the case?
Often times, if there are children involved or a discrepancy between the parties in their respective income abilities, the court will enter temporary orders pending the final outcome of a case. The court has authority to enter a temporary restraining order, which is designed to keep the parties away from each other until the case is concluded, and may also be utilized to require one of the parties to move from the marital residence. The court also has authority to enter temporary custody orders providing for residential placement of the minor child and for visitation and contact between the parents and their children. The court may also enter a temporary child support order to provide for support of any minor children. A temporary maintenance order may be entered, as well, if one spouse makes considerably more than the other, or if there are significant marital debts which need to be paid. These temporary orders may always be modified by the court until the case is concluded, and do not necessarily indicate what the final result in the case will be.
What court proceedings do I have to attend?
Often times, after a petition is filed and if temporary orders are requested by one of the parties, the court will conduct a hearing within a few days after the filing to resolve these matters. Following that, the court may hold periodic hearings as the case progresses to monitor the status of a case. The court may conduct what is known as a pretrial conference if the case has not been settled, to determine what issues have not been settled by the parties, to identify witnesses who may be called to testify at trial and exhibits which may be offered at trial, and to possibly assist in the resolution of these issues short of a trial. If the case is not settled, the court will eventually set the matter for a full trial, allowing the parties to present their witnesses, exhibits, and other evidence. Following that presentation, the court will then decide those issues which have not already been agreed to by the parties through settlement.
What is Alternative Dispute Resolution(ADR)?
During the past several years, the courts have more frequently utilized alternative dispute resolution (ADR) measures to assist in the resolution and finalization of divorce cases. These ADR methods are designed to facilitate settlement between the parties, or to restore settlement negotiations which have previously been unsuccessful or have broken down. ADR can include conciliation, mediation, arbitration, and settlement conferences.
What is conciliation?
Conciliation is an attempt to restore lines of communication between the parties, which previously existed, which, for some reason, have broken down. A neutral person, known as a conciliator, enters into dialogue with the parties to try and restore trust between the parties and allow for resumption of settlement negotiations. In Shawnee County, conciliation is often utilized in child custody cases, with an officer from Court Services specially trained in custody and visitation matters acting as the conciliator. The conciliation may be a single meeting to attempt to restore communication, or an ongoing series of meetings with the conciliator to assist the parties in developing better communication skills. Ordinarily, in conciliation, the parties attend the meetings with the conciliator without their respective attorneys being present. Often times, the conciliator will provide a written report back to the court, which may encompass the parties agreement reached during conciliation, or report why resolution and agreement was not reached.
What is mediation?
Mediation is a somewhat more formal procedure, which like conciliation, attempts to restore communication between the parties to facilitate settlement. Mediators are generally specially trained facilitators, who may or may not be attorneys. Mediation generally attempts to seek resolution within a shorter period of time than may be attempted through conciliation, although some mediation sessions may last an entire day or over parts of several days. Because of its more formal nature, mediation may be divided into sessions designed for different purposes. Often times, the parties counsel will assist the client to prepare for the mediation session, and will also attend the session. Mediation may begin with an opening session, sometimes called a plenary session, where both parties attend with their attorneys and the mediator, and each side presents an initial statement to the mediator outlining his or her issues and facts which are in dispute. Following that, the mediator may meet separately with each of the parties and their respective counsel in caucus sessions, where the mediator will ask additional questions of the individual or his or her attorney in order to better understand the full nature of the disputes and to explore settlement options for resolution of these disputes. The mediator will then meet with the other party and his or her attorney for the same purpose and to also convey any settlement proposals or suggested resolutions from one side to the other. The caucuses may continue for some period of time with the mediator alternating between the parties and their respective attorneys, with the issues being further defined and settlement proposals carried back and forth between the parties. If it appears that a settlement is close, the mediator may reconvene a plenary session with both parties and counsel in attendance to attempt final resolution of any remaining disputes. If a settlement is reached, the mediator will then reduce the settlement to writing and ask both parties and their attorneys to sign the written document. The goal is to try to reach a written settlement satisfactory to both parties prior to the conclusion of the mediation. If it appears that settlement is close, the mediator may adjourn the mediation to another day to allow for continuation of the process. However, if it appears that settlement can not be reached, the mediator will then conclude the mediation. Generally, in mediation, the mediator does not report the results of mediation back to the court unless there has been a successful resolution of all issues. If the issues have not been resolved, the mediator will generally only report that mediation was attempted and failed.
What is arbitration?
Arbitration differs from mediation and conciliation in that the arbitrator has authority to enter a decision which will be binding on both parties. The arbitrator is essentially acting as the judge in the case. Arbitration is not often used in divorce cases in Kansas, and can not be used unless both parties agree to the procedure. If arbitration is used, then both parties must agree in advance on the person who will be the arbitrator. An arbitration agreement will be signed designating this person to act as arbitrator, and stating that the parties agree to be bound by his or her decision. Once the arbitrator is named by agreement, the parties will then each present their respective evidence to the arbitrator for final decision. This presentation of evidence would be very similar, if not identical, to that presented at a trial. The arbitrator will then consider this evidence and make a ruling, sometimes known as an award, deciding the issues which have been submitted. Generally, once this decision has been made, then it is binding on the parties and there is no right of appeal from this decision.
What is a settlement conference?
A settlement conference is used in some cases to facilitate settlement when the parties can not agree and if other methods of alternative dispute resolution have failed. The judge assigned to the case will ordinarily assign the case to another judge who will conduct the settlement conference. A settlement conference borrows some of the attributes of the conciliation and mediation processes, and allows the parties to present a synopsis of their evidence which would be utilized at trial, and to make arguments concerning proposed disposition of the case to the settlement judge. The judge will then make suggestions to the parties as to how he or she believes that the case may ultimately be decided by the trial judge, based upon the evidence synopsis and arguments made by the parties. The settlement judge has no authority to decide the case, and is not authorized to discuss with the trial judge any information divulged to the settlement judge during a settlement conference. If the case is settled, the settlement judge will ordinarily ask the parties to either prepare a written settlement agreement or to dictate the terms of their settlement agreement into the record through the court's official reporter. If settlement can not be reached, the settlement judge will simply report that fact back to the trial judge, and the case will proceed on to trial. Settlement conferences are not intended to in any way coerce people into settling or resolving their cases, but are designed to encourage them to settle if at all possible.
What is a Decree of Divorce?
A Decree of Divorce, sometimes called a Journal Entry of Divorce, is the final disposition of the case. All issues pertaining to division of property, an assignment of debt, are decided by the judge and generally can not be changed once the Decree is entered. However, issues pertaining to children, such as custody, support, and visitation, are always subject to review and modification by the court following entry of the decree, upon a showing of changed circumstances. Spousal maintenance is also subject to modification (unless the parties have agreed otherwise in writing) although spousal support can never be increased above the initial amount set in the Decree of Divorce, without agreement of both parties. Any reduction in spousal maintenance following entry of the Decree of Divorce can only be done upon a showing of changed circumstances, such as loss of employment or reduction of income by the spouse paying the maintenance, or death or remarriage of the spouse receiving the maintenance. Spousal maintenance is generally set to run for a specified number of months or years, rather than indefinitely.
How does the court decide issues concerning custody and visitation?
Generally, courts hearing divorce cases would prefer that the parties reach an agreement between themselves as to custody and visitation relating to the minor children. Generally, the courts believe that parents are better able than judges to resolve these disputes. However, if the parties are unable to reach an agreement on matters relating to custody and visitation, then the court will enter an order providing for this. The court will usually order that the parent shall have joint custody of any minor children, but that the child or children should physically reside with one of the parents. The other parent will be allowed frequent access to the child or children through visitation or other means. The primary question for the court is what is in the child's best interest concerning these matters.
What is joint custody?
Joint custody envisions that both parents will have equal access to the child and will consult with each other concerning important decisions regarding the child, such as medical treatment, education, and other similar matters. Joint custody is the preferred method of custody under Kansas law. In most joint custody situations, the child or children will continue to physically reside with one of the parents, but with the other parent having frequent contact with the child or children through weekend visitation, and extended time with the child or children during the summer months.
What is sole custody?
Sole custody is when custodial situation where one parent has physical custody of the child or children and is authorized to unilaterally make decisions concerning that child without the necessity of first consulting with the other parent. Sole custody may sometimes involve restrictions on the right of the noncustodial parent to access to the child. Sole custody is not preferred under Kansas law, and is only used in rare circumstances. The parent seeking sole custody generally has a rather difficult burden of proof, and must show that the other parent has been unable to form or maintain a proper parent-child relationship, has neglected the child, has abused the child, or that there are other valid reasons for a sole custody order. Sole custody is not the same as termination or severance of parental rights.
What is shared custody?
Shared custody envisions that the child or children will spend approximately equal time with each parent, and may actually reside part-time with each parent. Courts are often unwilling to order shared custody absent an agreement of the parties, based upon the belief that it is perhaps not in the best interest of the child or children to move from one residence to another on a frequent basis. This is especially true if the parents reside in different school districts, different cities, or different states. However, most courts will approve an agreement between the parents for shared custody, as long as such agreement does not otherwise appear to be detrimental to the children.
How long does the court have jurisdiction over custody, support and visitation matters?
Generally, the court will continue to have jurisdiction or authority over change of custody, change of visitation, or increase or decrease of child support pertaining to minor children, until each child reaches the age of eighteen or graduates from high school, which ever is later. The parties, by agreement, can agree to extend the period of time during which support is provided to children of the marriage.
What other issues are determined in divorce, annulments, or separate maintenance proceedings?
The court has jurisdiction to divide property acquired by the parties during the marriage, and to assign the indebtedness incurred during the marriage. Generally, real and personal property will be divided and assigned to the respective parties, although the court has jurisdiction to sell property and divide the cash resulting from such sale. Ordinarily, property is divided equally between the parties, although there is no requirement that this be done in every case, and the court in each case has wide discretion to determine whether some other division of property is more equitable. Likewise, debt can be divided equally between the parties, but may also be divided on the basis of the ability of each party to pay. For example, if one spouse made considerably more income than the other, then that spouse might receive a greater portion of the debt according to his or her ability to pay. The courts have wide latitude in making these decisions, and will look to such factors as the respective ages of each spouse, the length of the marriage, the property owned by each spouse prior to the marriage, the present and future earning capacities of each spouse, how the property was acquired during the marriage, family ties and obligations, whether maintenance should be allowed, whether one spouse has dissipated assets during the course of the marriage, and such other factors as the court considers necessary to make an equitable division of property.