Posted by DivorceLine in Kansas Divorce Procedures
Complete overview of Kansas divorce laws for people considering a Kansas divorce or filing a Kansas divorce with issues to be resolved about child custody, child support, visitation and alimony.
Kansas Divorce Residency Requirements
In order to file your Petition for Divorce in Kansas, you must make sure the District Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Kansas residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:
The petitioner or respondent in an action for divorce must have been an actual resident of the state for 60 days immediately preceding the filing of the petition.
Military residence. Any person who has been a resident of or stationed at a United States post or military reservation within the state for 60 days immediately preceding the filing of the petition may file an action for divorce in any county adjacent to the post or reservation.
The divorce is typically filed with in county in which the filing spouse lives.
(Kansas Statutes – Chapter 60 – Article 16 – Subject: 607 and 1603)
Kansas Grounds for Divorce
The Petition for Divorce is the initial document filed with the Kansas court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.
The district court shall grant a decree of divorce for any of the following grounds:
No-Fault Based Grounds:
1) Incompatibility;
Fault Based Grounds:
1) failure to perform a material marital duty or obligation; or 2) Mental illness or mental incapacity.
Incompatibility by reason of mental illness or mental incapacity shall require on of the following:
a) Confinement of the spouse in an institution by reason of mental illness for a period of 2 years, which confinement need not be continuous; or
b) an adjudication of mental illness or mental incapacity of the spouse by a court of competent jurisdiction while the spouse is confined in an institution by reason of mental illness.
(Kansas Statutes – Chapter 60 – Article 16 – Subject: 1601)
Kansas Uncontested Divorce
This information is an overview of the uncontested Kansas divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Kansas.
To file for a divorce in Kansas, either spouse must be a resident of the state for 60 days before filing, and the divorce may be filed in a county where either spouse lives.
Kansas is a No-Fault state, which means incompatibility. General grounds for divorce are: 1) failure to perform a marital duty or obligation and 2) incompatibility due to mental illness.
Actions are filed in the District County of the county. The filing spouse is called the Petitioner; the responding spouse is called the Respondent.
Kansas permits legal separations when either spouse is a resident of the state for 60 days and under the grounds of 1) incompatibility, 2) failure to perform a marital duty or obligation, 3) incompatibility due to mental illness.
In Kansas, only one spouse need testify as to the facts in a divorce.
To file for an uncontested divorce in a marriage without children, the Petitioner must complete and file the following forms:
a) A Civil Information Sheet, which identifies the parties and the type of action:
b) A Petition for Divorce (without children), which identifies the parties, asserts the ground and asks the property and debt be distributed between them.
The Petitioner must notify the Respondent in one of the following three ways:
a) By Waiver, wherein the Respondent signs an Entry of Appearance and Waiver of Service, or
b) By Sheriff’s Service, wherein the Petitioner completes a Request and Service Instruction form (provided by the Clerk of the District Court), and the Sheriff serves the Petition and Summons on the Respondent;
c) By Mail, wherein the Petitioner mails the Petition to the Respondent, Certified Mail, Return Receipt Requested, and the Petitioner signs a Return of Service form for Certified Mail, which is filed with the court clerk.
After the appropriate papers have been filed, the Petitioner contacts the court to obtain a date and time for a hearing.
At the hearing, the Petitioner presents a completed Decree of Divorce, which is signed by the judge, and completes a Certificate of Divorce, which is obtained from the clerk.
To file for an uncontested divorce in a marriage with children, the Petitioner must complete and file a Petition for Divorce (with children) and all of the forms used for a marriage with no children as well as these:
a) A Parenting Plan, by which the terms and conditions of custody and visitation are established;
b) A Domestic Relations Affidavit, by which the domestic situation of the couple, their finances and children are established;
c) A Child Support Worksheet, by which the child support calculations are established.
After the appropriate papers have been filed, the Petitioner contacts the court to obtain a date and time for a hearing. He or she then sends a Notice of Hearing to the Respondent, Return Receipt Requested, and files the green postal card with a certificate of service.
At the hearing, the Petitioner presents a completed Decree of Divorce, which is signed by the judge, and completes a Certificate of Divorce, which is obtained from the clerk.
Kansas Simplified Divorce Procedures
Only 1 spouse need testify as to the facts in the divorce. In addition, marital settlement agreements are specifically authorized. Also, child custody and child residency agreements are specifically authorized and are presumed to be in the best interests of the child.
[Kansas Statutes Annotated; Chapter 60, Article 16, Subjects 1609 and 1610]
Kansas Property Division Factors
In Kansas, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the District Court within the Decree of Divorce.
Kansas is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the District Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the District Court to be fair.
The court shall consider when making a property award the following: the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; the tax consequences of the property division upon the respective economic circumstances of the parties; and such other factors as the court considers necessary to make a just and reasonable division of property.
(Kansas Statutes – Chapter 60 – Article 16 – Subject: 1610)
Kansas Spousal Support/Maintenance/Alimony Factors
In Kansas the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the District Court will order support from one spouse to the other on a case-by-case basis as follows:
The court will use it better judgment when decreeing any award to either party for future support denominated as maintenance. The court shall order an amount the court finds to be fair, just and equitable under all of the circumstances.
The court may decree that the future payments are modifiable or terminable under circumstances prescribed in the decree. The court may make a modification of maintenance retroactive to a date at least one month after the date that the motion to modify was filed with the court. In any event, the court may not award maintenance for a period of time in excess of 121 months. If the original court decree reserves the power of the court to hear subsequent motions for reinstatement of maintenance and such a motion is filed prior to the expiration of the stated period of time for maintenance payments, the court shall have jurisdiction to hear a motion by the recipient of the maintenance to reinstate the maintenance payments.
(Kansas Statutes – Chapter 60 – Article 16 – Subject: 1610)
Kansas Child Custody Factors
In Kansas, when determining custody of the children, the court shall consider all relevant factors, including but not limited to:
a) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto;
b) the desires of the child’s parents as to custody or residency;
c) the desires of the child as to the child’s custody or residency;
d) the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child’s best interests;
e) the child’s adjustment to the child’s home, school and community;
f) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent; and
g) evidence of spousal abuse.
(Kansas Statutes – Chapter 60 – Article 16 – Subject: 1610)
Kansas Child Support Factors
Either or both parents may be ordered to pay child support, without regard to any marital misconduct, based on the following factors: 1) the financial resources of the child; 2) the physical and emotional conditions and educational needs of the child; and 3) the financial resources, needs, and obligations of both the noncustodial and the custodial parent. Child support payments are to be paid through the clerk of the court or through the court trustee, unless the court orders otherwise. There are specific Supreme Court Child Support Guidelines contained in Kansas Statutes Annotated Chapter 20, Subject 165.
[Kansas Statutes Annotated; Chapter 20, Subject 165 and Chapter 60, Article 16, Subject 1610]
Kansas Grandparent’s Rights
Grandparent Rights to Visitation: Visitation may be granted in a custody order. Kansas Statutes Annotated, Section 601616 (K.S.A. §60-1616).
When Adoption Occurs: Adoption terminates rights unless you are the parent of the child’s deceased parent and the surviving parent’s spouse adopts.
Child Custody Statutes: Best interest of child considering:
a) any agreement of the parties;
b) length of time child has been under actual care and control of any person other than a parent and the circumstances involved;
c) desires of the parties;
d) desires of child;
e) interaction and interrelationship between child and parties, siblings and other significant persons;
f) child’s adjustment to home, school and community;
g) each party’s willingness and ability to respect and appreciate the bond between the child and the other party;
h) any evidence of spousal abuse; and
i) any other relevant factor. K.S.A. §60-16-1610(a)(3).
Four types of custody are recognized, in the following order of preference: 1) joint; 2) sole; 3) divided (if 2 or more children); and 4) non-parental. K.S.A. §601610(a)(3).
Parents May Choose: Yes
Kansas Military Divorce Laws
A Kansas military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.
Military Protection From Kansas Divorce Proceedings
There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Kansas court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
Serving an Active Military Spouse
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Kansas court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
Residency and Filing Requirements
The typical military divorce filing requirements are as follows:
a) You or your spouse must reside in Kansas
b) You or your spouse must be stationed in Kansas
Grounds for Kansas Military Divorce
The grounds for a military divorce in Kansas are the same as a civilian divorce.
Dividing the Property
Along with the normal Kansas property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.
The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
Child Support and Spousal Support
In Kansas, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Kansas child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.
Kansas Child Support Guidelines
The Kansas child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Kansas child support order.
Kansas Child Support Guidelines
> Income Share Model *: YES
> Percent of Income Model *: NO
> Worksheets Available: YES
> Extraordinary Medical Expenses Add on: YES
> Childcare Add on: YES
> Secondary Education Support: NO
> UIFSA: YES
* The Income Shares Model: Kansas child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Kansas child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.
For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.
As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.
For example: It is not common for a custodial parent to be paying support to a non-custodial parent.
Kansas Child Support Definitions
The court may adjust the minimum child support award, of either or both parent’s share of the minimum child support award, based upon the following considerations:
1. Long-Distance Visitation Costs
Any substantial and reasonable long-distance transportation/communication costs directly associated with visitation shall be considered by the court.
2. Visitation Adjustment
The court may allow a visitation adjustment using either subsection V.E.2.a or subsection V.E.2.b below but not both.
The court may reduce the noncustodial parent’s support obligation in consideration of the noncustodial parent’s expenditures on the child’s behalf related to time spent with the noncustodial parent. No reduction under this section shall cause the custodial parent to receive less than 33% of the Parent’s Total Child Support Obligation unless the custodial parent’s Proportionate Share of Combined Income is 67% or more. Any reduction should be prorated over twelve months unless the custodial parent requests otherwise.
Because the adjustment is prospective and assumes that visitation will occur, the court may consider historical non-exercise of visitation as a factor in denying or limiting an adjustment under this section. Brief visitation with the custodial parent shall not be deemed to interrupt the consecutive nature of the noncustodial parent’s visitation.
a. If the child spends more than 30% of the child’s time with the noncustodial parent or if the noncustodial parent has the child for a single block of time (including the -custodial parent’s visitation) in excess of thirty days, the court shall determine whether an adjustment in child support is appropriate. In making this determination, the court shall consider the fixed obligations of the custodial parent that are attributable to the child and to the increased cost to the noncustodial parent attributable to the child’s visit.
b. If a child spends more than fourteen (14) but less than thirty (30) consecutive days with the noncustodial parent (including any custodial parent visitation), the noncustodial parent’s support amount from calculated without a Visitation Adjustment may be reduced by up to 50% of one month’s support. An adjustment may be made for each distinct period of visitation.
3. Income Tax Considerations
If the parties do not agree to share the economic benefits of the dependency exemption for a minor child or, after agreeing, the custodial parent refuses to execute IRS Form 8332, the court shall consider the economic effect to both parties and may adjust child support. The court may also consider any other income tax impacts, regardless of an agreement upon the dependency exemption issue.
4. Special Needs
Special needs of the child are items which exceed the usual and ordinary expenses incurred, such as ongoing treatment for health problems, orthodontist care, special education, or therapy costs which are not considered elsewhere in the support order or in computations on the worksheet.
5. Agreement to Support Children Past Minority
The fact that a parent is currently supporting a child of the parties in college (or past the age of majority) may be considered if the primary residential custodian seeks to increase the child support for the benefit of any children still under the age of eighteen.
6. Overall Financial Conditions of the Parties
The financial situation of the parties may be reason to deviate from the calculated Basic Parental Child Support Obligation if the deviation is in the best interests of the child. If, for example, either party has more than one job, the circumstances requiring the additional employment should be considered. If the additional employment was historically relied upon by the parties prior to the dissolution of the relationship, then all of the income should be included in the calculation of the child support obligation. However, if the additional employment was secured after the dissolution of the relationship in an effort to meet additional financial responsibilities, consideration should be given to that circumstance, provided that the court shall keep in mind the best interest of the child.
7. Cost of Living Differential
The gross income of a parent shall be adjusted for differences in costs of living in various locations. If one parent lives in another state adjustments will be computed using the states average annual pay as compared to the state of Kansas.
8. Multiple-Family Adjustment
The Multiple-Family Adjustment is used to adjust the noncustodial parent’s child support obligation when the noncustodial parent has legal financial responsibility for the support of other children who reside with the noncustodial parent in addition to the children shared with the custodial parent.
DEFINITIONS:
A. Domestic Gross Income–Wage Earner
The Domestic Gross Income for the wage earner is income from all sources, excluding public assistance and child support received for other children in the custody of either parent. In determining Domestic Gross Income, it may be necessary for the court to consider historical information and the seasonal nature of employment. For example, if overtime is regularly earned by one of the parties, then an historical average of one year should be considered. Income, includes all income which is regularly and periodically received from any source.
For purposes of these guidelines, the term “public assistance” means all income, whether in cash or in-kind, which is received from public sources and for which the recipient is eligible on the basis of financial need. It includes, but is not limited to Supplemental Security Income (SSI), earned income credit (EIC), food stamps, Temporary Assistance for Needy Families (TANF), General Assistance (GA), Medicaid, Low Income Energy Assistance Program (LIEAP), Section 8, and other forms of public housing assistance.
Frequently, a wage earner’s income is adjusted for a salary reduction arrangement for qualified benefits offered under a cafeteria plan. In such cases, the use of gross wages (total income before any salary reduction amounts) results in the simplest and fairest application of the guidelines.
Therefore, the gross income of the wage earner, regardless of whether it is taxable or nontaxable, is to be used to compute child support payments.
B. Imputed Income
1. Income may be imputed to the noncustodial parent in appropriate circumstances, including the following:
a. Absent substantial justification, it should be assumed that a parent is able to earn at least the
federal minimum wage and to work 40 hours per week.
b. When a parent is deliberately unemployed, although capable of working full time, employment potential and probable earnings may be based on the parent’s recent work history, occupational skills, and the prevailing job opportunities in the community.
c. When a parent receives significant in-kind payments that reduce personal living expenses as a result of employment, such as a company car, free housing, or reimbursed meals, the value of such reimbursement should be added to gross income.
d. When there is evidence that a parent is deliberately underemployed for the purpose of avoiding child support, the court may evaluate the circumstances to determine whether actual or potential earnings should be used.
2. Income may be imputed to the custodial parent in appropriate circumstances, but should not result in a higher support obligation for the noncustodial parent.
C. Self-Employment Gross Income
Self-Employment Gross Income is income from self-employment and all other income. Other income includes all income *which is regularly and periodically received from any source excluding public assistance and child support received for other children in the custody of either parent.
D. Reasonable Business Expense
In cases of self-employed persons, Reasonable Business Expenses shall be those actual expenditures reasonably necessary for the production of income. Depreciation shall be included only if it is shown that it is reasonably necessary for production of income. Reasonable business expenses shall include the additional self-employment tax paid over and above the FICA rate.
E. Domestic Gross Income–Self-Employed
Domestic Gross Income for self-employed persons is self-employment gross income less Reasonable Business Expenses.
F. Cost of Living Differential
The cost of living may vary among states. The “Average Annual Pay by State and Industry” is used to compute a value by which the cost of living differential is figured. The Average Annual pay by State and Industry is reported by the United States Department of Labor, Bureau of Labor Statistics.
G. Child Support Income
Child Support Income is the Domestic Gross Income after adjustments for child support paid in other cases and for maintenance paid or received in the present case or other cases.
H. Child Support Adjustments
Child Support Adjustments are considerations of additions or subtractions from the Net Parental Child Support.
Kansas Divorce Definitions
This collection of definitions will help clarify some unique characteristics to the Kansas Divorce laws, process and paperwork which is filed with the court.
Filing Party Title:
Petitioner
The spouse who will initiate the Divorce by filing the required paperwork with the court.
Non-Filing Party Title:
Respondent
The spouse who does not initiate the Divorce with the court.
Court Name:
In the District Court in and for the County of ___________, Kansas
The proper name of the court in which a Divorce is filed in the state of Kansas. Each jurisdictional court typically has a domestic relations or a family law department or division.
The state run office devoted to enforcing existing child support orders and collecting any past due child support.
Document Introduction:
In the matter of the Marriage of:
The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.
Initial Divorce Document:
Petition for Divorce
The title and name of the legal document that will initiate the Kansas Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.
Final Divorce Document:
Decree of Divorce
The title and name of the legal document that will finalize the Kansas Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.
Clerk’s Office Name:
District Clerk’s Office
The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.
Either spouse must have been a resident of Kansas for 60 days immediately before filing for legal separation. The grounds for legal separation are: (1) incompatibility; (2) failure to perform a marital duty or obligation; and (3) incompatibility due to mental illness. [Kansas Statutes Annotated; Chapter 60, Article 16, Subjects 1601 and 1603].
Property Distribution:
Equitable Distribution
The applicable Kansas law that will dictate how property and debt is to be divided upon Divorce.
People who visited that page were looking for:
- kansas divorce process (18)
- kansas divorce waiver affidavit (1)
- kansas long distance parenting time adjustments (1)
- kansas spousal support/maintenance/alimony (1)
- kansas waiver form for 60 days divorce (1)
- Kansas waiver of marital interest form? (1)
- matrimonial action in Kansas active-duty military (1)
- military divorce child residency (1)
- overall financial condition child support kansas (1)
- petition for divorce form that includes request 60 day waiver kansas (1)
