Dissolution of Marriage Information Packet
This document is presented in hopes that it will answer some of the questions that you may have pertaining to the dissolution of marriage. The materials do not constitute a legal document, and are merely observations of an attorney practicing in Newton, Kansas, primarily in the field of domestic relations. Some of the materials contained herein may not pertain to you specifically, and are intended as a general outline of domestic relations cases, the procedure involved, and the various issues that may be raised. Any specifics, of course, will depend upon your particular circumstance and should be discussed with your attorney.
The beginning point for any domestic relations case is the marriage itself. The marriage is a legal relationship based upon a contract between the parties. The contract is based upon the mutual promises, one to the other, made at the time of the marriage, whether it be a religious ceremony, a civil ceremony, or a common-law marriage.
There are three types of dissolution of marriage. The most common is, of course, divorce, with the other two being separate maintenance and annulment.
A divorce is a dissolution, or termination, of the marital contract in its entirety.
Separate maintenance extinguishes all responsibilities, liabilities and privileges of the marital relationship, and is procedurally the same as a divorce, except that the parties remain legally married at the end of the procedure.
Either divorce or separate maintenance may be appropriate when something goes wrong with the relationship between the parties, or when there is a breach of the contract between them. The legal “ground”, or reason, is stated either as “incompatibility” or as failure to perform a marital duty.
Annulment is also a termination of the marital relationship, but is based upon the illegality of the contract itself, such as a marriage contracted by fraud, or one in violation of the age requirements for purposes of obtaining a license, or when one is already married and attempts to marry another.
A divorce action is a lawsuit wherein the petitioner is requesting that the contract between the parties be terminated and that provisions be made for the custody, parenting time and support of minor children, if any, for division of property and indebtedness, and for the resolution of any other issue that may require the Court’s attention. The Court makes every effort to be fair to both of the parties.
It is the policy of this office to advise you as to the law applicable to your situation, to analyze the facts of your case in light of our experience over the last thirty plus years with the community and with the Courts, and to present your case in the best light as may be possible under the circumstances. In order to fully analyze and present your case, we must have all of the facts, both good and bad. If we do have all of the facts and circumstances, we will be able to give you an opinion as to the ultimate outcome of the case. That opinion, however, should certainly not be taken as a guarantee.
The following information will set out in more detail the particular issues that may be raised in your case. Hopefully, you will read them for the purpose of gaining a general understanding of what is involved.
EMOTIONAL IMPACT OF DIVORCE
There are, of course, several religious and philosophical pronouncements for and against divorce. We do not presume here to attempt to settle the religious or philosophical questions pertaining to dissolution of a marriage. It must be acknowledged, however, that there is obviously an emotional impact to divorce, both upon the parties themselves, upon children, and other family.
Divorce has been described by psychologists as similar to a death in the family. It is seemingly worse, however, by reason of the fact that the “body is still walking around”.
Additional difficulties occur in those cases when the parties have been blessed with children because of the fact that the parental relationship requires a continuing contact with the other party, at least during the period of time that the children are minors. It is suggested that this continuing contact actually is present during the rest of the parties’ lives in the event of children, because those children do not cease to become your own when they reach the age of 18 years. They will always have a mother and a father. It is hoped that they will have the opportunity to maintain a relationship with each parent.
It is strongly suspected that another reason for the emotional impact of divorce is that it constitutes a failure. No one likes to fail at anything. The failure of a marriage is perhaps the most “personal” failure that one can undergo.
In order to overcome these feelings of failure and the emotional problems associated with divorce, it is helpful to remember that in a legal sense we are talking about the termination of a contract. You may feel that the other party was at fault, or breached the contract, or that you yourself were at fault and did not abide by the contractual terms. The truth is probably somewhere in the middle. There are very few divorces which are caused by the actions of only one of the parties.
There are a number of emotions that can be raised by divorce including anger, guilt, loss of self-esteem, fright, or fear of the unknown, insecurity, mistrust, relief. It is suggested that if you feel that you are having difficulty overcoming any of the negative emotions that you obtain the assistance of a qualified counselor.
COUNSELING AND MEDIATION
Counseling is required by the Court in cases involving children to minimize the negative impact of the family breakup, and to educate the parties regarding their continuing responsibilities to one another and to the children. Harvey County has joined Sedgwick County and McPherson County in specifically requiring such counseling in divorces involving children. The divorce cannot be granted until such counseling is obtained, or in the alternative, that the party who did not obtain the counseling, may be penalized by the limitation of their parental privileges. The form of counseling required is for the parties to attend at least one session of the “Divorce Education Classes” presented by Prairie View Mental Health Center.
There also may be some cases in which mediation is either agreed upon by the parties or ordered by the Court. It will always be required in contested custody cases. Domestic mediation is defined by State law as “the process by which a neutral mediator appointed by the court assists the parties in reaching a mutually acceptable agreement as to the issues of child custody and parenting time.” An attorney mediator may expand the mediation to other issues raised in the divorce action, such as property division and related issues. Parties may seek mediation upon a voluntary basis, without court order at any time; before, during or after a divorce action. There are several trained domestic mediators in Harvey County, some of whom are attorneys and some who are not. In the event that the parties have insufficient income to afford a private mediator, the Community Mediation Center, affiliated with the District Court, does have trained mediators who will perform such services for a substantially reduced cost.
The mediator should be one who is familiar with the operation of the law and one who possesses skills in settling disputes. He/she would neither act as attorney nor therapist (although he/she may be either). He/she will not act as the judge or present an opinion as to the rightness or wrongness of either party’s position. The mediator would, in fact, attempt to steer the parties away from “positions” and attempt to emphasize a resolution of the issues involved. He/she would be only a facilitator toward the goal of resolving those issues, based upon knowledge of the law and the circumstances of each case. The mediator cannot be called to testify in Court.
A divorce action is actually broken into two parts.
1.The first part is the dissolution, or termination of the contract of marriage itself.
2.The second part is all other issues such as custody, parenting time, child support, maintenance/alimony, division of property, division of indebtedness, provision of insurance, tax considerations, and other issues which may be of particular significance to your circumstances.
The initial “Court papers” that are filed with the Court are the Petition, and either a Summons, or Entry of Appearance and Waiver of the Issuance of Summons, a vital statistics worksheet, which is provided for use by the Division of Vital Statistics in Topeka, and a Domestic Relations Affidavit, which is mainly a financial statement. Generally, there is also filed an Interlocutory Order which establishes the rights and obligations of the parties during the period of time between the filing of the Petition and the granting of the divorce. In the event that there are minor children involved, there are also other documents and information that are provided to the Court at the time of filing. The usual documents are as follows:
1. Petition: The Petition is the request of the petitioner (the one filing the divorce) that a divorce be granted and that the Court also enter an order pertaining to all other issues that may be involved.
2. Summons: The law requires that notice be given to the other party involved, ie., your spouse, regarding the pending lawsuit. This notice may be given to the other party by a summons which is delivered along with the petition (and other papers, if applicable) by a sheriff’s officer, or other officer of the Court. The officer then makes a Return of Summons, or gives notice to the Court that the other party, or respondent, has been personally notified of the pending action. The respondent then has twenty days to formally respond to the petition by filing a written response, or “Answer”. This “service of summons” may be accomplished in other ways, the most usual being that the other party signs a Wavier of the Issuance and Service of Summons. This would be provided by your attorney in cases where appropriate, and the respondent would merely sign the waiver which would then be filed with the Court and demonstrate to the Court that the respondent did have actual notice of the proceedings. Notice may also be given by certified mail with a return receipt showing that actual delivery was made.
3. Vital Statistics Worksheet. This is merely a form which the State uses for statistical purposes. It provides information regarding your names, ages, addresses, children, length of marriage, education background, etc.
4. Interlocutory Order. In most cases, it is advisable to prepare and file an Interlocutory Order, which is a “temporary order”, valid only during such time as the divorce is pending. This order establishes which party shall have possession of specific property, who shall have possession of the residence of the parties, the obligations of each of the parties pertaining to payment of indebtedness, and other such matters. In the event that there are minor children, the Interlocutory Order also establishes temporary custody and support orders, as well as parenting time for the non-custodial parties. The Interlocutory Order may be changed at any time during the proceedings and is usually superseded by any settlement agreement between the parties which is filed with the Court. An additional order is required when there are minor children, requiring the parties to attend a workshop relating to the impact upon the children of divorcing parents.
5. Temporary/Permanent Parenting Plan. This document is an agreement or order issued defining the legal custody, residency, and parenting time to be exercised by parents with regard to their minor child(ren). This document is now required by the Court and may be a “temporary” parenting plan, submitted with any Interlocutory Order dealing with minor children, and it then can be revised to reflect the Permanent Parenting Plan submitted with the final Journal Entry and Decree of Divorce.
6. Child Support Worksheet. This document contains the calculation of child support to support the temporary and permanent child support order.
7. Domestic Relations Affidavit. This is a sworn statement relating to the assets, liabilities, income and other financial information and is required by the court in all cases.
8. Decree of Divorce. A decree of divorce cannot usually be obtained until sixty days after the filing of the petition. The decree is final in regard to issues such as payment of indebtedness and division of property. It is not entirely final in regard to issues pertaining to children, such as custody, parenting time, support and provision of insurance. Orders regarding children can be modified upon proper application to the Court at any time prior to the 18th birthday of the child or the month following high school graduation, whichever occurs later with the decree. There is also submitted an affidavit in support of the decree and a permanent parenting plan, if there are minor children.
9. Motions and Settlement Agreements. There may be, during the course of a divorce action, one or several motions filed with the Court requesting specific orders on any particular issue. Because of the fact that many types of motions may be filed, they will not be discussed here. They normally are not necessary in a “typical” divorce case. In the event that they are, you will certainly be advised by your attorney
Settlement Agreements are agreements or contracts made by the parties in resolution of the issues of the divorce. They may be limited to a few issues, but more likely would cover all issues in one document. The Settlement Agreement may then be incorporated by the Court into the Decree of Divorce so that it then becomes the order of the Court. More will be provided about Settlement Agreements in a separate section.
10. EMERGENCY DIVORCE. The law provides for an emergency divorce in certain circumstances. Generally it requires a statement of medical emergency. Emergency divorces require that at least 10 days notice be given prior to the taking of such a divorce. As a practical matter, with some rare exceptions, the court will require that all issues be resolved prior to granting an emergency divorce.
CHILD CUSTODY, PARENTING TIME, AND SUPPORT
The Court is generally required to make an order of joint legal custody in all cases involving minor children. There can be deviation from this ultimate order only in the event that the Court makes specific findings and rulings as to why one parent or the other should not be afforded the privileges of joint legal custody.
Joint legal custody is best explained by stating that the parents maintain their equal status as parents. Neither parent has a superior right over the other in decision making, etc. The legislature and the Courts have attempted, through joint legal custody, to maintain the parental relationship much as if the parties were still married. For practical reasons, the parent with whom the child is residing is normally called the residential custodian and generally would be the one making the day to day decisions regarding the education, health and welfare of the child, while in their care.
A joint shared residential custody may meet the requirements of the child and parents. This is where the custodial arrangement is approximately 50/50 between the parents. This idea has gained popularity over the past several years.
Parenting time is that period of time which the “non-custodial parent” has with his/her child/children. It has been the general trend of the Court to grant more time or access to the “non-custodial parent” than was normal in the past. It is also the trend that fathers are increasingly acknowledging and accepting the responsibility of assisting with the raising of the children for extended periods of time each year. Many wives and mothers are surprised, or suspicious, at any renewed, or newly developed, sense of parental responsibility on the part of the father. Occasionally, this suspicion is justified, but more often is a normal result arising from the realization by the father that he is losing a part of the family and his wish to hold on to the remainder. It is, in fact, the case that more fathers than ever before are assuming the role of residential custodian.
We as parents generally need all the help we can get, and access by both parents should, therefore, be encouraged and approached with the sense of responsibility that we all should have for our children.
This responsibility goes not only to the children, but also to the other parent even after the divorce. The parents should assist one another in areas of discipline and education, and one parent should not be the “bad guy” while the other is the “Good-time Charlie”, or “Disney Land Daddy” (or Mommy).
There will be a requirement by the Court, in contested cases, that there be a home investigation of both parents’ homes. This is performed by Court Services or some other agency appointed by the Court. This step is taken if mediation is unsuccessful and the parties cannot agree as to the terms of the custody and/or parenting time.
Child support will generally be established by support guidelines provided by the State of Kansas. These guidelines are rather precise and can only be deviated from by the Court under special circumstances. The guidelines have been devised by a statistician and by a committee made up of lawyers, judges, and lay persons, including both male and female divorced parents. Generally, the guidelines are based upon averages of what people normally spend on their children (not what it actually takes). As must be obvious, the more money that a couple earns, the more they are going to spend on their children. The guidelines are based upon this undeniable fact. The guidelines establish percentages of contribution by each parent, and the non-custodial parent is required generally to provide the percentage of his/her income that he/she would normally spend upon the children if the parties were married. Your attorney will provide you with specific examples based upon your financial circumstances.
The court requires that a Child Support Worksheet be prepared in each case involving child support. The worksheet contains the calculations for support. Included in the formula are provisions for child care, insurance and adjustments for tax exemptions, long distance parenting time costs and for extended parenting time arrangements. Again, your particular circumstances will be discussed with you by your attorney.
MAINTENANCE OR ALIMONY
The Kansas legislature has replaced the word “alimony” with the word “maintenance”, which means the same thing.
Whereas child support is a legal obligation of each parent toward the support of his child/children, maintenance is a non-legal obligation that may be imposed by the Court for specific reasons. Generally, the reason is the need of the recipient and the payor’s ability to pay. Maintenance differs from child support not only in its legal definition, but also by reason of the fact that it is deductible from the payor’s gross income and is taxable to the person who receives it. Child support, on the other hand, is not deductible to the person that pays, nor is it taxable to the person who receives it.
Maintenance, or alimony, has undergone a significant period of change over the past several years. Whereas several years ago, perhaps by reason of the feminist movement, it was rather rare for the Court in Harvey County to award maintenance in any but a few cases. Such is no longer the case. Although maintenance went through a period of disuse, the courts are returning to considerations of such spousal support. Generally the court will not award maintenance in cases where there has been a marriage of short duration. But in longer marriages, especially where there is a difference in incomes, the court may well order the payment of maintenance. The Harvey County Bar Association has adopted Harvey County Guidelines for Maintenance, which Guidelines have been blessed with Court approval. The Court is not bound by the Guidelines, but the experience has been that the Court will normally follow the recommendations of those Guidelines. Your attorney will be able to review those Guidelines in the context of your situation.
Generally, the Guidelines base the payment of Maintenance upon the length of the marriage and the differences in income, although there are several other factors which are considered by the Court.
Maintenance can be used as a tool in resolving property settlement disputes by reason of its tax deductible feature. Under certain circumstances, maintenance can be used to provide income, or assets, so as not to disturb the property, business, or occupation of the paying spouse. This tool is used particularly in cases where there is a farm or business which should not be disturbed, but where the Court must make some provision for the equalization of such assets. Maintenance presents an option, although careful consideration must be given to the Internal Revenue Service Code and Regulations regarding such transactions.
It has been our observation over the years that maintenance can be used in certain circumstances to benefit both of the parties by providing needed income to one spouse, while preserving assets in the other, along with the tax deductions.
DIVISION OF REAL ESTATE AND PERSONAL PROPERTY
Property can be divided into three categories, ie., real property, personal property and debt. Real property is real estate, such as your house or land and the fixtures attached to it. Personal property is generally everything else, including money, stocks, bonds, retirement accounts, pension plans, automobiles, mobile homes, household furnishings, clothing, and personal effects. Debt may be considered negative property; property or money that you owe to other people. Debt will be considered in another section.
The Court strives toward an equitable, or fair, division of property. This division is based upon several factors; including the manner of acquisition of the property, the income capabilities of the parties, the income potential, needs, financial abilities, family relationships, and other factors. It has been the case in the past than an equitable division of property was considered to be that the wife got the property and the husband got the debt. In the past, another strong sentiment was, “what’s mine is mine, and what’s yours is mine, too”.
Such is no longer the case. The Court generally begins its consideration by establishing an equalization of both property and indebtedness. The equalizing line down the middle is then moved one way or the other to meet the needs of the particular situation which exists.
Generally the Court will determine the value of the various assets at the time of the separation or the date of the filing of the divorce. However, the Court may value the personal property at some other time, if the circumstances dictate. Stock, for example, may fluctuate in value during the period that the divorce is on file and the Court may decide to value such investments upon the date of the divorce hearing itself. Usually we would ask that the Court determine the valuation date at the time of the pretrial hearing.
In addition, the law requires that the Court examine the tax consequences of the property division of both real estate and personal property. In some instances, it can make considerable difference.
The Court should also make a determination as to any necessary changes in beneficiary on insurance policies, trust instruments or designations upon accounts, such as payable on death provisions and joint tenancies.
The value of real estate is based upon the equity. Equity is the difference between the value of the real estate minus the amount that is owed upon it. As an example, a $50,000.00 house with a $25,000.00 mortgage is worth $25,000.00 insofar as the division of property or assets is concerned. Insofar as the Court is concerned, each party, therefore, would own a $12,500.00 interest in the home.
Personal property is treated in much the same way as real estate. If the Court awards one party an automobile worth $5,000.00, it generally will also require that person to pay any indebtedness remaining on the car. If, therefore, there is an indebtedness of $2,500.00, the Court would consider that the party has been awarded a $2,500.00 asset.
Special mention should be made regarding the division of Retirement accounts. Such division may be made. However, very specific rules must be followed through the preparation of a “Qualified Domestic Relations Order” (QDRO) so that the division may be accomplished without serious tax ramifications.
The rules regarding the division of property are, of course, not iron clad, and are subject to the particular circumstances involved in the case.
DIVISION OF INDEBTEDNESS
Debts of the parties are perhaps one of the most controversial and misunderstood areas of divorce actions. It must be remembered that divorce actions are between two persons. No creditor is ever made a part of the divorce action, and by reason of such fact, the creditor is not obligated to abide by the Court’s decision as it affects the two parties involved. Therefore, when there is a mutual debt such as a mortgage, the creditor may look to either party for payment, regardless of the manner that the Court assigns the debt. As far as the creditor is concerned, both parties remain responsible.
Although this is particularly true in cases where both parties have signed a note or mortgage, or other evidence of indebtedness, it may be true even in the area of open accounts, or other marital debts that may have been incurred by either party. Your attorney will be able to better advise you regarding any specific indebtedness about which you may be concerned. You should be advised, therefore, that if there are marital debts, and one party either vanishes, dies, or takes bankruptcy, that the other party is probably going to be responsible for the payment of the marital indebtedness regardless of what the Court does in a divorce action pertaining to the assignment of such debt.
GLOSSARY OF BASIC FAMILY LAW TERMINOLOGY
Annulment – Nullifies a marriage; judgment by Court that establishes that a legal marriage never existed.
Antenuptial Agreement – A contract between two prospective spouses in contemplation of marriage usually defining the parties’ rights to property and ownership after the marriage. (Sometimes called a prenuptial agreement.)
Contempt – (Civil or Criminal) Violation of the specific terms of a court order which may subject the violator to penalties including fines, attorneys fees, even imprisonment.
Court Trustee – Attorney under contract to State of Kansas to monitor child support/maintenance payments, and to pursue those parents, whose accounts are in arrears and have outstanding amounts to be paid.
Decree – A court’s final order granting divorce or dissolution.
Deposition – Oral testimony of a party or a witness taken before trial reduced to writing via a court reporter’s transcription and duly authenticated.
Discovery – Pre-trial devices used to obtain information or facts from the opposing party including methods such as depositions, interrogatories, and requests for production of documents.
Ex Parte Order (Interlocutory Order or Temporary Order) – An interim order or judgment made by a judge which is effective from the date of filing a Petition for Divorce until the final Decree.
Expert Witness – A certified public accountant, physician, real estate appraiser, psychologist or other person with a special expertise who has knowledge pertinent to the facts or values of a case.
Guardian Ad Litem – special guardian appointed by the court to prosecute an action on behalf of a minor. The guardian ad litem represents the child’s interests.
Maintenance – (Formerly know as alimony) Spousal support.
Marital Misconduct – Spousal conduct which in some states may justify unequal financial distribution (adultery, homosexuality, drug abuse, squandering assents, physical abuse, etc.) Kansas does not normally consider marital misconduct or fault as a factor to be considered.
Master – A hired lawyer with authority to rule on discovery issues or even preside over trials. (Not normally used in Harvey County cases.)
Mediation – A qualified neutral person intervenes in a dispute to settle it (or some portion of the dispute). This is now required by the Harvey County District Court in the areas of custody and parenting time. Parenting time (formerly visitation): The time set aside for the noncustodial parent to be with the children.
Payment Center – The place to which child support and/or maintenance payments are made and from which they are disbursed.
Petition – the signed and notarized document filed with the Clerk of the Court in the county where the marital parties reside which initiates the divorce proceeding.
Petitioner – The party filing for the divorce.
Pleadings – Legal documents filed with the Clerk of the Court in the county where the parties to the marriage reside.
Q.D.R.O. – Qualified Domestic Relations Order concerning the disposition of a pension or profit sharing asset.
Q.M.C.S.O. – Qualified Medical Child Support Order provides, that upon divorce, a child shall receive continual medical coverage on the same terms as for other dependents covered under the plan.
Respondent – The party that is served with divorce papers
Separate Maintenance – Maintaining a spouse separately while the parties remain legally married. (Same procedure as a divorce.)
Separation Agreement – A written agreement signed by the parties to the marriage and notarized setting out the terms of the parties’ separation.
Settlement Agreement – A written agreement signed by both parties and usually notarized setting out the terms of the parties settlement.
Stipulation – An agreement between the parties regarding the submission of agreed upon evidence.
Valuation – The values assessed to an asset or liability of the marital estate including real estate, pension, and profit sharing plans, a personal injury case, etc.
“A lawyer’s time and advice are his stock in trade.”
Your attorney will charge fees based upon his current hourly rate. Because of the requirements of the paperwork involved and the time that is required to do even the simplest divorce action, we may be able to provide you with a minimum estimate as to the fee. However, we probably will not do so. We have discovered that any discussion regarding minimum fees raises expectations in the client that the divorce, no matter what complications might arise, will not cost more than the quoted minimum fee. In contested custody cases or cases involving the interpretation and presentation of complex financial data, the cost will be far greater than those containing simpler issues. The basic fact of the matter is that the more time that is spent, the more expensive it will be. This is certainly not to dissuade you from taking all the time you feel is required, but you should be advised that each attorney in the office is keeping time, and that time translates into money, or fees.
In some instances, we may be able to obtain an order from the Court requiring the opposing party to pay all or a portion of the fees. This has become less typical. The Court is more inclined to have each party pay their own fees.
Perhaps one of the more difficult collections that any attorney must pursue is the collection of attorneys fees from the opposing side. For that reason, and because of the additional time and expense usually involved in collecting such fees (in the event that a Court Order is obtained), the client is responsible for the total fee. In the event that the fees are collected from the other party, the client would be reimbursed whatever portion is collected, except that the client will be billed for any collection expenses over and above the normal divorce fee.
Your attorney should provide a written fee agreement or contract which would spell out the specific terms relating to the payment of a retainer, fees and costs.
A. Health and Accident Insurance.
With the rising costs of health and accident insurance, and with fringe benefits afforded by many employers, the subject of health and accident insurance is usually important in a domestic relations case, particularly where children are involved. There are many plans available for insurance coverage, many of which are included as a fringe benefit by employers. Occasionally such fringe benefits are available at no cost to either husband or wife under a family plan. In such cases the issue of insurance coverage presents very little difficulty.
More often, however, it is the case that one of the parties will be covered under an employer’s group insurance policy with coverage for the individual employee being paid by the company. Often the spouse and children are covered, but only with an additional premium paid by the employee. This presents a problem for the divorcing non-employee spouse. This office knows of only one company which continues to cover the spouse after the divorce is granted without additional premium. To our knowledge, most companies will cover the non-employee spouse after the divorce petition is filed, and up until the decree of divorce is granted, but will discontinue coverage at such time. The employee spouse, of course, may continue to cover dependent children upon his or her policy.
This makes it difficult for the unemployed spouse, or one not covered by a plan or fringe benefit through his/her employer. Health insurance is expensive, and it is not always possible to make satisfactory financial arrangements for the health coverage that one should have.
In most instances an employer offering health insurance as a fringe benefit to their employees must offer the divorcing spouse of their employee, insurance at the same group rate that they provide for their employees (plus 2% administration charge). These COBRA benefits are very important, especially if there happen to be health problems which might make obtaining insurance difficult. Such COBRA benefits are presently available for up to three years after the divorce, if the health insurance is provided for by an employer that has 20 or more employees. COBRA benefits are not available for those employers with less than 20 employees.
We would certainly suggest that the various plans available be examined so that an otherwise uninsured spouse/parent will have some protection in the event of sickness or accident.
We feel that the provision of health care is an extremely important issue, both from a protection and a financial standpoint. In the event that one of the parties is able to provide health care for minor children, such coverage not only protects the other parent from financial obligations in regard the children, but also relieves that parent from the expense involved in purchasing additional insurance for the children. It is obvious, therefore, that the parent providing insurance should be given some credit. As a matter of fact, the child support guidelines enacted by the Supreme Court do, almost automatically, afford that credit against the child support that would normally be required.
B. Life Insurance.
Life insurance is often a good tool for the protection of the residential custodian. In the event that there is existing life insurance at the time the petition is filed, we generally recommend that such life insurance be continued in a similar face value amount, with the children as beneficiaries, at least until they are 18 years of age or through college. Life insurance in this way supplements the cessation of child support in the event of the death of the supporting parent.
The ownership of any life insurance policy existing at the time of the divorce should be reviewed. If the individual is not the “owner” of a policy covering themselves, and the individual wishes to have control of that policy, it must be set out within the Decree of Divorce or the Settlement Agreement that such ownership be transferred. Once the divorce is taken, the ownership of a life insurance policy cannot be changed except by the mutual agreement of the parties.
Occasionally, by reason of the added financial strain of divorce, maintaining the same policy is not practical due to the premium costs for “whole life” policies. This difficulty may often be alleviated by converting the policy to a term policy of either decreasing or level term, so as to cover the remaining support obligation through the 18th birthday of the youngest child, or to provide level coverage through that date. Any questions that you have in this regard should be directed to your attorney, and more specifically, to your insurance agent.
Income tax considerations are often important in a divorce situation. It should be remembered by those going through a divorce, and in all other matters, that there is a significant difference between tax avoidance and tax evasion. In other words, it is not unlawful to avoid the payment of taxes by making adjustments which are legal under the existing tax code and regulations. It is unlawful not to pay taxes that are legally due (evasion). Although the Tax Code changes quite often, and occasionally domestic relations are affected, this office does its very best to keep abreast of the changes in the tax laws which affect divorces. In the event of tax intricacies or questions which we feel require additional research, we would undoubtedly seek authority from our client to consult with specialists in the field of taxation. For the most part, however, we will be equipped to answer most of your tax questions that may result from the proceedings.
The most common areas involving tax considerations are; division of property, payment of interest upon indebtedness, child support and maintenance. It should be remembered that child support is non-taxable to the recipient and non-deductible by the one paying. Division of property is almost always a non-taxable event and no taxes are paid by either party even when the non-title holder of the parties is the recipient of property which he or she did not previously own. Alimony, or maintenance, on the other hand, under most circumstances, is taxable to the one who receives it and deductible by the one who pays. Residential mortgage interest is deductible at the time of this writing, but there have been severe limitations on the deduction of other interest that is paid on other types of indebtedness. Congress, in 1997 passed legislation which have created benefits in relation to capital gains generally and specifically in the area of residential real estate sales.
This very small bit of information regarding these four areas provides the ammunition to create benefits to both parties, particularly in middle or upper income divorcing families. There are, in fact, countless applications of the tax laws that will provide benefits. We have had, for example, many clients, generally fathers, who have declared vehemently that they will pay any amount in child support, but will not pay any alimony. Perhaps this is the reason that the legislature changed the word to maintenance so that the stigma of alimony (which many men have felt was a dirty word) could be avoided. We have often had those same clients wander into our office on April 15 of the following year, asking if they can exchange some of that child support for the payment of alimony. The reason, of course, is that they have not listened to what has been related to them, and they are not able to deduct any amount designated alimony. They are, in effect, paying taxes on income that they have paid out in child support, whereas the recipient is paying no taxes at all upon that extra income. The payers of child support often feel that this is somewhat unfair, particularly in the cases where the recipient of such support is either unemployed, or has very little other income, so that they may pay no taxes at all. We often suggest that an adjustment be made so that some of the “support” be paid in the form of maintenance so that the payor will have some benefits by way of the tax deduction. By doing so, it is sometimes the case, through careful consideration of the various factors involved, that the payor of support may actually pay more money and cost him less after taxes.
There are several other factors to consider in regard taxation. At the present time, the Internal Revenue Code provides that the person with residential custody is entitled to the tax exemption for the dependent or dependents in his or her custody, unless it can be shown that the other parent is supplying over 50% of the support for the child or children. (The Support Guidelines presume a sharing of the exemption.) Likewise, in the event of smaller children, there is the consideration of child care expenses, which are presently deductible, and the earned income credit. There is also the consideration of the federal Child Credit, whereby the parent with the exemption for the children is also entitled to the Child Credit. That credit is currently $500.00 per child under the age of 17 during the individual tax year. The child must be 16 years or younger on December 31, of the tax year, to qualify for this tax credit. One must have the exemption to claim the child credit.
We will analyze each case on an individual basis in regard tax considerations. It may well be that we cannot make use of the tax laws because of the particular facts of the case, or by reason of the failure of cooperation on the part of one party or the other. Very often, that cooperation is essential to make full use of the applicable tax law.
We would recommend that all divorces be settled and that none go to trial. The reasons for this recommendation are both financial and emotional. Almost all divorce attorneys bill upon an hourly rate. It is expensive enough to have an attorney working on your case for a half hour, two hours, or even three hours per day. In a trial situation, your attorney is working continuously, both in preparation and Court time. In contested custody cases, where often psychologists, counselors, or other expert witnesses are required, there is an additional expenditure for their time, both in and out of the courtroom. In addition, there is always a risk that the Judge may not rule in your favor, even if you have the better case.
Contrary to popular belief, a divorce trial is a complicated and major undertaking. Unlike most other lawsuits which revolve around one issue, a divorce case may have many, including all of the ones discussed in this packet and perhaps several more. It has, unfortunately, been the case that a large percentage of practicing attorneys and judges have treated divorces rather lightly and do not recognize the emotional and financial impact that a divorce has on an entire family. It is often considered newsworthy when a personal injury victim, for example, receives a jury verdict for $90,000.00 for his injuries. It is an every day occurrence, however, that the non-custodial parent of a child is ordered to pay monthly support for his child or children. A child support award of $500.00 per month for a child who is 3 years old at the time of the divorce amounts to $90,000.00 by the time that child reaches 18 years. We would suspect that when all of the financial considerations are taken into account in divorce situations, that the payment of money or exchange of assets is far greater in divorce cases than most other civil cases combined.
When these financial factors are coupled with the emotional turmoil that is normally present in a divorce situation, the most positive approach is settlement. In some cases, from a financial standpoint, settlement is the only way to obtain the best results for both or either of the parties. It is our experience that settlement is the only way to obtain a good result emotionally for both of the parties. It is true that a trial can sometimes provide instant gratification for vindictiveness or revenge, but those feelings are most often replaced by bitterness, anger, frustration and unhappiness, which follow both of the parties, and often their children, for the rest of their lives.
In some cases, settlement is the only way by which to insure the best tax benefits to both of the parties by reason of the cooperation that such techniques usually require.
The cooperation that is demanded in the issues of custody and parenting time, is best obtained through the settlement of the case. It is often very difficult to obtain the cooperation of your former spouse in the area of custody and parenting time if he or she feels that they have been unjustly treated either by you or by the Courts. Very often it is the case that after a divorce battle, whether it be upon the issue of children, or upon financial matters, the “wronged party” will spend a lifetime taking their revenge. Everybody suffers.
We recognize that every divorce cannot be settled, generally because of the personalities involved. We would request of our clients, however, that they make every effort to resolve the issues, to mediate, to make compromises where they can and to recognize the rights of the other party involved, along with the rights of the children. The legislature, in its wisdom, has provided a longer waiting period in divorce cases than any other civil matter. One of the primary reasons for the sixty day waiting period is so that the parties may resolve some of the natural emotional problems associated with divorce and begin to think and act rationally. One must go through the emotional process, and it is our hope that rational thought will replace the emotional reaction so that the case may be resolved by settlement. As previously stated, the Court has given greater impetus to settle cases by requiring mediation in contested cases.
The most sure method of settlement is through a Settlement Agreement. This can be a separate document which is incorporated into separate Decree of Divorce, or may be the Decree of Divorce itself signed by both of the parties. The Settlement Agreement is a contract between the parties resolving the issues of the divorce. Once it is approved and adopted by the Court, it cannot be changed, except by agreement of the parties on issues other than those issues involving the children such as custody, parenting time and support. Issues involving custody, parenting time and support remain within the jurisdiction of the Court. All issues involving the children may be modified if there is demonstrated a significant change in circumstance and that the best interests of the children would be served by a modification. We have found that an agreement or contract provides a better atmosphere for the cooperation that is necessary after the divorce when children are involved. We suspect it is by reason of the fact that it is the agreement of the parties themselves rather than the imposition or forcing of another person’s will, such as a Judge, upon the parties. In cases involving successful mediation the agreement may be called a memorandum of understanding.
If the parties are unable to resolve the issues presented, we will probably recommend mediation by another mediation trained attorney, who will take a neutral position and assist in the resolution. This is different than custody or parenting time mediation, but utilizes the same techniques to arrive at agreement. Sometimes, we resort to a settlement conference, which is similar to mediator/lawyer mediation, but involves a judge not assigned to the case as the mediator.
The trial of a divorce case is much like the trial of any other case except for the increased number of issues involved and the emotional level of the parties. The case is tried in front of a Judge and not to a jury. Evidence may be presented both through testimony and written documentation.
It is often the case that there are only two witnesses at a divorce trial, that being the petitioner and the respondent. In custody cases, it is often the case that other family members of both the petitioner and respondent will be called as witnesses, and perhaps friends, doctors, psychologists, psychiatrists, social workers, or others who may be called upon to provide information or expertise to the Court. In all contested cases, the Court will require, prior to the trial of a matter, that a custody investigation be performed by Court Services or by some other agency for purposes of making recommendations to the Court. More often than not, and in fact almost always, the recommendations of any agency appointed by the Court are followed.
In cases involving financial matters, accountants, CPA’s, appraisers, or even tax attorneys are sometimes employed to give testimony or prepare reports that are submitted to the Court.
Unfortunately, under our trial system (advocacy), it often occurs that it is not the best case that wins, but the best lawyer or the best witness or witnesses. A psychiatrist or psychologist with a string of credentials generally makes a better impression and carries more weight than the next door neighbor on the issue of custody. A real estate appraiser with years of experience is likely to make a better impression than the part-time real estate agent from down the street. Any trial is a gamble. Most other types of trials, such as criminal, personal injury, or even contract cases, involve facts that occurred over a very brief period of time, sometimes as little as a few seconds, or minutes, or hours. Most divorce cases, however, involve factual situations that have occurred over a period of years. It is practically impossible to present all of the facts to the Judge in the brief period of time allotted. In many cases, there are no real “facts”, but only feelings, and again, it is almost impossible to convey those feelings to a third party. We may be able to demonstrate facts and make the Judge understand. Feelings, however, are generally indescribable.
In a trial, the petitioner presents his or her evidence first. This is done through the presentation of testimony, from the witness stand, from the petitioner and any other witnesses that he/she may call upon. The petitioner’s case is presented by the asking of questions by the petitioner’s attorney and the petitioner’s witnesses’ answers. At the time that the petitioner’s attorney is finished with his questions of each witness, the respondent’s attorney is permitted to cross examine the witness on the questions and answers that were presented in the direct testimony. Each attorney is then permitted to ask additional questions based upon the testimony previously given. At the close of the petitioner’s case, the respondent is then given the same opportunity under the same rules. After the presentation of evidence, whether it be testimony or documentation, the attorneys generally present a summing up, or closing argument, to the Court, incorporating only the evidence that has been presented. After the presentation of all evidence and argument, the Court, except under unusual circumstances, will make its decision.
The decision by the District Court Judge is, for all practical purposes, the final decision in the matter. Each of the parties has the right of appeal to the Court of Appeals, and ultimately to the Supreme Court, but it is very rare indeed that the District Court’s judgement is overturned. The Appellate Courts (Court of Appeals and Supreme Court) can overrule a District Court in cases where the Judge has ruled contrary to the law, where the District Court Judge has abused his discretion, or where the facts plainly do not support the ruling. In divorce cases, however, the District Court Judge has such wide discretion and latitude, that they are very seldom overturned or reversed. This fact, along with the fact that appeals are extremely expensive, requiring a great deal of the attorney’s time, make appeals very unappealing.
You may feel after having read this section, that we do not encourage the trial of divorce cases. You are correct. You and your attorney should do everything to avoid it. It is a risky gamble that normally need not be taken. The trial places the fate of both parties and their children into the hands of a stranger who does not know you, cannot feel your feelings, and cannot possibly share all of the knowledge that you possess in your two hour, two day, or even two week presentation. It is our feeling that the parties should be in control of their lives, not some stranger in a black robe who may be basing a decision upon incomplete, erroneous or even misrepresented testimony or evidence.
POST TRIAL MATTERS
Except under very special circumstances, the Court cannot change the decree of divorce in regard to the division of property, or indebtedness. There may be modifications, however, of the decree of divorce in regard to matters pertaining to children, such as custody, parenting time and support. Decisions in regard to these matters may be modified in the event of a significant change in circumstance. A child reaching the age of 18 years (or the end of his high school years, whichever is later), for example, will modify the Court order regarding support, unless there was a settlement agreement, or contract, between the parties where support was agreed to be paid beyond the age of 18 years for a college education. The support order, for example, could be modified in the event that the payer of support became unemployed and made no income. The custody decree could be modified if a child, who is of sufficient age (usually 12 to 14 years, or older), wished to live with the other parent. A parenting time order could be modified in the event that one parent moved from the area so as to make impossible daily or weekly visitation. There are, of course, many other examples which would constitute a significant change of circumstances.
Such modifications are accomplished by filing a motion, or request with the Court, that the previous order be modified to adapt to the new and changed circumstances. A modification will usually not be granted where there has not been a significant change of circumstance.
It is, therefore, our advice that all issues be resolved as completely as possible at the time of the divorce, and that in the event that contingencies are anticipated, that provision be made for those possibilities in the original divorce decree.
A. Collection of Judgements, Child Support and Maintenance.
Child support and maintenance are continuing judgements against the person who is ordered to pay the support and in favor of the one who is to receive it. Such judgements and decisions are not subject to bankruptcy, and cannot be discharged through a bankruptcy proceeding. Judgements for money other than for maintenance or child support are dischargeable in bankruptcy, which means that the person that is ordered to pay money judgement, other than support, may avoid that payment by declaring bankruptcy. This is true whether the judgement is for actual cash money, or for other property, if such property is included in the bankruptcy.
The Court now requires that all payments of child support and maintenance be paid through the District Court Trustee, via the Kansas Payment Center. The District Court Trustee is responsible for the enforcement of the child support payments and will generally file an income withholding order which will require the employer of the payor of support to deduct the appropriate payment directly from the wages of their employee. It is the Trustee’s job to see to it that support is paid and to take necessary action if it is not. The Trustee is paid by the county and is funded by deducting up to 5% from the support collected. Harvey County at this time, deducts 2% from the support collected. Failure to cooperate with the Trustee can result in serious penalties. Failure to pay child support can result ultimately in criminal charges and the prospect of jail or prison.
We are often asked, in cases where there has been a re-marriage after divorce, whether an adoption might be possible by the new spouse and stepparent. Such an adoption is not possible without the consent of both natural parents, unless there has been a failure by the non-custodial parent to assume the parental obligations for a period of two years or more. Such parental obligations are fulfilled if the non-custodial parent has paid substantial support, or has had substantial contact with the child/children. Incidental contact is not considered to be enough to overcome a non-consensual adoption. We have had, therefore, many clients who have elected to permit child support to go uncollected and to not insist upon visitation so that a non-consensual adoption might take place.
This is not to say that we encourage or advise any client to proceed under this plan, except under very special circumstances. We feel that both parents of the children should have every opportunity to continue in their parental roles.
C. Subsequent Remarriage.
It is usually the case that our divorce clients become remarried. There is no longer a time limitation upon remarriage after a divorce, although any remarriage occurring within 30 days after the entry of a decree of divorce may be voidable in the event of an appeal (except in such cases as the parties by agreement have waived the 30 day appeal period).
We would suggest to our clients, however, that they take a reasonable amount of time in which to consider remarriage. It is, of course, often the case that a divorcing party may have a person with whom they have become intimately or romantically involved prior to the divorce, and even file or complete the divorce with the anticipation of immediate remarriage. Such plans very often end in disappointment, if not disaster. It is often discovered that the new relationship was used merely to escape what was believed to be a bad marriage, and that once the escape is made, the bloom quickly fades. It is our belief that any and all new relationships should be permitted the opportunity to flower under normal circumstances without the pressure and anticipation of an immediate decision. When there are children involved, they too require time to become accustomed to the new parental roles. The addition of a new (step) parent sometimes is very difficult for everyone.
It is often frightening and demoralizing to enter the single world after having been married for any extended period of time. You may feel that married couples whom you have known, or with whom you have been associated, will avoid you, or you may find that those same couples are attempting to mate you with a new person. All of such fears, reactions and behaviors have a logical and reasonable explanation and are absolutely normal. We would hope that our clients would permit themselves the time and opportunity to better evaluate their next contract of marriage.
These observations have been given to you in an effort to answer some of the general and usual questions that are asked, and to help you understand the process of a divorce case. Although there are similarities, each case is different because people are different. The comments and observations herein are the observations, opinions and interpretations of one attorney. By reason of the fact that laws change and interpretations are varied, it is suggested that your own attorney should be consulted regarding any changes in the law or application by the courts. Your attorney will address your specific questions about your particular circumstances. There is nothing we can do to make the experience of divorce a pleasant one. We do sincerely hope, however, that our service will satisfy you and that you will quickly recover from the experience. It is possible. It is our goal for you to attain that recovery as quickly as you wish.