Your Divorce is probably the most significant thing to happen to you, if not in your life, and then certainly, it is one of your life's major events. The anxiety created by this is magnified if you have children. This is an extremely emotional time for everyone. Generally, you are better off if you can reach a settlement in your divorce case, because you have some control over how things are handled, and you don't leave it to a Judge, who can never know everything you know about your case.
The Judge is an attorney who has been appointed, or in some areas, elected. He or she may have experience handling a divorce as an attorney, but the Judge is just as likely to not have that background. If you reach the point that a Judge is hearing your case, it means that you and your spouse could not agree on some or all of the issues in your Divorce. Before you get to this point, you should know how the Judge will look at your case, and what he or she is allowed by law to decide. Hopefully, this will help you decide how you want to resolve your case.
Generally:
The Judge is NOT emotionally wrapped up in your case. He or she is a decision maker to decide some or all of the issues in your case. He or She will make these same decisions, several hundred times a year. He or she will hear 20 to 50 contested Divorces a year. The Judge cannot afford to be emotional. He or she has to make major decisions about the lives of you, your spouse, your children, and perhaps other people. The Judge must do this without being invested emotionally. Also, the Judge probably does not know you, your spouse, or your children, and therefore does not have the basis to be emotionally invested in your case. The Judge simply will make life changing decisions about the issues discussed below. The framework for making those decisions is found in State Statutes. Specifically, K.S.A. 60-1610 is the general statute that guides the judge in his or her decision making in most areas of your divorce.
Dissolution:
The first decision the Judge must make in your case is whether to grant a divorce in the first place. The Court will grant a divorce which dissolves the martial relationship if:
"The district court shall grant a decree of divorce or separate maintenance for any of the following grounds: (1) Incompatibility; (2) failure to perform a material marital duty or obligation; or (3) incompatibility by reason of mental illness or mental incapacity of one or both spouses." K.S.A. 60-1601.
The most common basis for a divorce is "incompatibility." This requires the testimony of one or both spouses about the grounds for divorce. One or both must testify that they are incompatible and there is no reasonable likelihood that the marriage can be saved. After hearing the testimony, the Court will make an order dissolving the marriage.
Property Division:
Under law the Court will consider many factors in the division of property. Generally, the Court must make a finding and consider "such factors as the court considers necessary to make a just and reasonable division of property." The Court will look at ALL of the property and debts of the parties of any kind, no matter how it is owned. After looking at all of the property and debt, the Court will make a division that is just and reasonable. Among the things the Court can do in this analysis is grant property to one of the parties, split the property, or order a sale of the property.
Child Custody:
"The court shall determine custody or residency of a child in accordance with the best interests of the child."
The law is clear that there shall be no presumption that it is in the best interests of any infant or young child to give custody or residency to the mother.
Types of legal custodial arrangements.
The Court can order one of two types of custody, in the order of preference:
(A) Joint legal custody. The court may order the joint legal custody of a child with both parties. In that event, the parties shall have equal rights to make decisions in the best interests of the child. The Court will start with the presumption that there should be joint legal custody.
(B) Sole legal custody. The court may order the sole legal custody of a child with one of the parties when the court finds that it is not in the best interests of the child that both of the parties have equal rights to make decisions pertaining to the child. If the court does not order joint legal custody, the court shall include on the record specific findings of fact upon which the order for sole legal custody is based. The award of sole legal custody to one parent shall not deprive the other parent of access to information regarding the child unless the court shall so order, stating the reasons for that determination. Sole legal custody is usually granted when one party demonstrates an inability to cooperate in raising their children with the other spouse. For example, the one party finds every reason to deny visitation to the other party.
Factors that the Court will use in Determining Custody and Parenting Time:
In determining the issue of child custody, residency and parenting time, the court shall consider all relevant factors, including but not limited to:
1. 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;
2. The desires of the child's parents as to custody or residency;
3. The desires of the child as to the child's custody or residency;
4. The interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child's best interests;
5. the child's adjustment to the child's home, school and community;
6. 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;
7. evidence of spousal abuse;
8. whether a parent is subject to the registration requirements of the Kansas offender registration act, K.S.A. 22-4901, et seq., and amendments thereto, or any similar act in any other state, or under military or federal law;
9. whether a parent has been convicted of abuse of a child, K.S.A. 21-3609, and amendments thereto;
10. whether a parent is residing with an individual who is subject to registration requirements of the Kansas offender registration act, K.S.A. 22-4901, et seq., and amendments thereto, or any similar act in any other state, or under military or federal law; and
11. whether a parent is residing with an individual who has been convicted of abuse of a child, K.S.A. 21-3609, and amendments thereto.
Parenting Time:
Once custody is decided then the Court will determine parenting time. This is commonly known as Visitation. It is when the kids will be with which parent on a regular basis, holidays, and other special occasions. The Order of the Court is what the parties will rely on if they cannot agree to parenting time. If you and your ex-spouse can agree on parenting time that is different than the Court's order, even after the Court issues its order, then you can agree to that variation. However, if you disagree at some point, then the Court order is what you have to go back to until you get a different order from the Court.
The Court must make an order that the Court believes is in the best interest of the children. The Court will consider many of the same factors as the Court considered in the custody determination, and will consider the Proposed Parenting Plans submitted by the parties. A Parenting Plan is submitted by each parent as their plan for what is best for their children relating to all custody and visitation issues. It addresses legal custody, visitation, payment of health insurance, payment of unpaid medical and dental bills, who shall receive the tax exemption for the children, holiday and summer visitation, and possibly other issues.
Child Support:
Child Support is determined by the Court. Kansas and Missouri have adopted Child Support Guidelines. These are formulas that determine child support based on the father's income for child support purposes, the mother's income for child support purposes, the age of the children, the number of children, health insurance cost for the children, work related child care costs for the children, and the amount of parenting time that the non-residential parent. The Court must adopt the guideline amount unless the Court finds that it is in the best interest of the children to deviate. Often, if the parents agree, the Court will deviate.
http://www.kscourts.org/Rules-procedures-forms/Child-support-guidelines/2010-Guidelines-Final.pdf
Spousal Maintenance:
The Court can order Spousal Maintenance (Alimony) in an amount the court finds to be fair, just and equitable under all of the circumstances. In Kansas the Court can order maintenance for up to 121 months. However, the Court can reserve the right to reinstate maintenance beyond 121 months.
The Court may also reserve the right to have the maintenance be modifiable or terminable, but only if the Court makes that reservation in the Divorce Decree. If the Court Orders maintenance, it will likely be based on a percentage of the differences in income between the two parties. For example, if the husband makes $100,000.00 per year and the Wife makes $50,000.00 per year, and the Court orders maintenance in the amount of 20% of the difference between the parties, then the monthly maintenance will be $833.00 per month (($100,000.00 - $50,000.00) X 20%) / 12 = $833.00.
Maintenance also affects child support calculations in that it reduces the income for child support purposes for the person paying child support and increases income for child support purposes for the person receiving maintenance.
Guidelines:
Judges are often also guided by local "Family Law Guidelines." These are adopted by the local courts to help family law attorneys and parties to understand how the local court will address the specific issues in your case. The guidelines are compiled by a committee that includes the local attorneys and judges. These Guidelines address issues that are more specific than those set out in the statutes and local rules, but they are important information for you because it is how the Court will look at the issues specific to your case. For example, it guides the Court in how to value businesses, and how to divide such things as Country Club Memberships.
Shawnee County Family Law Guidelines:
http://www.shawneecourt.org/forms/guidelines030106.pdf
Johnson County Family Law Guidelines:
http://www.jocobar.org/associations/10019/files/guidelines2005.pdf
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