A. Introduction:
The first thing you need to know about a Divorce or Dissolution is that in filing of a Divorce or Dissolution the person filing the Divorce or Petition is filing a civil lawsuit, similar to any other lawsuit like a personal injury or contract law suit. The rules are basically the same as any other civil lawsuit. There are some statutes or laws that pertain to a Divorce or Dissolution that don't apply in other cases. With this as a frame of reference, this is an overview of Divorce Law.
B. The Parties. The person who starts the divorce proceeding by filing the petition is called the Petitioner. The other person is called the Respondent.
C. Some of the Documents necessary for a Divorce:
1. THE PETITION -
The first document filed in a Divorce or Dissolution case is the Petition. This is the document that begins the legal process of Divorce or Dissolution. It is legal document, just like any other lawsuit that sets forth the allegations or claims of the person filing the divorce concerning what they want from the divorce. The most common claims are that the filing party wants a divorce; they want to divide all marital property; they want to establish custody, parenting time (visitation), and child support for the children; they want spousal maintenance (alimony); and they want attorney's fees if those issues are applicable to your case.
Once the Petition is filed, the opposing party (just as in any other lawsuit) is entitled to be notified of the lawsuit that has been filed against them asking for a divorce or dissolution. Under the American system of law, a person has a right to defend themselves against any lawsuit. As a result, the petition must be delivered (or "Served") on the opposing party by either a private process server (someone who is authorized by the court to serve papers) or the sheriff. This is the process of notifying a Respondent that they have been sued for divorce. A person can be served in three ways: 1) be served by the Sheriff, 2) be served by a special process server or 3) your spouse signs an "Entry of Appearance". If you are asked to sign an "Entry of Appearance," you should realize that this starts the clock running for you to answer the petition. Generally, you have 20 days to answer.
2. THE DOMESTIC RELATIONS AFFIDAVIT -
This document gives the court a look at your finances, assets and liabilities so that it can issue a Temporary Order. It should be as accurate and current as possible since you are signing it under oath. It is very important that you provide ALL information requested which pertains to the Domestic Relations Affidavit.
3. TEMPORARY ORDERS
This document divides the property, determines custody, parenting time, child support, spousal maintenance and support, and restraining actions ON A TEMPORARY BASIS from the time of filing of the divorce until the case is resolved. The parties must obey the Temporary Order unless it is changed by the court.
If the Court granted Ex parte Temporary Orders, you may want to have those orders modified because those orders are issued to one party without input from the other party. In most situations, the Court should hear from both sides before make a ruling or issuing Orders. In divorce cases, the Court can grant Ex parte Temporary Orders. Exparte means "by one side," and is a situation where one party, but not the adversary appears before the judge to obtain orders. Many times, the party obtaining the Ex parte Orders will put things in the best light for them, and you may want to review those Orders with your attorney to see if you should try to modify them by going back to Court.
Temporary Orders usually include orders preventing the parties from molesting or harassing each other or adversely influencing the children in any manner. This same order can provide that one spouse shall have temporary possession of the home, together with the household goods and furnishings, and the other spouse shall vacate the premises. Both parties will be restrained from changing any beneficiaries, insurance policies, or utilities, etc., during the pendency of the action. You should familiarize yourself with the contents of the Temporary Order. Do not disobey the court order, as it may prejudice your case. If your spouse disobeys the order, call your attorney to report the violation. This may require additional legal action. You should keep an ongoing diary of violations, noting the date, time and place for use at trial.
4. ANSWER AND COUNTER PETITION
If you have already been sued by your spouse for divorce or separate maintenance, you should file an "Answer" and, if the facts warrant it, you should then prepare a "Counter-Petition" setting forth your facts and your grounds for divorce or separate maintenance. If you file the petition your spouse can, if he or she desires, file an "Answer" and/or "Counter-Petition." The reason you should file an
The Answer is just what it sounds like. You respond to the claims your spouse made in the Petition. Your answer should be a simple response such as "admit" or "deny" the claims your spouse makes. There are times when you might want to make more of a response and you should discuss that with your attorney. You generally have 20 days to file your answer.
You usually want to file a Counter-petition at the same time you file your Answer. In the Counter-petition you usually ask the Court to grant you similar claims to what your spouse asked for in the original petition. The reason you do this is so the Court has jurisdiction to hear the divorce or dissolution if your spouse decides to dismiss the case. If you do not have a counter-petition and your spouse dismisses his or her case, then you will not have a chance to present your case, and you will have to file a new case which costs money and time.
D. Leading up to Trial.
1. TIME FOR TRIAL. Once your case is filed, it will NOT be heard by the court for at least 60 days after the filing of the petition, unless there is some emergency. It is not very common to obtain an emergency divorce.
If your case is contested, it will not be heard by the court for several weeks or months after the 60 days have elapsed, because it must come up for hearing on the court docket. There are many other divorce cases ahead of your case. The more complicated and contested you case is, the longer it will take to get to court.
2. What happens during the time you are waiting for a hearing?
The time between the filing of the petition and the final hearing is meant for two things:
Discovery
Negotiation
a. Discovery: a legal term which means that you are discovering the facts of the other parties case. Some jurisdictions have standard discovery that everyone must file. Other times, you will have to decide what you want from the other side. During discovery, you are trying to find out what information they have that is important to your case, and what they think the issues are in the case. You will also be asked to provide information to the other side. You should expect to provide information about your income, assets, retirements, cars, business interests, personal property holdings, what your attitude is concerning custody, child support, maintenance, and all other information. Without this information, your attorney is unable to give you adequate service.
b. Negotiation: During this waiting period, there will be negotiations between the attorneys concerning your case. You should provide your attorney with all information requested of you in a timely manner. This is a good time to begin to begin thinking seriously about how you want things to be divided. In order to develop an adequate settlement proposal, your attorney MUST be provided with values of all assets and a statement of all liabilities, dated both as of the date of marriage and as of the date of separation. Therefore, once the petition has been filed, you will need to be gathering these statements and providing them to your attorney as soon as you possibly can. If these documents are not provided by you, the attorney will need to obtain this information by way of discovery, and this will cause your fees to increase.
Please note that it is likely that not much is happening in your case during the waiting period, and in that event, you should NOT expect to receive calls from your attorney. There are also times when you may have asked questions of the legal assistant, and she is trying to obtain an answer from the attorney. The attorney keeps a VERY busy schedule, and we appreciate your patience while you allow us to take the time to obtain the answer for you and respond to your question. Sometimes this may take a few days. We try to keep your attorney fees down, and it would not serve your interests if we had to charge you for calling on a regular basis to let you know that nothing is going on or that we do not have an answer to your question yet. Therefore, you should NOT expect to receive regular telephone calls or reports as to the status of your case when there is nothing to report, and if you call our office on a regular basis, you need to expect a charge for the phone call, whether anything is happening or not. If you have asked a question and did not get an immediate response, please wait a reasonable amount of time (usually a few days) before calling again. This way your bill will not be exorbitant.
3. Alternative Dispute Resolution or Conciliation. The court may require mediation, case management, or even limited case management of some or all of the issues in the divorce. This should save court and attorney time. For example, as a general rule, the court will order alternative dispute resolution, mediation or conciliation concerning child custody or parenting time issues prior to hearing any motions pertaining to these issues. If you have custody or parenting time issues, you should be prepared to be involved in some form of alternative dispute resolution, mediation or conciliation. There is a costs to this as well.
E. Issues that the Court will Decide:
a. Dissolving the Marriage: the marriage to your spouse created a separated legal and moral entity. You have certain rights and obligations as a result of being married. When a divorce is filed the Court will determine several issues, whether by agreement or by trial if the parties cannot agree. The first issue the court will decide is whether the marriage should be dissolved. As long as one or both parties testifies that there are irreconcilable differences and the marriage is irretrievably broken the Court will grant a dissolution or divorce.
b. Property Division: when you marry and then divorce, absent a premarital agreement, you create a "marital estate." The Court will want to know what all of your assets and all of your debts and your income. The marital estate is culmination of you assets and debts. The Court will make a fair, just and equitable division of your marital estate. That does not mean a 50/50 split because the Court has to look at the overall situation in determining how to divide things.
c. Custody and Parenting Time: There are two parts to custody. First you have the decision-making process for your child. Kansas law states that joint custody will be ordered unless exceptional conditions exist. The other part of custody is the physical or actual parenting time with each parent. Generally this results in one parent being named the residential custodian and the other being named the noncustodial parent with parenting time. Quite often the parenting time is every other weekend and one to two evenings per week. However, this varies widely for each case. Some parents prefer a shared parenting time arrangement, wherein each of the parents receives "equal or nearly equal" blocks of time with the child. If there is a custody battle over who is going to be the residential parent, the court has but one rule to follow, which is '"what is in the best interests of the child." Therefore, the court will not regard what is paid or who pays in determining custody. The Court will look at all the facts and give custody to the parent who will best promote the child's welfare. Custody and parenting time privileges can be adjusted AT ANY FUTURE TIME by the court.
d. Child Support: Child Support Guidelines determine the amount of Child Support to be paid. The Guidelines are created by a committee and they have done economic and practical analysis to determine the appropriate guideline amount. While these are "guidelines," the Court generally has to follow these guidelines unless it finds a basis to deviate from the guidelines. Child Support is a function of the incomes of the parties, the relative incomes of the parties, the age and number of children that will be receiving child support, and health insurance costs and work related child care costs. There are other issues that affect child support, including the type of custody that is ordered in the case. The amount you presently receive or are ordered to pay as child support can be modified at any future time by the court, should your circumstances change, which would entitle you or your spouse to an increase or decrease in the amount of support paid. This rule is also true with regard to the custody of the minor children and with regard to parenting time privileges. The court has jurisdiction of custody and parenting time of the children until they are 18. Kansas law now allows child support to continue to June 30 of the school year in which the child reaches 18, thereby extending the child support obligation past the age of 18. Further, Kansas law allows the custodial parent to file a motion to extend child support through the school year during which the child reaches the age of 19 so long as the child is a bona fide high school student and the parents jointly participated in or knowingly acquiesced in the decision which delayed the graduation of the child from high school.
e. Spousal Maintenance (Alimony): This is a matter solely in the discretion of the court after hearing all of the facts, and because people and judges differ, so will the amount of support, alimony and attorney fees differ. There are factors under the statutes that the Court must find in determining how much, if any, spousal maintenance should be paid from one spouse to the other. The most important factor is the income disparity between the parties.
F. Trial. There are two types of cases: uncontested and contested.
a. Uncontested Cases: If it is uncontested, your case will be heard by the court and no other person will be required to be present except your attorney. An uncontested divorce will involve fewer, if any, court appearances depending on the particular judge.
b. Contested Cases: Your case is contested if you and your spouse dispute any or all of the issues in the case. At this point, the case is tried like any other lawsuit before the judge except that there is no jury. Contested cases take much longer to come before the court and it will be much more costly to you. You will likely be required to deposit additional funds into the firm's trust account to cover the cost of future trial expenses.
c. Evidence in Contested Cases: You need to let your attorney know in writing what you want to accomplish in the Divorce or Dissolution. How do you think the property should be divided? What do you think is in the best interest of the children concerning custody, parenting time? Do you think you should get spousal maintenance?
A diary is EXTREMELY helpful in contested custody cases. Please provide your attorney with a list of witnesses, giving their names, addresses and phone numbers, who have seen you care for the children. Additionally, addresses and phone numbers for teachers, physicians, ministers, etc., are needed. Any checkbooks, canceled checks, pay-stubs, income tax returns and loan applications may be helpful in contested property and support cases.
Expert witnesses may be necessary for your case. Experts are commonly called in Divorce or Dissolution cases for issues concerning the kids, asset valuation and business valuation. This will also require additional funds that will drastically increase the cost to you.
At the trial of your Divorce or Dissolution you will be called as a witness to testify about the claims or allegations in the Petition or Counter-petition. In addition, there may be other witnesses that establish your case. You should have an intense discussion with your attorney the witnesses you think are necessary and the witnesses your attorney thinks are necessary.
G. AFTER THE DIVORCE.
a. Finalizing the Case. After hearing the evidence in a contested case, a decree will be rendered by the judge granting the divorce and adjudicating the division of property, alimony, child support, attorneys fees and other matters. The judge will order one of the attorneys to prepare the final decree and it will be presented to the other attorney for approval before it can be filed with the court. Based upon each attorney's understanding of the judge's ruling, it may take some time before the attorneys are able to agree on final paperwork. Sometimes the attorneys are not able to reach an agreement and the matter must be taken to court again to clarify the judge's ruling. While we realize it is natural to be anxious about getting your paperwork finalized, it is obviously important to have the paperwork drafted accurately in accordance with the judge's ruling, and therefore we must request your patience during this final process. The final papers in an uncontested divorce or a divorce in which the parties have reached an agreement will be prepared more quickly.
b. Remarriage. When the divorce is granted, the law provides that unless you sign an agreement otherwise, you cannot marry any person other than your present spouse for 30 days unless the time is waived for appeal. Any marriage that you would enter into before that time is void.
c. Fees. Attorney fees vary, depending on the complexity of each case. Unfortunately there is no way for our office to determine how much a divorce will ultimately cost, as a lot of it will depend on your spouse's actions and how badly he or she wishes to contest the issues. The fee which is quoted is usually a minimum retainer fee, and the terms of our agreement with you are spelled out in detail in our engagement letter, which is signed by both you and your attorney. Your attorney may request an additional retainer fee at any time for expected future expenses. Other costs for expert witnesses, appraisers, depositions, copying, long distance telephone calls and travel are usually in addition to the attorney fees.
d. Post-Divorce Counseling. Remember that a divorce causes serious hardship emotionally, physically, and economically to both you and your spouse. Therefore, you should approach the matter as maturely and realistically as possible. You may want to consider post-divorce counseling to help you adjust to your new role.
e. Self Help. Orders may be entered by the court which you do not like or with which you disagree, however, until they are modified or changed, THEY ARE STILL THE LAW and you are not entitled to take the law into your own hands. In other words, you cannot resort to "helping yourself." For example, if your spouse fails to pay or is slow with support, you cannot arbitrarily refuse to allow him or her to see the children. If you have trouble seeing the children, you cannot decide for yourself that you won't pay the support. Another example would be incurring bills to your spouse's account without his or her knowledge because your spouse failed in some respect with the court's order on another payment, or stopping support on one child when that child starts to work. This type of action is wrong and can seriously hurt your case. If your spouse fails to do what the court has ordered, contact your attorney and he or she will take necessary legal steps to correct the situation. Do not try to correct it yourself by your own action.
f. Leaving the State. Unless you are restrained from leaving the state in the Temporary Order, you can leave the state on a temporary basis. If you intend to permanently change your residency after filing, you should contact your attorney first. The law now requires that if you have custody of a child and you are leaving the state permanently or for more than 90 days, you must give the noncustodial spouse 21 days written notice of your intent to move. Failure to give the required notice may result in a change of custody, plus costs and attorney fees. There are specific statutory requirements, so be sure to talk to your attorney if you intend to leave the state for more than 90 days.
