kansasdivorceblog

Kansas Supreme Court Approves Co-Parenting Agreement in Same-Sex Case

mcraelawoffice — Thu, 07 Mar 2013 21:07:17 +0000

On February 22, 2013, the Kansas Supreme Court granted co-parenting rights to each parent in a same-sex relationship. The children were conceived by artificial insemination and only one of the women was a biological parent. Based on the facts of the case, the Court determined it was in the best interests of the children to have both parents and approved a co-parenting arrangement. This decision surprised many commentators because Kansas is not known for breaking new legal ground. The Court itself, however, went out of its way to apply existing case law and statutes to the facts rather than declaring a new social policy.
The Court focused on two key factors in making its decision. First, the sperm donor was not a parent under Kansas law. (Under certain circumstances Kansas law provides that sperm donors are not considered parents, do not have parental rights and are not obligated to provide child support.) Second, the parties previously signed a co-parenting agreement covering how they would provide for the children if the relationship ended.
The Court applied the Kansas Parentage Act and found that the provision for who is a presumed father can be applied to determining a presumed mother as well. One factor is the potential parent is obligated to support the child under a written promise to do so. A second factor is the parent notoriously and in writing recognizes paternity (or, in this case, maternity) of the child. Because the parties signed a written co-parenting agreement the Court concluded the non-biological mother had notoriously and in writing recognized maternity.
Part of the biological mother’s argument was that this presumed mother status could not trump her constitutional rights as the biological mother. However, the Court noted there are cases where a non-biological parent is nonetheless deemed a father under the Kansas Parentage Act. In fact, it is possible to have multiple presumed fathers under the Parentage Act. The Court expanded this notion to say there can be a presumed mother and a biological mother as well.
The finding of the Court is rather limited. If the biological father had parenting rights under Kansas statutes it is not clear the Court would have reached the same conclusion. Further, without the written co-parenting agreement the Court’s decision may have been different. But, the case is not limited to same-sex relationships. It is not hard to imagine a situation where a man helps raise his girlfriend’s child even though he is not the biological father. If there is no biological father in the child’s life (the father is unknown, deceased or has simply refused all involvement and paternity has not be established), the same rules would apply and the boyfriend could seek parenting time under the co-parenting agreement. The Kansas Supreme Court never discussed this scenario and there is no discussion of equal protection of the non-biological mother’s rights as compared to a non-biological father. But the legacy of this case may well be that it treats non-biological parents equally regardless of gender or sexual orientation.

The case is Frazier v. Goudschaal.

Is Annulment a Better Option than Divorce?

mcraelawoffice — Thu, 04 Oct 2012 19:55:30 +0000

Occasionally someone will ask me about the possibility of getting an annulment instead of a divorce. This is an area where the “word on the street” differs greatly from the actual law. For example, it is common for people to have heard that an annulment is granted if the parties have been married for only a short time. Also, there is a common perception that annulment will be faster and/or easier to get than a divorce. In Kansas, however, annulments are not based on the duration of the marriage and they are not necessarily easier or faster. In fact, because you must prove you meet the required grounds for an annulment, it may be harder to get than a divorce in some cases.
Kansas allows for a marriage to be annulled in two circumstances – if the marriage was void (it violated some legal prohibition) or if the marriage is voidable (some material fact was unknown to one or both parties which, if known, would have led that party to decide against the marriage). If the marriage is not void or voidable, the parties cannot get an annulment not matter how short the marriage.
A marriage is void if there is a legal prohibition against the marriage at the location of the marriage itself. By way of example, it is presently illegal for homosexual couples to get married in Kansas. If a gay couple were to be married here the marriage would be void and the court would grant an annulment. However, if the couple were married in a jurisdiction where gay marriage was legal, the marriage would not be void and Kansas could not grant an annulment on that basis. Other examples of void marriages include close relatives (siblings, cousins, etc.); under age parties or one of the parties being married to someone else (bigamy).
A marriage is voidable if one or both parties did not know a material fact that would have led them to decide against being married. If the husband lies about his financial status and ability to provide for his wife when in fact he is a deadbeat he wants to swindle her family’s money that may be an example of a marriage induced by fraud. Another example is if the wife, prior to the marriage, claims she is pregnant with the husband’s child knowing that either she is not pregnant or the child belongs to someone else that is also induced by fraud. If the court finds the marriage was induced by fraud it must grant the annulment. On the other hand, if there is not a fraud by a only a mistake in fact, then the court may grant the annulment but is not required to under Kansas law. An example of this situation is if one party has a serious, undiagnosed mental illness which only became apparent after the marriage. Alternatively, if the wife-to-be was pregnant at the time of the marriage and both parties believe it was husband’s child, but it turned out to be someone else’s, that would be a mistake of fact and not fraud.
The burden to prove the grounds are met is on the party seeking annulment. This is often a higher burden than what is required to get a divorce. As a result it is incorrect to think of annulment as an easier way to dissolve the marriage- it is not available in most cases and it can be hard to prove in the cases where it does apply. If you have questions about whether you are eligible for an annulment, you should consult an experienced family law attorney in your area to discuss your case.

In a Custody Case the Long Term is Longer Than You May Think

mcraelawoffice — Sat, 24 Mar 2012 03:25:05 +0000

I often hear prospective clients say that once the youngest child turns 18 they will never have to deal with the other parent again. As a result they feel comfortable taking aggressive positions against the other parent. For example mom may refuse to switch a holiday or weekend when dad asks for a change, or dad may refuse to allow mom to have the child for an extra few days when mom wants to take a spring break trip. The idea is that it is only a couple of years until the parenting plan does not matter so there is no reason to play nice.
This is a serious mistake. Although the parenting plan may stop when the youngest child is 18, the relationship between the parties will not end. There are going to be college graduations, marriages, grandchildren and holidays even after the child is 18.
What some parties do not understand is the aggressive position you take today may still cause problems years from now. If you refuse to switch a holiday or weekend now the other parent may reciprocate by being difficult when it comes to holidays with grandchildren ten or twenty years from now.
The bottom line is the long run may be longer than you think. It is usually in your best interest to be cooperative with the other parent, even if you do not want to at this moment. If there is a legitimate reason to deny a request then do so; but if there is not a real, legitimate reason then you should try to work together. Ultimately every decision should be guided by answering one question – what is best for the child?

Who decides where a child lives in a Kansas divorce case?

mcraelawoffice — Tue, 20 Sep 2011 17:27:23 +0000

A common divorce “myth” holds that a child can pick where they want to live, if the child is old enough. Until a child turns 18, however, this is not true. The divorce court has to create or approve any custody arrangement or parenting schedule. By law the divorce court must determine if a schedule is in the child’s best interest before the schedule can be approved.

In Kansas, the “best interests of the child” test requires the divorce court to consider several factors. First, if the parents of the child reach an agreement on a custody or parenting plan, the divorce court is required to presume the agreement is in the child’s best interests. The presumption can only be overcome if the divorce court makes specific findings the agreement is not in the child’s best interests. In other words, the parents have first say over any custody or parenting plan. If the parents agree on a plan the divorce court will usually approve it. Only if the divorce court specifically finds the custody or parenting agreement does not serve the child’s best interests can the judge reject the agreed plan

If the parties cannot reach an agreement the divorce court has to decide on an appropriate parenting or custody plan. Kansas divorce law lists eleven factors for the courts to consider. The list is not exclusive, the divorce court can consider other relevant factors if appropriate. However, these eleven factors will be considered in every Kansas divorce or paternity case when parenting time or custody is in question. The factors are:

Length of time the child has been cared for by anyone other than the parents.
The parents’ wishes.
The child’s wishes.
Child’s relationship and interaction with parents, siblings and anyone else who can significantly affect the child’s best interests (for example, step-parents, roommates, etc.).
Child’s adjustment to home, school and community.
Willingness and ability of each parent to respect/appreciate bond between child and the other parent, and to allow for a continuing relationship between the other parent and the child.
Any evidence of spousal abuse.
Whether either parent is required to register with the sex offender registry in Kansas or another jurisdiction.
Whether either parent has been convicted of child abuse.
Whether either parent is living with anyone who is required to register with the sex offender registry in Kansas or any other state.
Whether either parent is living with anyone who has been convicted of child abuse.

The sixth factor on the list can be very important and very difficult for parties in a hotly contested divorce case. By law the divorce court is required to examine how the parties are able or unable to work together for the best interests of their child. If one party refuses to cooperate with the other, the divorce court can determine that the best interests of the child are harmed and can adjust parenting time accordingly.

What Does “No Fault” Divorce Mean?

mcraelawoffice — Fri, 05 Aug 2011 17:05:43 +0000

I am frequently asked questions about how one spouse’s bad behavior (adultery, alcoholism, abuse, etc.) impacts a Court’s decision to divide the property and debts in a divorce. There has also been some news regarding a proposal being discussed to reconsider Kansas’s “no fault” divorce system. I thought it might be helpful to discuss what “no fault” means and how it relates to the final outcome in a Kansas divorce.

Kansas divorce law applies “no fault” rules in two ways. First, Kansas does not require one party to prove the other caused the divorce by behaving badly. In other words you do not have to show your husband or wife was abusive or had an affair before you can get a divorce. Instead, Kansas requires one spouse state the parties are incompatible. (Kansas Statutes Annotated 60-1601). The law does allow you to allege failure of one side to “perform a material marital duty or obligation” but you are not required to and very few divorce cases are filed on this basis. Kansas law also states the grounds for divorce should not be detailed in the court documents – you should not air your dirty laundry in the court file. Instead the reason for the divorce should be stated “as nearly as possible in the general language of the statue, without detailed statements of fact.” (K.S.A. 60-1604(c)). Even if one side wrote a detailed list of all the reasons the divorce is the other side’s fault, Kansas law keeps the list out of the Petition for Divorce.

Second, Kansas divorce law generally does not consider bad behavior when dividing assets and debts. Instead the divorce court divides the family’s assets and debts based on the length of the marriage, the ages of the parties and their current and future ability to earn a living, etc. The division of assets and debts in a divorce case is required to be “just and reasonable”; it is not used to punish either side for bad behavior. (K.S.A. 60-1610(b)(1).

There is an exception to the no fault division of assets and debts in a Kansas divorce. If either side has caused a “dissipation of assets”, or has wasted money or given away property, the Court can take that into consideration. For example, if the husband has an affair the Court will not usually consider this bad behavior when dividing property in the divorce case. But if the husband bought expensive gifts for his girlfriend he wasted marital funds and the Court can use that in the divorce. Continuing the example, if the husband bought his girlfriend a car for $25,000 the divorce judge could give the wife the first $25,000 of property in the case and then divide the rest evenly. The husband’s bad behavior, wasting $25,000 of marital funds on his girlfriend, is used by the court to give the wife an extra $25,000 in the divorce to make the total distribution just and reasonable.

I hope this post has helped explain the two ways Kansas uses “no fault” in it divorce laws.

Do I Need a Lawyer For My Divorce?

mcraelawoffice — Tue, 02 Aug 2011 16:32:11 +0000

Financial strain is one of the leading contributors to divorce. Unfortunately, divorce itself usually only increases the strain on already limited family budgets. Between the costs of a second household, lawyer fees, court costs and other new expenses it is easy to see how the situation can go from bad to worse. As a result, many people who decide they need to get divorced are tempted to “do it themselves”. I am frequently asked “can I represent myself” which is usually followed by “should I?” I will try to give you some insight on those two questions.

1. Can I represent my self in my Kansas divorce?

The answer to this question is a simple and straightforward “Yes”. There is no requirement for a lawyer in Kansas. However, the Court cannot give you any advice or assistance in preparing or filing your documents or help you make or argue your case. Many times a party in a case will want to bring a friend or family member to court with them. You can have them come with you to court and they can sit in the court room, but they generally cannot sit at the table with you or speak to the court on your behalf. If you decide not to have a lawyer you will be on your own.

2. Should I represent myself in my Kansas divorce?

The answer to this question is not as clear-cut. Each case is unique and a simple yes or no answer would be misleading. I do not know your individual situation so I cannot offer any specific advice but I can give you some things to think about as you consider your options. As a general rule of thumb the more issues involved in the case the more you are likely going to need professional assistance handling the case. If it is a very short-term marriage with no children and little to no property or debt acquired during the marriage, it is more likely that you can successfully do it yourself. However, there are many issues which can be overlooked and the longer the marriage the more issues there are to be considered. For example, do one or both parties have retirement plans? The increase in value of the plans during the marriage is likely to be a marital asset to be divided. If one side does not have a plan, or more was contributed for one than the other, it may be necessary to divide the retirement plans so each side is treated fairly. Dividing these plans can be a long, frustrating process which can have significant tax consequences if not handled properly. Similarly, if there are joint debts (credit cards, for example) it is important to take steps to ensure the debts are handled properly. If the divorce agreement assigns the debt to one party but the debt remains in both names there may be problems. jointly owned assets (house) have other considerations. Finally, matters involving children are often complex and emotional and it may be advisable to consult a knowledgable, neutral third-party to help. Kansas has specific child-support guidelines which have to be considered any time there are children involved even if the parents have reached an agreement on support.

There are options available if you are not sure you can afford an attorney. One option is to meet with an attorney for an initial consultation to at least get some insight into the process involved with your case. Like many attorneys, I offer a free initial consultation to allow someone considering hiring me a chance to meet, ask questions and see if I am a good fit for them. Another option is to hire an attorney to do some limited work on your case. This is a new trend in the law and is sometimes called “unbundled services” or “limited scope” work. The idea is that you can hire a lawyer to do one or two specific things in your case, but not everything. For example, you can hire someone to help you prepare the initial petition and summons, but nothing else. Or you can hire an attorney to prepare the necessary court order to divide a retirement account. Often clients tell me they have negotiated an agreement but do not know how to “put it on paper” – this is another good opportunity to use a limited scope arrangement and hire an attorney to prepare the Separation Agreement which includes the agreements you and your spouse already negotiated. Another option might be to hire a trained mediator to work with you and your spouse to negotiate a settlement.

As you can see, there are opportunities to try to do some of the work yourself without have to go it all alone. However, it pays to be very careful when trying to decide how to proceed. If you are not sure you should ask someone who has experience handling divorce and family law matters. What you do not know can hurt you because, in many case, it is not possible to go back later and fix any mistakes.

Please keep in mind this blog is for informational purposes only and does not constitute legal advice. The choice of a lawyer is an important one and should not be based solely upon advertising.