In this Q&A, attorney Laurel Driskell provides an overview of the different areas and issues that fall under family law, otherwise known as domestic law, and explains how a court or judge considers each matter.
Q: What is a prenuptial/premarital agreement?
Laurel Driskell: A prenuptial or premarital agreement is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. A premarital agreement must be in writing and signed by both parties to be enforceable. Parties to a premarital agreement may contract with respect to the property rights and obligations of either or both parties during the marriage and at the time of separation, spousal support at the time of separation, the ownership and disposition rights of death benefits, and other such issues.
Q: How do I file for divorce and what are the impacts?
LD: A decree of divorce can be entered upon the filing of a petition for divorce by one spouse against the other. For a divorce to be granted in Kansas, one of the parties must have been a resident of Kansas for at least 60 days immediately preceding the filing of the petition for divorce. Additionally, 60 days must pass after the filing of the petition for divorce before the divorce can be granted unless the judge enters an order declaring the existence of an emergency.
A divorce action consists of the division of all the parties’ marital property and debts and the entering of orders regarding the parties’ minor children, if any. The parties may enter a separation agreement that addresses all these issues instead of having the court make the decision. If the parties are not able to reach an agreement, then the court must make a determination.
Marital property is all property owned jointly by the spouses or acquired by either spouse after the marriage. Any property owned by either spouse at the time of the marriage may remain that person’s sole and separate property instead of being divided between the parties.
Q: What does it mean to receive or be ordered to pay maintenance/spousal support?
LD: As part of a divorce, the court may award either party spousal maintenance for future support after the termination of the marriage. Maintenance is entered based on what the court finds to be fair, just and equitable under all of the circumstances, and may be ordered to be in a lump sum, in periodic payments, on a percentage of earnings, or on another basis.
Q: How do Kansas courts go about deciding custody and parenting time when separated or divorcing parties have children?
LD: If the parents of a child or children are not married, either parent can bring an action to determine the custody and parenting time of their child or children. Through a custody action, the court will enter orders regarding custody, residency, and parenting time of a child in accordance with the best interests of the child.
Similar to a separation agreement in a divorce action, parties in a child custody action may enter an agreed upon parenting plan that addresses all of the issues regarding the child or children of the parties instead of having the court make its own findings.
If the parties are not able to reach an agreement as to the custody and parenting time of the child or children and the court must make its own determination, the court takes into consideration a number of factors such as the parents’ involvement with the minor child; the desires of the parents and/or a child of sufficient age and maturity; the age, emotional capacity, and physical needs of the child; 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; the school activity schedule of the child and the work schedules of the parents.
The court must first decide legal custody. The court may order the joint legal custody of a child with both parents, in which case the parents will have equal rights to make decisions in the best interests of the child. Alternatively, and in rare circumstances, the court may order the sole legal custody of a child with one of the parents when the court finds that it is not in the best interests of the child that both parents have equal rights to make decisions pertaining to the child.
After deciding on the legal custody of the child, the court will then determine the residency of the child, in which case the court may order that one parent have residency of the child with the other parents receiving parenting time, or that both parents have divided residency of the child. Either way, a parent is entitled to reasonable parenting time unless the court finds that the exercise of parenting time would seriously endanger the child’s physical, mental, moral, or emotional health.
Q: What is child support?
LD: The court can enter a child support order in a custody matter. The court will determine the amount of any child support order by application of the Kansas Child Support Guidelines, and generally orders it for as long as the child is less than 18 years of age and/or in high school.