Why Do I Need An Attorney For Estate Planning?

Think about it this way…would you ever give yourself a root canal? Extend your existing electrical circuits? How about fly an airplane?

Unless you are a dentist, electrician or pilot, chances are you wouldn’t do any of the above on your own, no matter how many YouTube tutorials you watch. The same applies to your estate plan.

Here’s why:

1. Attorneys can help you cover all aspects of your estate plan.

Your estate plan includes more than just a will. Consulting with an attorney will ensure you cover all your bases, including making your medical directives known, properly appointing a loved one to oversee your finances and healthcare and drafting transfer-on-death deeds for real property.

2. Your estate plan will comply with Kansas laws and be legally valid.

Each state follows its own set of rules regarding estate planning documents. Attorneys are familiar with the statutory requirements in their state and will ensure the documents are drafted and executed properly to be considered valid in a court of law. Additionally, most law firms have a notary public and staff members to notarize and witness the documents, so you don’t have to search around town.

3. The burden on your family members will be significantly decreased.

Probating a will can be expensive. When a will is probated, the court gets involved by determining the validity of the will, overseeing distributions, settling disputes and taking any other necessary measures. This process can be lengthy, costly and may even strain relationships with family members. By hiring an attorney, you can learn how to avoid probate and lessen the burden on your loved ones.

Thinking about the future and planning your estate can be unnerving and overwhelming. Meeting with an attorney can help ease those fears and make sure your affairs are properly in order.

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Abby Hoelting

Law Clerk

Abby Hoelting, Law Clerk

Abby originally joined our team as an Office Assistant in 2014, back when she was an undergraduate student at Kansas State University. After receiving her undergraduate degree in Political Science from Kansas State University, Abby went to Washburn School of Law. She is anticipated to graduate in May of 2018. 

Top 5 Things to Know Before Hiring a Lawyer

What to consider when hiring an attorney…

Reputation – The reputation of your potential attorney should always be considered. Rely on the recommendations of your trusted friends, family and colleagues and pay attention to online reviews and testimonials. It’s important to have an attorney that you trust is looking out for your best interests and not just their bottom line.

Cost - Before you hire an attorney, you should consider the costs and make sure they are both worthwhile for your case and affordable to you. Different attorneys will have different rates which may or may not coincide with their experience so it’s not necessarily the case that the most expensive attorney is the best for you or a cheaper one must not be as good. You may be charged a flat rate, hourly, or on contingency. The attorney may or may not require a retainer that is paid up front. This will vary both by attorney and the type of case you have. There may be additional expenses such as filing fees, mailing, copying and travel. Be sure to ask your potential attorney approximately how much your case will cost and what additional expenses you can expect to be charged for.

Experience – Consider the experience of the attorney you are considering. If you’ve hired an attorney who only does estate planning to represent you in a divorce, they may be less efficient and may take longer on your case than an experienced divorce attorney would and may be less effective in getting a desirable settlement on your behalf. Perhaps you have a very simple case but simply don’t know how to get it done on your own. In this case, a newly hired associate with a substantially lower rate may end up costing you less than a partner with over a decade of experience.

Compatibility – It’s extremely important that you hire an attorney that you feel comfortable with and can speak easily and honestly with. Do they seem to understand what your issue is and what your desired outcome is? Are you on the same page with the strategy in which to get that done? If you disagree on the strategy, do you trust them enough to follow their lead? Follow your gut on this. When meeting with an attorney, you should be able to click with them right away. If you have any uncertainty or lack of confidence in them, meet with more attorney’s before you make a decision.

Expectations –Depending on your familiarity with the legal process as well as your personality, you will have different needs and expectations than other clients, and perhaps your potential attorney. Are you OK letting the attorney handle things and just contacting you when necessary, do you want daily updates or something in between? Do you expect detailed explanations of the process or would you rather stay hands off, so you don’t have to think about it? Can you expect most of your correspondence to be directly with the attorney or will most of your correspondence come from a paralegal or legal assistant? Is the same rate charged for paralegal time as attorney time? If you know that in order to feel comfortable, you are going to want frequent regular contact with your attorney, and they scoff at that idea or tell you that their schedule doesn’t allow for that and that most communication is delegated to office staff, they might not be the attorney for you. If it’s an attorney who is going to want to talk to you frequently (and charge you for it) and you’d rather keep the costs and your stress level down by having less direct communication, you’ll want to make sure you and your attorney have that understanding ahead of time. Having a clear understanding of the attorney’s expectations of you and making sure the attorney has a clear understanding of your expectations, will result in a much healthier work relationship.

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Mary McMullen

Paralegal

What is a default divorce?

Divorce actions involve the issues of dividing property in a fair and equitable manner, child custody and visitation, child support and spousal support. The party beginning the divorce, the Petitioner, files a Petition for Divorce and issues a Summons on the opposing party, the Respondent. When the Respondent fails to plead or otherwise respond to the Petition for Divorce and Summons served upon him or her, the Respondent is in default.

The Petitioner must then request that a default judgment be made. Prior to the Court entering a default judgment, the Petitioner must file an affidavit or state in the Petition that the Respondent either a) is not in the military service of the United States; b) is in the military service; or c) or that the Petitioner does not know if the Respondent is in the military service.

The federal statutes define "military service" as federal service on active duty including the period during which a person in the military service is absent from duty due to sickness, wounds, leave, or other lawful cause. If the Respondent is in the military at the time of default, then federal statutes prohibit the entry of default until after the Court has appointed an attorney to him or her. Additionally, if the party in the military requests a stay, the Court must grant the stay and will be otherwise unable to enter a judgment of default.

Once a default judgment has been entered, a default hearing is held to determine the issues of the divorce after the Respondent has failed to make any sort of appearance in the case. No further notice of the proceedings to the Respondent is necessary in a default divorce; the service of the Petition and the Summons is enough notice that a final judgment may be entered.

However, one exception applies to this rule: if the Respondent has appeared or appeared by representation at any time in the divorce action, the Respondent or Respondent’s counsel must be served with the written request for a default judgment at least seven days before the hearing. Typically, the parties are divorced after the Court grants an Order from the default hearing.

If you are served with a Petition for Divorce and a Summons, be sure to consult with an attorney as quickly as possible to avoid having a default judgment entered against you.

 

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Summer Dierks

Partner

Should I take a settlement / When should an accident victim just take the insurance settlement?

I Have Been Hurt in a Car Wreck. Should I Accept the Insurance Companies First Settlement Offer?

The auto insurance company's first settlement offer is almost always just that, a first offer to settle.  

The driver who was at fault for the accident (assuming that's not you) is going to be responsible for your damages, that means the cost of your past and future medical treatment, lost income from time missed at work, your vehicle repairs, past and future pain and suffering and any other compensable damages related to the accident.  

Assuming the driver who caused your damages has car insurance, the settlement offer is going to come from the insurance company for the other driver, and if you have a lawyer, he or she will be the intermediary.

What are your options once you’ve received a settlement offer?

The First Offer (Probably) Won't Be the Last

The insurance company’s first settlement offer is just that. And it’s almost always going to be a low offer. I have personally had settlement negotiations which went on for a month and involved in excess of 20 offer/counteroffer cycles.

You are absolutely free to reject the offer, and in most cases you should reject it. Listen to your lawyer. He or she will have advice that’s tailored to your situation.

The time settlement negotiations take will depend on a number of factors. They include the nature and seriousness of your injuries and whether fault for the accident is an issue.

Your lawyer will likely draft a demand letter, sometimes known as a settlement brochure. A demand letter is your chance to methodically present your side of the story. How the accident happened, who was at fault, what medical treatment you’ve received so far, the prognosis for your recovery, and any other information that helps your case. The letter will include details on all of these aspects of the case, and will also include a dollar figure that you would be willing to accept in order to settle the case.

Making a Counter-Offer, and What Comes Next

After the insurance adjuster’s first offer in your car accident case, you have the right to respond with your own counter-offer. Again, you may get the best results by putting your counter-offer and your supporting arguments into a detailed car accident demand letter. I often tell clients it is a lot like buying a car. There has to be give and take.

Typically this is the course that a typical car accident settlement will follow:

1. You and your attorney if you have one respond with a detailed car accident injury demand letter that asks for more (sometimes much more) than what the insurer offered.

2. The insurance company makes an initial offer that is usually less than what your claim is probably worth.

3) Your attorney and the insurance adjuster exchange a few more letters and participate in a few more phone calls where you try to keep the settlement figure in the higher range, and the adjuster tries to bring the figure down.

4) Your attorney and the adjuster arrive at a final settlement figure that is satisfactory to both sides.

It will very likely be worth your while to discuss your case with an experienced car accident attorney at Seaton, Seaton & Dierks, L.L.P. (785) 776-4788.

Richard H. Seaton, Jr.

Partner

Will my kids have to go to court?

Most people’s main concern when they come to our office for a divorce consult is what will happen with the children and how the divorce process will affect the children. We hope to make the process easier for you, but also make the transition easier on the children. When it comes to children, we not only worry about custody, but whether they will have to be in the courtroom, or even testify.

The best interest of the child is the standard used for determining custody of minor children, but it is also used as a sort of determiner for whether the child should testify. The first issue when determining if a child will likely need to testify is how old the child is. Courts are hesitant to allow young children, even as old as 13-14, to testify. The idea behind this hesitation is that children shouldn’t be needlessly put through the court process and that a child should never have the burden of determining which parent they will live with long term. That is a burden that the courts put on the parents and, if the parents can’t decide, that the court will take on themselves. As such, if you have a child under the age of 13, it is fairly unlikely that they will need to, or even be allowed to, testify.

Often, if the child is not of a sufficient age to testify, we will ask that the children do not come to court with you. The courtroom is not a place for children, unless they have to be there. Sometimes though, in more intense custody cases, the Court will Order the child to be present, in the event the court wishes to interview the child. This situation is one that can cause stress to the child and the parent, however, our goal in these cases is to make it so that the child doesn’t have to testify and is able to wait in a waiting room, outside of the actual courtroom. If the child does have to testify, it is typical for the judge to call the child into their chambers and have a sit down conversation with usually just the judge and his court clerk.

Divorces don’t only occur with young children, however. If your child is high school aged, then they may be able to testify. Kansas law sets the choice of a child, of sufficient age, as one of the many factors in determining the best interest of the child. If your child is of sufficient age and wishes to testify, you should inform your attorney of that in your initial consult as the attorney will want to have a discussion with the child. It is important to remember though, the child’s choice is one of many factors, so the court has the authority to disregard a child’s choice if they feel staying with the other parent is in the child’s best interest.

Divorces, of course, are not easy on children. However, the State of Kansas, and we at Seaton, Seaton, and Dierks, L.L.P., have taken purposeful steps to help make the process and transition easier on the children, and less stressful on you. If you have concerns regarding your specific child testifying or being present in the courtroom, please don’t hesitate to ask your attorney about it.

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Trey Bryant

Associate

Trey Bryant, Associate

Trey recently joined our team and is licensed to practice law in the State of Colorado.  Trey graduated from Kansas State University in 2014 with a Bachelor of Science in Political Science, a Bachelor of Science in Legal Communication and a minor in Women's Studies. Trey earned his Juris Doctor from the University of South Carolina School of Law in 2017. Trey intends to focus his practice on Appeals,Civil Litigation, Family Law, Landlord-tenant Law and Contracts. 

How much child support should I expect to receive/pay for the benefit of my child?

            One of the most common legal issues facing people is not only who gets custody of the child, but also how much one parent will have to pay to the other parent in support. Child support can seem like a complicated equation, however, child support calculations in Kansas have been simplified and the rules governing support have largely become uniform.

            Child support calculations are based off of the Kansas Child Support Guidelines. These guidelines, put out by the Kansas Supreme Court, make it so that every child in set age brackets, by default, requires a certain amount of money to raise that child. This amount is set by statute and does not fluctuate based on the individuals involved, only by the income involved. The amount necessary to support the child is then divided based on the parties’ proportional incomes. For an example if Mom makes 60% of the household income and Dad makes 40%, then Mom would be responsible for 60% of the base cost and Dad would be responsible for 40%.

            Child support is calculated on what is called a “child support worksheet.” On the worksheet, a few other variables are added to the equation of costs to raise the child. This step is where the individual facts of your case will come into play. In order to complete the worksheet, we would need your gross income and the other party’s gross income, along with a couple of other easy-to-discover variables such as health insurance costs, daycare expenses, and who claims the child on their taxes. From this information, we would be able to figure out the amount of support that needs to be paid.

            Child support is calculated to help with the cost of raising the child and is considered under a standard of “best interest of the child.” As a result of this standard, courts are hesitant to allow much deviation from the worksheet because the State has determined that the formula used is presumed to be in the best interest of the child. Similarly, waiver of child support can present unique problems because it acts as a parent waiving money that is meant for the child and presumed to be in the child’s best interest. As a result, if the parents have come to an agreement to waive future child support, then the parents must be prepared to justify why no future support is in the best interest of the child.

            While the form and calculation itself has been simplified, the legal process of modifying, or establishing, child support still requires access to the Court system and the filing of various Court documents along the way. So, while you can be prepared by knowing how much child support will likely be ordered, we still recommend hiring an attorney to complete the legal process alongside you.

 

Trey Bryant, Associate

Trey recently joined our team and is licensed to practice law in the State of Colorado.  Trey graduated from Kansas State University in 2014 with a Bachelor of Science in Political Science, a Bachelor of Science in Legal Communication and a minor in Women's Studies. Trey earned his Juris Doctor from the University of South Carolina School of Law in 2017. Trey intends to focus his practice on Appeals,Civil Litigation, Family Law, Landlord-tenant Law and Contracts. 

How does property get divided in a divorce?

Property division is one of several aspects of filing for divorce, along with child custody, child support and spousal maintenance.

When one spouse files for divorce in the State of Kansas, all property owned by either spouse becomes marital property, whether it was acquired before or during the marriage. This includes separately titled property, inherited property and gifted property.

However, if the parties entered into a valid premarital contract prior to marrying, those assets listed in the premarital agreement remain separate property and are not subject to division. Once marital property has been identified, the court then determines the extent of each spouse’s interest in the marital property.

To make a just and reasonable property division, the district court weighs several statutory factors, such as: the age of the parties; the duration of the marriage; the present and future earning capabilities of the parties; the time, source and manner of acquisition of the property; family ties and obligations; the allowance of maintenance; dissipation of assets; tax consequences and any other factors necessary to make an equitable division. It is important to note that equitable does not always mean equal.

Parties on their own can agree how to divide the property, too. The parties’ agreement as to the division of debts and assets is listed in a proposed settlement agreement for the court to consider and/or adopt as an Order of the court.

K.S.A. §23-2801 and K.S.A. §23-2802

 

Does Seaton, Seaton & Dierks accept out-of-state clients/cases?

As summer travel season kicks off, a lot of people head out of town for family fun. But, unfortunately, sometimes things don't always go as planned. If you need help for an out-of-state legal issue, we might be able to help.

Seaton, Seaton & Dierks does accept out-of-state clients and will take out of state cases as well. Currently our attorney's are only able to practice in Kansas and Colorado. Our effective use of technology allows us to easily and effectively represent clients internationally. When working with out-of-state clients, we usually do the initial consultation over the phone and from there, rely heavily on email and telephone communication as well as video conferencing or telephone conferencing for hearings. 

It is important that you discuss the jurisdiction of your case with an attorney so that you are initiating your case in the correct court. Especially if the parties or subjects are in different states.  If the subject matter or any of your parties reside in either Kansas or Colorado, take advantage of our firm's free consultation to discuss jurisdiction of your case with one of our attorneys. 

Keep in mind that our office charges for travel time at the full hourly rate of the attorney assigned to your case. It is important to discuss rates, fees and expenses with the attorney prior to hiring them so you are able to fully weigh the benefits and costs associated with hiring the attorney you are considering. 

 

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Mary McMullen

Paralegal

Should I Accept Money from the Insurance Company?

SHOULD I ACCEPT MONEY FROM THE INSURANCE COMPANY?

If you have been injured on the job, you should hold off on immediately accepting the insurance company’s offer. Here is what you need to know about Worker’s Compensation in Kansas:

1.     You can check the offer with an attorney specializing in Worker’s Compensation, most likely at no cost.

2.     The offer may be satisfactory, but the attorney will be able to analyze it for you, using the statutory guidelines and your medical evaluation.

3.     If you decide to hire an attorney, the fee will be contingent, with a maximum of 25%.  So you should only pay minimum or his/her 25% of any amount above the initial offer you received.  Kansas law requires that you have written contract, which must be approved by a judge.

4.     The employee and their insurance company are required to pay all work injury – related medical bills, providing the treatment has been acknowledged by the company.

5.     Even future medical costs can be covered for the treatment received after your settlement, if agreed upon or if ordered by the judge.

6.     Usually the insurance company’s initial offer will be contingent on you giving up the right to future treatment.

7.     All settlements must be approved by a judge; and all contested cases are heard by a special worker’s compensation judge.

Auto Accident - First Steps

I have been hurt in an automobile accident. What do I do now?

Because insurance companies begin investigating the circumstances as soon as they are made aware of the accident, you should talk to a lawyer before you talk with the insurance company’s representative or consent to their requests for information. 

You will most likely will be contacted by a representative of the insurance company, also known as an adjuster, who may wish to take a recorded statement from you either by telephone or in person. Their purpose may be to gain information that they will use later in time to deny liability or fault, or to decrease the amount they should pay. They may also ask you to sign releases for medical or employment information. Your insurance company may require you to report any accident to them within a certain time frame, which may also involve requests for recorded interviews, medical documentation, employment information or other relevant information.

If you have been injured as the result of someone else’s actions, or on someone else’s property, or as the result of a car accident, you may require medical treatment. The hospital, doctor, or physical therapist must be paid. Your personal injury protection policy, which is part of every automobile insurance policy in Kansas will pay your medical bills up to the policy limit.  After the policy limit has been reached, your medical insurance will cover part or all of your medical bills. You should present the correct information to the billing office of the medical provider.

When you visit Seaton, Seaton and Dierks, LLP, please bring the following with you to your appointment:  any information you got from the police about your accident, a copy of your auto insurance policy, any correspondence or information you have from the other person’s insurance company and any information you believe is related to your claim in any way. You should also have similar information about any umbrella or excess insurance policies you may have.

If your own insurance policy, whether it be your health insurance, car insurance, or disability policy, pays for medical services rendered to you for injuries as the result of fault of another, those entities may be entitled to statutory or contractual repayment if you are able to recover from the person at fault.

An injured person is entitled to recovery for the amount of reasonable and necessary medical bills for treatment. An injured person might be entitled to lost wages which result from missed time at work because of an injury. He or she might be entitled to other damages which are more difficult to quantify, such as pain, disfigurement, loss of enjoyment of life, or lost earning capacity.  If you’ve been hurt in an accident, your first responsibility to yourself is to do everything you can to recover from your injury. You should follow the advice of all of your health care providers

Do I need a lawyer during a criminal interrogation?

Should I talk to the cops?

Every day in the United States, police officers and other law enforcement agents interview witnesses and suspects about crimes. This is a big part of their jobs. Quite commonly, I am asked whether a person should talk to the police. The Fifth Amendment to the United States Constitution grants a person an absolute right not to be forced to speak to anyone and the absolute right not to incriminate themselves. In the real world this works much differently. Realistically, most people are intimidated by police officers and people in positions of authority. They carry guns, and have the authority of the government behind them. Not surprisingly, every day people voluntarily give statements to the police and get themselves into trouble that they could have avoided by invoking their right to remain silent under police scrutiny.

What most of these people want to do is explain their side of the events. The police officer's job is to make cases and make arrests, not give you a fair hearing. They are trained in interrogation techniques aimed at getting the answers they want. Additionally, you are at a huge disadvantage when speaking with the police because they do not have to tell you what they know and can legally lie to you about evidence that they have. To make matters worse, you have no idea what other people might have said about you and what you have been accused of.

This all leads to the best advice that I can give to anyone who is approached by the police as a suspect: Politely tell the officers that you appreciate their jobs, but you would like to speak to a lawyer before you answer any questions. If there ever comes a time to tell your side of the story, we can tell it to an impartial party like the judge or a jury. Don't give up your rights. And possibly your freedom. 

Two rules to remember:
1.    The police are your friend until they think you have violated the law.
2.    If it weren’t for snitches and confessions, police and subsequently prosecutors would be much less successful in their work.

If you are the subject of an investigation, do not speak to the police until you have consulted with a qualified criminal defense lawyer.

How much does an initial consultation cost?

One of the first steps in getting legal assistance is sitting down with an attorney and having an initial consultation. During this consultation you should inform the attorney of the basic facts surrounding your case so that you can get accurate advice and an accurate assessment of the cost you will incur. However, before you have an initial consultation you should always find out if your attorney charges a consultation fee. The best way to find out what your attorney charges for a consultation is to simply ask when you are making the appointment. Some attorneys charge consultation fees for every consult, other attorneys charge consult fees in certain cases, and some attorneys never charge consultation fees.

If your attorney charges for every consultation, then they will normally charge their hourly rate for the consultation. Some attorneys, on the other hand, charge consultation fees on a limited basis. These attorneys usually charge consultation fees when a client is planning on asking specific legal questions that require background research of knowledge. Other attorneys charge consultation fees for specific types of legal actions.

Finally, some attorneys don’t charge consultation fees. These attorneys usually will be more hesitant to give you a lot of legal advice in the initial consultation. However, this approach allows you the opportunity to talk to an attorney to find out if you want to choose that specific attorney to represent you, without costing you any money. Attorneys who don’t charge consultation fees will also be stricter regarding the time your appointment is scheduled to start and end.

The ideas surrounding consultation fees have their own various benefits. The important thing is to find an attorney that you trust as the consultation fee is usually substantially less than an entire legal action. You should make sure to ask what your attorney’s consultation fee policy is before you make your initial appointment with the attorney and be fully organized and on time to your consult so that you get the most for your consult.

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Trey Bryant

Associate Attorney

Trey Bryant, Associate

Trey recently joined our team and is licensed to practice law in the State of Colorado.  Trey graduated from Kansas State University in 2014 with a Bachelor of Science in Political Science, a Bachelor of Science in Legal Communication and a minor in Women's Studies. Trey earned his Juris Doctor from the University of South Carolina School of Law in 2017. Trey intends to focus his practice on Appeals,Civil Litigation, Family Law, Landlord-tenant Law and Contracts. 

Can I represent myself in criminal my case?

Can I Represent Myself in Criminal Court? Yes, But This Is Why You Shouldn’t.

A person accused of a crime has a right to represent themselves in court.

The case that established that defendants have a right to represent themselves was Faretta v. California, U.S. Sup. Ct. 1975 which said in part that a judge must allow self-representation if a defendant is competent to understand and participate in the court proceedings.

Defendants cannot represent themselves unless a judge determines that they are competent to do so. The community as a whole has an interest in achieving justice, and a trial in which an incompetent defendant self-represents isn't a fair one.

The Pro Se Defendant

Judges and lawyers in Kansas typically refer to defendants who represent themselves with the term "pro se". “Pro se” comes from the Latin and roughly translated means “for one’s own person.”

In determining competence, the judge will weigh various factors including:

1.   the defendant’s age

2.   the defendant’s level of education

3.   the defendant’s familiarity with English, and

4.   the seriousness of the crime with which the defendant is charged.

There is not a single factor which determines the result. A defendant doesn’t need the legal skills of a lawyer to qualify for self-representation. As long as a defendant is competent, knowingly gives up the right to counsel and understands the courts proceeding and follows the rules of evidence, the defendant is entitled to represent him or herself.

It is vital to understand that although a defendant can represent him or herself, that doesn't make it a good idea!  We have all heard the old adage “He who acts as his own lawyer has a fool for a client”.   Almost everyone I know who works in the criminal justice system agrees that self-representation is generally a bad idea. This is for various reasons, but the two most important reasons are:

1.   The defendant usually lacks anything near the necessary training and experience to deal with prosecutors who have spent a career in the business and relish the pro se defendant as “easy meat”.

2.   The defendant is unable to maintain objectivity when dealing with issues that could affect defendant’s freedom and or financial position.

Persons who go to criminal court without representation will find themselves at a huge disadvantage when it comes to knowledge of the law, knowledge of criminal procedure, knowledge of the rules of evidence and understanding of how the system works in general.

We at Seaton, Seaton and Dierks strongly recommend that you have legal representation at every stage in your criminal case. We generally offer initial consultation in criminal cases at no cost. Seaton, Seaton and Dierks stands ready to assist the accused in their fight for justice in system.

 

What do I need to know about parenting time and child custody?

If you’re filing for divorce, here’s what you need to know about parenting time and child custody for your minor child.

In the State of Kansas, all judges will apply the standard of “best interest of the child” in every decision he or she makes regarding your child.

At the time of filing the divorce, parents may obtain a temporary order controlling the rules of custody for your pending case. Those orders may be entered by the filing party without the knowledge of the responding party, called “temporary ex parte orders,” or they may be entered once the responding party is served and has had an opportunity to respond, called “temporary orders.” In the event temporary ex parte orders are entered, the judge will not have the authority to change what is called “de facto custody.” This simply means the judge cannot take primary physical custody from one parent and give it to the other without that parent being involved in the court proceeding.

In the State of Kansas, there are two types of custody, legal and residential. Legal custody is setting out which parents will have decision-making rights over the child’s health, safety and welfare. Typically, legal custody is set as joint. This gives both parents decision-making rights over the child.

Residential custody is setting out where the child will primarily reside and how much parenting time the other parent will exercise with the child. A standard parenting plan involves one parent having primary residential custody and the other parent exercising every other weekend and alternating holidays.

It is important to remember that the judge will always apply the best interest standard when making a decision or approving the parent’s decision regarding the end result of custody. If parents reach an agreement, the presumption will be that the agreement is in the child’s best interest, but the judge must make that specific finding and approve the parent’s agreement.

Do I Need a Will?

Do I need a Will?

None of us live forever. A Last Will and Testament, (“Will”) lets you plan for the future – after you are gone. It gives us a sense of control regarding what happens upon our own death.

For example, if you have minor children, you can designate in your Will, who will take care of them and manage their assets for them. If you fail to put a Will into place, the Court has the power to grant the appointment of a guardian and conservator and do so without your input. You may also increase stress on your family members by forcing them to shoulder this burden.

In Kansas, if you and your spouse have children and one of you dies without having a Will in place, the law divides your assets in two, ½ to your spouse, ½ to your children, who wouldn’t inherit until the age of eighteen (18). Generally, most people want their assets to go to their surviving spouse and have their children inherit only when both parents die. In order to avoid something you do not want happening, a Will is necessary. Another great thing about a Will is that you can specify when your children would be entitled to full ownership of their inheritance. Additionally, if two parents die close in time to one another without a Will, both estates may need to be probated. However, parents are able to eliminate that issue by specifying in their Will that a second probate is not necessary.

Finally, Kansas law allows you to leave a list of specific property you want to give to specific people. This list is referenced in your Will and it can be amended without amending your Will.

Of course, the Will itself must comply with Kansas law and an attorney who regularly drafts Wills is a great resource to put one together for you.

 

 

How Do I Know If I Have a Sexual Harassment Case?

     Sexual harassment is a form of prohibited sex discrimination under both state and federal law.

     If you have endured severe or pervasive conduct of a sexual nature that a reasonable person would consider abusive, you may be a victim of sexual harassment.

     Also if you have to put up with offensive conduct like that in order to keep your job, you are probably a victim of sexual harassment.

     Petty slights and isolated incidents usually won’t be enough. But if the conduct creates a work environment that is offensive, then it violates the law. Of course it must be uninvited by you.

     Offensive conduct includes jokes, slurs, name calling, ridicule, and put-downs with sexual overtones.

     It can come from your supervisor, or any fellow employee. It can also be conduct by a customer.

     Your employer should have policies which tell you how to report harassment. For your claim to be viable, you must follow those policies.

     Remedies for sexual harassment are similar under Kansas and federal law. The federal law covers employers with 15 or more employees, while Kansas law applies to those with 4 or more. Complaints may be filed with EEOC, Gateway Tower II, 400 State Ave., Suite 905, Kansas City, KS 66101. The phone is 1-800-669-4000. Kansas complaints are filed with KHRC, 900 SW Jackson, Suite 568S, Topeka, KS 66612. Their phone is 785-296-2215.

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Richard H. Seaton, Sr.

Senior Partner

How Long Does it Take to Get a Divorce?

     If you’re thinking about getting a divorce, chances are you have some questions about the process. One of the biggest questions we get in our office is “how long does it take to get a divorce?” We address that question today on our blog.

     In the State of Kansas, it costs $195.00 to file a divorce. That is the clerk’s filing fee to accept your petition for divorce into the court's system. Upon filing the petition for divorce, the petition must be on file for at least sixty (60) days before the divorce may be granted. The sixty (60) days is deemed a “cooling off period” in the State of Kansas, in order to make sure the filing party truly wants the divorce to be granted.

     During the sixty (60) day period, the opposing party will be served or given a waiver to sign and waive service of process occurring on them. Once the opposing party has been served or acknowledges service through their signed waiver, they are given time to respond. Either twenty-one (21) days for an in-state resident, or thirty (30) days for an out-of-state resident. The response is one that is filed with the clerk of the district court in the current open case. If the responding party fails to timely answer the petition, they are known to be in “default.” At that point, the filing party may be able to proceed without the responding party.

     In the event the responding party timely answers the petition, they are then involved in the case and all further proceedings. Depending on the district court judge, the case may be set for a “status conference” which is essentially a “check-in” hearing. The judge may also want to set the case for a “pre-trial conference” which is an opportunity for the parties to inform the court of the outstanding issues in the case and estimate how long they believe a trial may take.

     If the parties in the divorce have children, the court may require mediation to take place. Mediation is an opportunity for the parties to sit down with a neutral third party an attempt to reach an agreement on the custody matters relating to their children. In the event they are successful, the agreement is reduced to a writing and filed with the court. In the event they are unsuccessful, the court will then have the parties present their evidence on the matter.

     When the judge finds it appropriate, the case will be set for final hearing or final trial. These terms are used synonymously and just mean that all outstanding matters in the case will be heard in their entirety and the judge in the case will make rulings on all matters.

      The important thing to know is that a divorce case can be completely agreed on and no trial will be necessary. The parties can reach agreements relating to property and debt division and the judge will approve if the agreement is fair, just and equitable. The parties can also agree on all matters relating to custody and the judge will approve if the agreement is in the children’s best interests.

     Our office looks forward to helping you in your divorce and relieve the stress that we know comes with the process.

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Summer Ott Dierks

Partner

The Do’s and Don'ts of your Initial Consultation

Meeting with an attorney for the first time can seem daunting and overwhelming. This guide will help you to arrive prepared and leave with valuable information.

Do ask about the attorney’s focused practice type and experience in dealing with your case type.

     People often seem to ask this question apologetically or skip asking together. You’ll want to make sure your attorney can confidently and easily handle your case and while talking about your case may give you a sense of that. Do not be afraid to directly ask about the attorney’s experience.

Don’t expect a whole lot of free legal advice in your initial consultation.

     A majority of this initial consultation will be used to get a grasp on your case, what your ideal outcome is, and discovering the process of what needs to be done to get there.  During the consultation, you should feel like you have a grasp on what the process is and if you want or need an attorney to get you there. Also, you will want to make sure that the attorney you hire seems to really understand your specific situation and is on the same page with you as to how you want the matter handled. For instance, maybe you are looking to settle as amicably as possible and keep costs low but the attorney you are meeting with seems gung-ho in taking your case to trial. This attorney probably isn’t the right fit for you. Or vice versa, maybe you are determined to have your day in court but the attorney seems less enthusiastic about litigating your case. That may be a good indication that you need to keep looking.

Do discuss fees and costs.

     During your initial consultation, you should expect to talk about the costs that are anticipated to take your case where you want it to go. Most attorneys will quote you a retainer which is paid up front at the time you hire the attorney. A retainer is kept in a trust account on your behalf and is billed from as the attorney and staff work on your case. In the event your retainer is depleted, you will likely be asked to refill it or billed from there on an hourly basis. Make sure you ask how far the attorney anticipates that retainer lasting in your case. Some will give a quote for the entire case up front, others may be looking for only about half, or in other cases, the attorney may even just a retainer to get things started in your case.  Keep in mind that the attorney you are meeting with is likely not the person that will do a majority of the work on your case or that you will correspond with the most. Most attorneys have a paralegal or legal assistant that does a majority of the drafting, scheduling and corresponding on the attorney’s behalf and their hourly rate will likely differ than that of the attorney. Additionally, you may have additional court costs, fees and expenses associated with your case. Make sure to discuss and consider these as well when making your decision of whether or not to hire an attorney.

Don’t lie or withhold the truth.

     When discussing your case with the attorney, honesty is always the best policy. Keep in mind that attorney-client privilege will apply to your initial consultation. It is not the attorney’s job to take sides, judge or determine who is the “good guy” and who is the “bad guy.” In order for them to do their best in representing you, and provide you with accurate information, it is important that they have all the facts, good and/or bad. It’s better to tell the truth up front than have your attorney be surprised with it later. This could also change the course of the necessary process of your case and also the costs. If you feel uneasy about sharing pertinent details of your case, don’t be scared to ask the attorney to explain what is and is not protected under the attorney-client privilege before sharing.

Do show up on time.

     Just like a doctor's office, an attorney's office runs on a very tight schedule. Showing up on time will ensure that you get an opportunity to make the most of your initial consultation. The last thing you need is to feel rushed as you will want to get all of your important questions asked before leaving. The last thing you want is to leave and realize you forgot to ask one of your most pressing questions as getting back in touch with the attorney promptly will likely be difficult and you will find yourself having to either have a follow-up appointment down the road or hiring the attorney prior to getting that question answered.

Don’t come empty handed.

     If you are seeking an attorney, you are likely dealing with an unfamiliar, complex and stressful matter. This can make anyone’s mind a little cloudy when it comes time to discuss these matters with an attorney. Having a list of questions you feel are important to have answered prior to selecting an attorney will ensure that you leave with the answers you needed and you don’t forget anything important. You will also want to be sure to bring any relevant paperwork or court documents with you as well, if there are any.

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Mary McMullen

Paralegal