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

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

 

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.

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