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Email UsFREQUENTLY ASKED QUESTIONS1. WHAT IS AN UNCONTESTED DIVORCE? An uncontested divorce is the legal termination of a marriage where both parties agree on the division of all of their assets and debts. It can be done even if the parties have minor children, real estate, retirement plans, or substantial debts. Our firm prepares a document setting out the details of the agreement that must be signed by both parties. If one party will not sign this document, then the divorce is no longer uncontested and that party must be served with legal process either by having the divorce materials delivered to him or her in a legally proper manner or, if that person cannot be found, then by publishing the proper information in a local newspaper. If that party does nothing after being legally served, then a divorce can be granted, property and debts divided, and child custody, parenting time, and child support determined. This type of divorce is called a default divorce. Our office will do default divorces but they are usually more expensive than uncontested divorces. 2. WHAT IS AN EMERGENCY DIVORCE? Kansas law has a sixty (60) day waiting period from the time that the petition for divorce is filed until the divorce is granted. This time period can be eliminated in an uncontested divorce under some special circumstances such as financial considerations, income tax considerations, remarriage, moving to another location, military postings, immigration situations, emotional stress, and the possibility of being legally liable for the other party’s medical bills. If the circumstances are proper, the Court can grant the divorce immediately. 3. WHAT IS AN ANNULMENT? Kansas law allows for an annulment if the marriage was void for any reason (such as one of the parties being married to someone else); voidable because of fraud (such as one of the parties stating that she or he could be a parent when that party knew that he or she could not have a child); or there was a mistake of fact, lack of knowledge of a material fact, or any other reason justifying rescission of the marriage. An annulment does not undo any of the past events related to the marriage so there is no need, for instance, to change tax returns already filed. An annulment is just like a divorce except for the grounds ending the marriage. There is no requirement for either party to be a resident of Kansas and there is no waiting period from the time when the petition for annulment is filed until the annulment is granted. 4. DO I HAVE TO GO TO COURT? Kansas law allows one of the parties to testify under oath by signing a sworn statement before a notary public rather than going to court and testifying before a Judge to provide the proper information to the Court for the granting of a divorce or annulment. In the majority of uncontested divorces or annulments that are handled by our office, the entire process requires only one appointment as we go to court for you and will mail the final papers to both parties. 5. HOW CAN WE DIVIDE REAL ESTATE? Kansas law allows for the division of property and debt in a manner that is “valid, just, and equitable” and sets out ten (10) factors for this division, the last being “such other factors as the court considers necessary to make a just and reasonable division.” Furthermore, often real estate has a mortgage against it and so the real value of the real estate is the difference between the fair market value and the mortgage. Other considerations are the costs of sale such as various inspections and realtor commissions. There are several ways to divide the real estate. It can be sold and the profit, if any, divided as agreed upon by the parties. It can be occupied by one party until certain events occur and then either sold with the profits or other assets being divided as agreed upon by the parties. It can be transferred immediately to one of the parties outright and the equity, if any, offset by the other party getting other assets of the marriage or the party who is getting the real estate taking more debt to offset its value. 6. HOW CAN WE DIVIDE I.R.A.’S, 401(k)S, AND PENSION PLANS? First there is one kind of assets called “deferred income assets.” Some of these are Individual Retirement Accounts which represent funds that the parties put aside for retirement and deferring income taxes. Another is called a “defined contribution” plan or a 401(k) plan. These plans are offered through an employer. There can be employee contributions which are tax free at the time the contribution is made. The employer usually matches these contributions using special formulas. Both I.R.A.’s and defined contribution plans usually have values that are reported on a daily, weekly, monthly, quarterly, or annual basis based on other assets such as stocks and/or bonds that have been explicitly set aside to fund these accounts.
There is a third type called a “defined benefit” plan or a pension plan. These plans are offered through an employer and usually do not require employee contributions but generate monthly benefits to the employee after the employee’s retirement based on the employee’s wages and length of employment. It is very difficult to value these assets because of all of the uncertainty of future wages, length of employment, and life expectancy. Federal law requires that the employer set aside some assets for these plans but the employer need not completely fund these plans. It is extremely difficult to place a value on “defined benefit plans.” All three of these types of assets can be divided between the parties but a special kind of document called a Qualified Domestic Relations Order is needed. Furthermore, there can be tax complications because all three of these types of plans defer income taxes to a later time. There are several ways to divide these types of plans. I.R.A.’s and defined contribution plans can be divided immediately as agreed upon by the parties. Consideration for offset can include the other party getting other assets of the marriage or the taking on of more debt. In such cases, the Qualified Domestic Relations Order is necessary. Any division of a defined benefit plan must also be through a Qualified Domestic Relations Order but the asset cannot be distributed immediately because this type of plan does not generate any income until the retirement begins. 7. CAN THE SAME ATTORNEY REPRESENT BOTH PARTIES TO THE SAME ACTION? It is unethical for one attorney to represent both parties in a divorce or annulment. Our firm generally represents the party that first contacted us. However, if that client informs us that he or she wants an uncontested divorce then we will listen to the concerns of both parties on the details of dividing the assets and debts of the parties. It might be necessary for the parties to sign a Conflict of Interest Agreement, making sure both parties understand the position of the law firm during the pendency of the divorce proceeding. If the parties cannot reach a written agreement that is acceptable to each of them, then our firm will not represent either party as the matter is then contested. 8. WHAT ARE THE RESIDENCY REQUIREMENTS FOR DIVORCE AND ANNULMENT? One of the parties must have been a resident in any Kansas county for sixty (60) or more days. There is no residency requirement for either party for an annulment. 9. WILL CHILD SUPPORT BE ORDERED IN EVERY CASE? Kansas has a set of child support guidelines that are used to determine child support. However, these are only guidelines and there are many reasons why the actual child support can vary from the guideline amount such as travel expenses, time that a child spends with the other parent, tax considerations, and overall financial circumstances. 10. WILL TEMPORARY ORDERS BE FILED IN AN UNCONTESTED DIVORCE OR ANNULMENT? Generally speaking, Temporary Orders are not filed in an uncontested divorce or annulment action because there should be no need to have explicit orders governing the behavior of both parties signed by a Judge, filed with the Clerk, and personally served on the other party if the two parties are cooperating in the divorce or annulment process. Of course, Temporary Orders are often very appropriate in many separations because tensions between the parties can be very high during this process. It should also be remembered that often even highly emotionally charged separations can have the financial and legal aspects resolved by the parties without appearing in front of a Judge. If there is any concern that one party will take advantage of the negotiating process to terminate health insurance, cut off utilities, transfer funds from accounts, not pay agreed upon support or follow agreed upon parenting time with children, or generally harass the other party, then temporary orders should be and will be filed. Vega Law Offices, LLC
Gardner, Kansas Family Law Attorney
821 N. Sumac Street
Gardner, Kansas 66030-2211
Phone: 913-856-7596
Fax: 913-440-4676
E-mail Us Vega Law Offices, LLC of Gardner, Kansas, provides divorce and family law, small business law, tax law, estate planning and traffic violation defense. We represent clients throughout the entire state of Kansas, including Johnson County, Wyandotte County, Miami County, Douglas County and Franklin County, and the communities of Olathe, Paola, Lawrence, Ottawa, Louisburg, Leawood, Edgerton, Fairway, Lenexa, Merriam, Mission, New Century, Overland Park, Roeland Park, Shawnee, Spring Hill, Stanley, Stilwell and Westwood.
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