Frequently Asked Questions
 About
 Uncontested Divorces & Annulments

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5. How can we divide real estate?

6. How can we divide I.R.A.’s, 401(k)’s and pension plans?

10. Will Temporary Orders be filed in an uncontested divorce or annulment?

11.  Does an Income Withholding Order have to be issued to an employer for child support payroll deductions?

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, parental access, and child support determined.  This type of divorce is called a default divorce.  Our office does default divorces but they are usually more expensive than uncontested divorces. For more information on Uncontested Divorce in Kansas, click here.
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2. What is an emergency divorce?

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 firm, the entire process requires only one appointment as we go to court for you and will mail the final papers to both parties.
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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 including 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 or the party getting the real estate taking more debt.
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There are other kinds 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 and there can be employee contributions which are tax free at the time the contribution is made.  The employer usually matches these contributions using formulas.

Both I.R.A.’s and defined contribution plans usually have values that are reported on a regular 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, employment history, 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 with a document called a Qualified Domestic Relations Order.  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 with consideration for offset with the other party getting other assets or the party getting the plan taking 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.
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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. 
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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 co-operating 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 parental access to children, or generally harass the other party, then temporary orders should be filed.

11.  Does an Income Withholding Order have to be issued to an employer for child support payroll deductions?

If both parties agree that there is no need for an Income Withholding Order, we can put that language in the order. This would allow the paying parent to send the child support payments to the Kansas Payment Center (KPC) rather than have their employer withhold it from their paychecks through an Income Withholding Order.