5.
How can we divide real estate?
6.
How
can we divide IRA’s, 401(k)’s and pension plans?
7. Can one
attorney represent both parties?
8.
What are the residency requirements for divorce and annulment?
9. Is child support required?
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?
1. 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, 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 has a sixty (60) day waiting
period from the time the petition for divorce is filed until the divorce
is granted. This time period can be eliminated in an uncontested divorce
under certain 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 and 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 the petition for annulment is filed until the annulment is
granted. Our office only files uncontested annulments where both parties
agree to all parts of the annulment.
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 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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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.” Often real estate has a mortgage against it 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 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
receiving other marital assets or the party who is receiving the real
estate taking on more of the marital debt.
6. How can we divide IRA’s, 401(k)’s and
pension plans?
There are other kinds of assets called
“deferred income assets.” Some of these are Individual Retirement
Accounts (IRA’s) which represent funds that the parties have 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 some sort of formula.
Both IRA’s and defined contribution plans
usually have values that are based on other assets such as stocks and/or
bonds that have been explicitly set aside to fund these accounts.
Typically these plans will issue account statements on a regular basis.
There is a third type of plan 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 upon 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.
IRA’s can be divided immediately as
agreed upon by the parties by stating in the divorce decree how the
account is to be divided and providing a certified copy of the decree to
the company administering the IRA.
Defined contribution plans like 401(k)
plans can be divided immediately as agreed upon by the parties by using
a document called a Qualified Domestic Relations Order (QDRO). Typically
a spouse who is not the plan participant can opt to either take his or
her share in a lump sum distribution with income taxes withheld or roll
it over into another plan such as an IRA or their own 401(k) plan, in
which case no taxes are withheld.
Division of defined benefit or pension
plans must also be done through a Qualified Domestic Relations Order but
the asset cannot be distributed immediately because this type of plan
does not generate any income until retirement begins.
There are a number of ways in which the
parties can divide these deferred income assets. They can agree that
each of them should keep their own plans. They can add up the total
value of all plans and determine an amount that should be paid out of
one party’s plan to the other to equalize the assets. They can decide
who keeps what based on the division of other marital assets as well as
the marital debt. They can determine the percentage of a plan that the
non-participant spouse should receive based on the length of the
marriage as compared to the total length of time the participant spouse
has been enrolled in the plan.
In an uncontested situation there are no
strict rules about how these assets should be divided so the parties can
agree on whatever is best for their particular situation.
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7.
Can one attorney represent both parties?
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 our firm that he or she wants an uncontested divorce where we
will listen to the concerns of both parties on the details of dividing
the assets and debts of the parties, we will do so. One of the reasons
that we developed this web site is so both parties understand the
process. If the parties cannot reach a written agreement that is
acceptable to each of them then the matter is considered 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 or else
stationed at a Kansas military base for sixty (60) or more days before a
divorce can be filed by our office in Sedgwick County, Kansas. There is
no residency requirement for either party for an annulment.
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9. Is child support required?
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. However, 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 child support is ordered, the Court
Trustee’s office is charged with the task of monitoring, enforcing and
collecting child support on behalf of the custodial parent. However, a
fee of 2.5% of all child support going through the system is diverted
from the custodial parent to the Court Trustee’s office for these
services. Additionally, employers are allowed to charge the paying
parent a fee of up to $10.00 per month in order to comply with the
Income Withholding Order that is issued by the Court Trustee’s office.
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.
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