Separation Laws: An Overview for Kansas Residents
While the term "separation" is often used generically to refer to a period of time spouses live apart, the laws governing separation in Kansas are very specific. Kansas classes separation into two categories: judicial separation and separate maintenance. Under Kansas law, there is currently no legal requirement that spouses live apart for any particular length of time in order to be eligible for divorce. The waiting period that once existed in Kansas was eliminated by the Kansas Legislature many years ago. However, community property acquired during or after the end of a marriage is subject to a two-year time limit on the court’s ability to divide that property when the parties have lived apart for more than two years, making a long separation from spouse ill-advised. Absent such an important community property issue, or under some rare circumstances not commonly encountered in practice, there is no reason to seek a judicial separation with the goal of using that as a basis for filing a divorce later.
In Kansas, judicial separations refer to those situations, by agreement of the parties or otherwise, where a Kansas court has intervened and ordered the spouses to live apart pursuant to the court’s authority under K.S.A. 60-1601. The statute empowers the court to order one spouse to pay alimony and child support pending final resolution of the issues of divorce or separate maintenance. This type of judicial separation is intended to preserve the spouse’s status as a married person under state and federal law for some limited purposes , such as receipt of health care benefits and eligibility for inheritance as a surviving spouse. For all other purposes, separation means unrelated to a judicial decree of separation, Kansas law affords periods of separation no significance whatsoever.
Separate maintenance refers to those situations, by agreement of the parties or otherwise, where a Kansas court has intervened and ordered the spouses to legally end their marriage, and provided for division of property and payment of alimony and/or child support as a part of that legal proceeding, but has not formally entered a decree of dissolution of the marriage (divorce). A judicial decree of separate maintenance addresses all the issues involved in a divorce, but acknowledges the marriage still exists. The only fundamental difference between the termination of a marriage by way of separate maintenance instead of a divorce is that a decree of separate maintenance does not end the marriage. It stops the clock on the accrual of alimony and child support, but does not cover periods of time prior to the date the court orders the separate maintenance, whereas a judicial decree of divorce does.
What Qualifies as Grounds for Legal Separation in Kansas?
Couples filing for legal separation in Kansas need to demonstrate legal grounds for such a move. Kansas law differs slightly from many other states where the laws of separation and divorce are often very similar. Kansas has two different outlets for separating from an unfit spouse: the legal separation and the divorce. Kansas, however, is one of several states that does not necessitate spousal misconduct as grounds for either a separation or a divorce. That said, Kansas law does require sufficient cause for legal separation. But what constitutes sufficient cause can be open to interpretation.
To file for legal separation in Kansas, couples must live separate and apart for at least 60 days prior to the hearing. The same holds true for divorce filings. Essentially, there is no significant difference between the two in Kansas. Whether couples wish to legally separate or terminate their marriage is largely a personal decision. As in many other states, Kansas has waiting periods in place for both separation and divorce. The time frame for legal separation will be the same for divorce at six months. Consequently, if a couple chooses to file for separation, it may have no effect on the divorce if the reconciliation is unsuccessful.
As mentioned above, Kansas law does not require that fault be demonstrated for a separation or divorce. It is possible for a spouse to obtain a legal separation without presenting evidence of misconduct on the part of the other spouse. A spouse that simply wants to pursue a legal separation does not need to demonstrate that the other spouse is unfit. In general, a simple life circumstance is all that is necessary for a legal separation. Moreover, it is entirely feasible in Kansas for a couple to file for a legal separation and later convert the separation into a divorce. To do so, couples must invoke divorce proceedings at the time or after a motion for legal separation is filed. The transition to divorce will have the effect of tolling the timeframe for divorce.
How to File for Separation in Kansas
Filing for separation in Kansas is a legal process that formalizes the end of a marriage or domestic partnership. The process is similar to divorce, but with some variations. Here’s a breakdown of the process for filing for separation in the state of Kansas:
Filling out and Filing the Petition
After deciding to separate, one or both partners must file a petition. The petition should include:
• The names and contact information of both partners;
• The date of marriage or domestic partnership;
• Details of the separation (reason(s), duration, responsibilities for the separation proceedings);
• Requests for temporary relief, child support, or any other arrangements;
• Any other relevant information pertaining to the separation.
A filing fee must accompany the petition and it’s preferable to file the petition at the courthouse in the county where the couple last resided together. The petition may be filed online in some jurisdictions as well.
The Hearing
Similar to the filing of a divorce petition, Kansas requires a hearing for any separation petitions. The petitioning spouse must give notice to the other party as to the date and time of this hearing, as well as to all other parties named in the petition. After the hearing, which may be scheduled in less than 60 days after filing the petition, the judge decides whether to grant the separation and the terms. It is important to understand all the options available and contact an attorney with any questions.
Finalizing a Separation
When approved, a separation may be finalized in a settlement conference or by a trial. At either venue, the judge reviews the separation request and any other relevant information to determine the outcome of the separation. Similar to divorce proceedings, the separation may involve the division of property/assets, custody of children and other issues. It is recommended that parties agree on the outcomes before the case is finalized.
Preparing an Agreement
The judge grants a rescheduled 90-day review for those who request it. Future hearings may be scheduled to finalize any outstanding issues. However, partners may also resolve these issues out of the courtroom with an agreement that addresses custody, property division and all other relevant issues surrounding their separation. Once both parties agree to the terms of their separation, the parties may complete an agreement and submit it to the court.
Finalization of the Separation
In Kansas, approved agreements go before a judge for final approval, which is typically granted. However, the court may schedule a hearing to obtain additional information from either party. In this case, the judge leaves open the separation request until all required information is submitted. Once the required information is provided, the judge reviews it and finalizes the separation, adopting the previously made agreement as a mutual order of the court.
Once approved, judges sign the order of separation and issue a copy to each party involved and to their attorneys if they have one. Separations ordered by the court are legally binding and as such, each party must comply with all terms outlined in the separation agreement.
Rights and Responsibilities When Separating in Kansas
During a separation period prior to or during a divorce, the law grants certain rights and imposes certain responsibilities on each spouse in Kansas. A key consideration is the issue of financial support – often in the form of child support, alimony/spousal maintenance and temporary possession of the marital residence.
Kansas Child Support Guidelines: Commonly, the parties have minor children together. Each person has an obligation to support the minor children financially. The Kansas Child Support Guidelines provide a formula for setting child support, using both parents’ gross income and certain mandatory deductions. Each party is entitled to limited discovery prior to an evidentiary hearing and/or trial to determine the amount of child support to be paid and received by each party. Typically, this type of discovery will include limited interrogatories, production of the last three (3) years of tax filings and a compensation case history.
Once the parties adhere to a proper formula or calculation, then issues of payment and receipt come in to play. Despite the need for periodic petition to the court, the spouse who does not have the overnight placement of the minor children (i.e. the "non-custodial parent") typically pays child support to the spouse with the minor children (i.e. the "custodial parent"). Deviations from the Kansas Child Support Guidelines are rare, but will be ordered for good cause shown by the Court. Once expenses are considered, a credit factor against the obligated spouse’s child support will be given for each overnight that the minor child/ren spends with that non-custodial parent.
State and Federal Tax Considerations: As stated above, the child support obligation is based upon a formula that uses gross income less certain mandatory deductions such as FICA/SECA and other deductions required by law. The net amount of obligations, commonly deducted, can be shortened further by matters of child tax credits, health insurance costs associated with the minor children as well as child care. Of note regarding the Kansas Child Support Guidelines is the fact that federal tax considerations are generally not used when determining gross income for purposes of estimating support obligations. This is partially by design and partially by the reality of the federal government manipulating certain tax laws from year to year which can greatly affect income levels of individual parent’s.
The only time that federal tax considerations come in to play in family law matters is if one party does not have custody of the minor children, and thus is classified as the "non-custodial parent." Such a spouse may be entitled to claiming the minor child/ren as a dependent and/or head of household for tax purposes. The ability to do so can be contentious depending on who is the "primary custodial parent," as defined by the IRS. This definition is entirely different from what is a "primary residential custodian" or "primary caregiver" for purposes of determining custody in a divorce or divorce and separation case. For instance, each party can have equal time with the minor children, however only one of them may be able to legally file a tax return as head of household. A temporary family law attorney with experience in both courts and administrative matters should be consulted to address related issues.
Alimony: Divorce laws in Kansas allow for a court to order alimony or spousal maintenance. Alimony, or spousal maintenance, is calculated differently from child support obligations. Typically, there are multiple variables, court cases and procedural steps in determining what alimony, if any, will be awarded in a divorce, divorce and separation, or hybrid family law matter. Moreover, alimony is not commonly awarded to the custodial parent, though the custodial parent may be required to pay alimony during the pendency of the divorce and/or separation action. To qualify for alimony, the spouse must demonstrate a need and the spouse must have the ability to pay, among other factors.
Divorce is rarely ever simple, and managing everyday matters such as co-parenting does not lessen the stress inherent in the process of separating from a spouse. Seeking legal advice of counsel should be a priority for those facing separation in the state of Kansas.
Separation Agreements in Kansas: What You Need to Know
In a Kansas divorce, separate assets must be divided between the spouses but they may also agree whether the Kansas Court is to do so or make a different arrangement. In other words, if the parties to a divorce can agree on issues of asset division, debt responsibility, child support and visitation rights regarding their children, such agreement can be drawn up as a separation agreement and approved by the Kansas Court with or without modification before the decree is entered. The decree can then be entered according to the separation agreement and enforced just as if it were part of the decree itself . The separation agreement is not valid, however, unless a married person had a residence in Kansas for six months or a married person is stationed under military orders at a duty station in Kansas and had a residence at some other location immediately preceding the duty station. A person can sue in Kansas Court to obtain a decree to enforce a separation agreement if a spouse does not perform according to the agreement. It permits a Court to require one spouse to take action to comply with the terms of the agreement.
The Impact of Separation on Children in Kansas: What to Expect
When parents divorce or legally separate, they must make decisions about issues such as child custody and support. Kansas courts determine custody and visitation based on the best interests of the children. In general, you can presume that children will fare best if both parents are involved in their lives as long as all things are equal, especially if they have lived together for most of their lives. In many situations, the children will spend time with both parents, and there may not be a significant difference in time spent with each parent during the week. Generally, there will be overnights with both parents on some weekends.
Support is typically calculated according to the Kansas Child Support Guidelines. The guidelines take a number of factors into consideration, including the number of kids, parents’ income, individual daycare costs, individual medical insurance costs, and other factors such as child support or alimony awarded to the other spouse.
Parents who are going through divorce or separation often have a difficult time committing to the arrangement, especially when discussing the child’s residential parent. Parents know that if you have sole primary placement of the child, you will typically have exclusive decision making authority over where they go to school, the medical decisions for that child, and the other daily decisions about that child’s life, even if visitation schedules are equal. It is critical when going through the process of a separation or a divorce, to have an understanding about the impact of the changes on the life of the child. We come across situations where we have to explain to a client the permanent future effects on a child if this is the custody plan.
Children have so much to adjust to; a split household, divided loyalties, etc. They shouldn’t have to deal with the financial issues or other adult issues involving the parents as well. So while it may be frustrating for the new spouse or significant other, or the adult, to "go along" with a decision that they aren’t completely comfortable with out of respect for the child’s relationship with their parent, this is what the best interest of the child looks like. If at all possible, the adults need to put their individual differences aside for the sake of the child.
When to Convert a Separation to Divorce in Kansas
A legal separation by Kansas law can be converted into a divorce decree only under very limited circumstances. A petition to convert a legal separation to a divorce is not the same as a divorce case, in that the parties already have a legally entered decree in place. Instead, the case usually proceeds on an unexplained "motion," with the short time and fewer witnesses usually being the extent of the effect on the court calendar. The time frame in which the parties may file a motion to convert a legal separation to a divorce, however, is approximately three (3) months from the entry of the Decree of Legal Separation.
A party seeking conversion must show they have been residing in a state other than Kansas for the previous 60 days, and that at least 90 days have expired from the date of the separation. The period of residence in Kansas is measured from the date of the entry of the legal separation. The Court, having received evidence on the motion to convert, shall order the parties be divorced, if so requested.
In the event that one of the parties to the Decree of Separation is now deceased, the body of law surrounding death and legal separation envisions first the entry of the Decree of Separation, upon which the assets of the marital estate are fixed. Upon entry of the Decree of Separation, the Court has no further jurisdiction in relation to the property of the separation estate, beyond that pertaining to custody and child support. Therefore an action for divorce cannot be maintained post-death, as the probate court is the only one with jurisdiction over death proceedings.
Pros and Cons of Separation Compared to Divorce in Kansas
Separation may be a good first step for many couples contemplating divorce. However, it does have its pros and cons. In terms of emotional benefits, separation allows couples to take time away from each other to figure out whether their marriage can be salvaged or if it would be better to divorce. Being physically apart also allows you and your spouse to work on yourselves as individuals and gives each of you time to live life on your own before making such a big decision as divorce. Separating before divorce can also help you legally before filing. Since Kansas is an "equitable distribution" state, a judge is not required to split marital assets and debts down the middle. A judge can take other factors into account when dividing property, such as when the "separation of the parties" took place. If one person left the home and/or started acting in a way independent of the marriage or committed some type of marital misconduct such as adultery, the judge may consider this in deciding how to divide the property. However, there are disadvantages to separation as well. First of all, it isn’t legally binding in Kansas . This means that if one spouse spends a lot of money during the term of the separation, the other spouse’s income could be at risk. Furthermore, the same issues that complicate the process of divorce are still present during separation: custody, support, property division, etc. All of these issues still have to be resolved either before or during a divorce. For most couples, the best way to handle these issues is through divorce. In terms of finances, separating while under one roof can actually make things harder. Although you may not get the benefits of being treated separately as two households, you will have to take more care to keep assets and income separate. Otherwise, the court could assume that shared money belongs to both spouses and take that amount into account when dividing things during a divorce. When it comes to custody, separation can complicate the situation further, especially if you and your spouse are still living together. Sharing a home with a child is one thing, but being separated while still essentially living as a couple can cause further tension between you and your spouse. This could then affect your custody efforts, as well as the child’s emotional health during the process.
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