Law Office of Linda K. Howerton219 W. 15th Street
Wellington, KS 67152
(620) 326-3774
Divorce is usually a difficult and stressful time. The following information is presented in hopes that it will relieve some anxiety and help you understand the steps involved.
Most actions for divorce in the State of Kansas are filed on the grounds of incompatibility. In filing the divorce action, the petition only needs to state the parties are incompatible. It is not necessary to allege or prove such traditional grounds as adultery, cruelty, physical abuse, etc., even though such conduct may have occurred. Occasionally one spouse will state, "I will not give you a divorce." A spouse may object to the divorce and delay the process, but one spouse cannot prevent another spouse from being granted a divorce. The final authority to grant a divorce belongs solely to the court; the parties involved do not have the power to give or not give a divorce.
Either you or your spouse must have been a resident of the State of Kansas for at least 60 days before the filing of the Petition for Divorce. Usually, the divorce action is filed in the county in which you reside or your spouse resides.
Legal fees are based on the time actually spent on your case multiplied by an hourly rate. Each divorce is unique, so there is no standard fee. A retainer is required after the initial interview and full payment by the time of the final hearing.
There is no legal significance to whether the husband or wife files the Petition, although there may be procedural and tactical advantages for the person who files first. One advantage is that the person who files first can get an order removing the other spouse from the joint residence. The first step is to complete a Domestic Relations Affidavit, so your attorney has the necessary information to begin work on your case. The attorney will then draft and file a Petition which asks the court for a divorce.
Temporary orders may be issued on the day the divorce is first filed. These orders can address various issues concerning custody of the children, possession of property, a restraint from abuse or harassment by your spouse, etc.
In the most common method of notice, the Sheriff will deliver a copy of the Petition and temporary orders, if any, to your spouse. If your spouse has already filed for divorce, you will receive or have received the Petition for Divorce. Please be sure to bring a copy of the Petition for Divorce to your attorney as soon as possible, as it contains vital information.
Kansas law requires that there be a 60 day cooling off period before a divorce can be finalized. The 60 day period starts when the spouse is served the petition.
If you feel it would be detrimental to your health for the divorce to take that long, you may file for an emergency divorce. Please realize you can get a divorce quickly this way, but there will probably be remaining details to resolve before the matter is finished.
Even after the 60 days are over, the divorce may not be finalized depending on the extent of the property involved and controversy over the various issues.
In Kansas, all divorcing parties with children must attend a Children of Divorce Workshop. The workshop gives you some ideas on how to lessen the trauma of the divorce on your children. If both parties do not attend the workshop the judge may not grant the divorce. Information about where and when a workshop is held is available from the clerk of the court or your attorney.
Parents with primary residential custody of children are entitled to child support. However, it may be several months before it is actually received. Many procedural events have to transpire first.
The degree of cooperation between you and your spouse regarding matters of property division and parenting time has a direct effect on the amount of time your attorney spends on your case and therefore the fees charged. If you and your spouse can agree on various issues, let your attorney know. Agreements can become part of the court orders. You and your spouse have to live with the court orders, so your input is vital. If the court finds the agreement reasonable, it can be ordered.
Once all the details are agreed upon or determined by the judge, final orders will be issued and a copy will be mailed to you. You are not allowed to remarry for 30 days after your divorce is finalized.
Legal separation is formally called "Separate Maintenance." It leaves the parties married to each other while providing a court order covering such subjects as property division, ongoing child support, custody, and spousal support. In some limited situations, it may be desirable as an alternative to divorce. Separate Maintenance is usually not recommended because it is frequently a prelude to divorce and increases the total cost of legal services. However, it is appropriate in some situations. If you are not sure you want a divorce, we will usually recommend counseling services to see if the martial problems can be worked out. Separate Maintenance should not be filed solely because you need time to determine whether or not you want to be divorced.