Kansas and Missouri Divorce Overview
Divorce OverviewA divorce can be one of the most emotional and stressful events in a person’s life. The decision to divorce is a very personal one and in Kansas or Missouri the only requirement is one spouse says, “I’m done.” This is because both Kansas and Missouri are generally no-fault divorce states. This means that there is no fault-based ground for divorce which entitles someone to dissolve the marriage. For example, neither party must prove the other is cheating or hiding money or has failed to perform a material marital duty. While the law still allows for fault-based allegations regarding the reason for divorce, there is no fault-based requirement. The only required allegation a party must make is that “the marriage is irretrievably broken” and because of this “there is no reasonable likelihood the marriage can be preserved.” With that, a court will allow you to request a dissolution of the marriage and ultimately divorce you.
Uncontested DivorceAn uncontested divorce is a somewhat simplified divorce proceeding whereby parties often enter into the case with prearranged agreements for the Court to approve. Courts in Kansas and Missouri encourage divorcing parties to reach global agreements between each other regarding custody, parenting time, child support, spousal maintenance and property and debt division. These agreements can be reached with or without the assistance of individual counsel.
Contested DivorceWhile married couples get divorced every day without attorney involvement, only spouses who are truly transparent and amicable with each other can achieve a fair just and equitable result on their own. Even then, many divorcing couples who do agree often enter into their agreements without contemplating the future effect on them and their children. Often, attorney involvement is necessary due to the skill and expertise needed to fairly resolve a divorce case as well as the additional fact finding and enforcement tools an experienced and dedicated divorce attorney can provide.
Filing the ActionWhether contested or uncontested, every Divorce case starts with a Petition for Divorce (KS) or Petition for Dissolution of Marriage (MO).
Petition and JurisdictionThe divorce begins when one party files a Petition for Divorce (KS) or a Petition for Dissolution of Marriage (MO). This is the initial filing that gets the case started. This document names the parties involved and will be captioned in the District or Circuit Court in which it was filed. Within the Petition a petitioning party must allege that the Court has both subject matter jurisdiction over the issues and personal jurisdiction over the parties. In that event, the case proceeds. Subject matter jurisdiction means jurisdiction over the cause of action, i.e. the dissolution of the marriage, and the power of the Court to hear and make determinations regarding the same. Our courts are given the power to hear certain actions by our state constitutions and state statutes. Personal jurisdiction means jurisdiction over the parties to the action. This is the Court’s power to obligate a party before it to certain orders in determining the action. Personal jurisdiction is obtained via residence and service. For example, typically a Petition is filed in the District or Circuit Court of the County in which one of the parties resides. At least one of the parties must have lived within that state for at least 60 days (KS), or 90 days (MO), prior to the filing of the Petition, and, at least one party must currently reside within the county in which the Petition is filed. For example, the Johnson County Kansas District Court would have personal jurisdiction over a petitioning party who is a resident of Johnson County Kansas and who has lived in Kansas for at least 60 days prior to the filing of his or her Petition. The Court obtains personal jurisdiction over the petitioning party’s spouse once that spouse is personally served with proper notice of the action. Often, the responding spouse will also be a resident of the same state and county in which the Petition was filed. Regardless, personal service of notice of the action is required whether the responding spouse lives down the street or in Nevada. You can obtain service of an out-of-state resident by personally serving your spouse while he or she is within the borders of our state, or outside our borders through our state’s long arm statute. There may be situations where filing for divorce in a county or state in which the other party resides is either a benefit to your case or required by a jurisdictional body of law such as the Uniform Child Custody Jurisdiction and Enforcement Act. In certain cases, the choice of forum or venue can be an integral piece of your litigation plan. Consult a Fairbanks DeMarco divorce attorney for more information. In short, the Petition submits the cause of action to the Court’s jurisdiction, names the parties involved, and lists the issues to be determined, i.e. whether the case does or does not involve minor children, whether custody and support determinations need to be made, whether spousal maintenance is at issue and of course, that the marital assets and liabilities of the parties should be equitably divided. There are other additional documents which are commonly filed with a Petition for divorce. In Kansas, every party in a divorce or domestic relations action must file a Domestic Relations Affidavit. In Missouri, every party in a divorce or domestic relations action must file a set of two documents, the 1402(a) and 1402(b), commonly called the “1402’s”
Domestic Relations AffidavitIn Kansas, This document is required of all divorcing parties whether they have minor children or not. A Domestic Relations Affidavit (DRA) is a document you prepare with the assistance of your attorney and includes a host of personal financial information as well as marital asset and liability information. In your DRA you will include indications regarding your age, your address, your children, their ages, with whom the children reside, your gross annual income, your monthly household operating expenses, any ownership interest you may have in real estate, the value of your retirement accounts or investments, your vehicles and any other valuable personal property which will require division or allocation. As parties’ finances and situations change so does their DRA. In many cases a divorce party’s DRA will be amended 2-3 times to account for changing financial circumstances. Before trial, it is typical for the Court to order both parties to update their DRA’s, especially if there have been significant changes in employment, expenses, income or ownership interests. In short, a Domestic Relations Affidavit should provide the Court with all facts and figures necessary to accurately determine child support, spousal maintenance and to divide the marital estate in a fair, just and equitable manner.
1402’sThe Missouri equivalent of the Domestic Relations Affidavit is a set of two documents:
- 1402a – Statement of Marital and Non-Marital Assets and Debts, and;
- 1402b – Income and Expense Statement
Serving the RespondentThe party who files the action is deemed the Petitioner in the case. The other parent is deemed the Respondent in the case as that party will be responding to the Petition. Once a case is filed the Respondent must be personally served with process. This is a formal requirement intended to give notice to the party against whom the divorce case was filed. Once the Respondent is personally served with notice of the divorce action, he or she then has 21 days (KS), or 30 days (MO), to file an Answer to the Petition. This means if you anticipate having a divorce action filed against you, you will be served with notice of the action typically in one of three ways: (1) personal service by private process server, (2) personal service by county sheriff’s deputy, or by (3) executing a voluntary entry of appearance and waiver of service of summons. This document is typically drafted by the petitioning spouse’s attorney and provided to the Respondent by the petitioning spouse. In most cases the party against whom the action was filed will be served personally with divorce papers via option 1 or 2 above. However, sometimes there is great value in choosing to start the action in a less confrontational manner. Parties who opt to have their spouse execute a voluntary entry are typically parties who believe their spouse will be reasonable and appreciate the extra step. Once the Respondent signs the document in the presence of a notary, that document may be filed into the divorce case and the personal service requirement is at that time waived. Once service is “perfected” using one of the three options above, the clock starts on the 21/30-day time frame a Respondent must file his or her Answer to the Petition. Perfected service also starts the clock on the mandatory “cooling off period”, which is the number of days a Court must wait to officially resolve and dispose of the divorce action. In Kansas this waiting period is 60 days. In Missouri the waiting period is 30 days. Absent an emergency this required waiting period is strictly adhered to, even in uncontested matters.
Answer and Counter-PetitionIn Kansas, the Respondent has 21 days after being served to file an Answer to the Petition. In Missouri the Respondent has 30 days to Answer. This is the stage at which most new parties begin searching for legal counsel. Whether you hire counsel or choose to represent yourself the 21/30 day response time remains the same. In his or her Answer the Respondent will admit or deny each allegation in the Petition and generally request his or her preferred relief, i.e. joint legal custody and a fair just and equitable division of all marital assets and liabilities. Most of the time it is important to file as part of your Answer a Counter-Petition for divorce. This is especially true if you indeed want to be divorced as well. By filing a Counter-Petition with the Court you are solidifying that the case will remain alive even if the Petitioner at some point voluntarily dismisses his or her action.
Pretrial MotionsThere is a veritable unending list to the types of pretrial motions which can be filed during the pendency of a divorce action. The more common pretrial motions will be motions for temporary orders, motions to modify temporary orders, motions to compel discovery responses, motions for appointment of Guardian Ad Litem, motions for attorney’s fees and motions for enforcement or modification of temporary parenting time and support orders. In many cases there will be one or more hearings on temporary orders before the case is resolved.
Pretrial ConferenceIf the your remains contested, yet unresolved, your case will be set for a pretrial conference prior to scheduling the case for trial. The pretrial conference is a somewhat informal hearing at which counsels and the judge cover the issues to be tried and set clearly defined parameters for trial, including number of witnesses and length of trial, but also pretrial actions including additional orders for written discovery or pretrial depositions.
TrialA divorce trial will always be a bench trial to the District or Circuit Court judge, never a jury. If your case goes to trial, you are submitting all issues covered at pretrial to the judge for final determination and disposition.
Decree of DivorceThe Decree of divorce is typically the final document filed in your case. The Decree of Divorce officially dissolves the marriage and accounts for all additional orders associated with the case. Often, the Decree is accompanied by a Separation and Property Settlement Agreement which allocates for the fair just and equitable division of marital assets and debts, or a Final Parenting Plan and Final Child Support Worksheet which journalizes the orders of custody, parenting time and support associated with your minor children.
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