Blog Topic

Divorce is a Lawsuit
Posted by: Tim Keck
November 23, 2009

When one spouse files a Divorce against another what is really happening is that the filing spouse is filing a lawsuit against the other. Procedurally, a lawsuit for divorce is handled just like any other lawsuit; a car accident, a real estate contract or any other civil suit are the same as a divorce.

The divorce lawsuit is special in that you are trying to accomplish several things, depending on whether or not there are children involved. There are several issues in a dicvorce lawsuit: the dissolution of the marital entity, the division of property, the issues involving the children, maintenance (alimony), and the various issues encompassed within these general areas. In Kansas and Missouri, a Judge will decide the issues of a marriage unless the parties reach an agreement. Even then, the Court will make a finding that the terms of the agreement are legally enforcible and not unjust to one party or the other.

The standard a Judge must follow for each of these issues is different for each of the issues themselves.

First, the Court will determine whether to grant the divorce (dissolution). The Court must find, through the testimony of one or both of the parties that the parties are incompatible and the marriage is irretrievably broken. There are other grounds for a divorce, but this is the most common. As long a one party or both wants the divorce, then the divorce will happen and the marital entity will be dissolved.

The next issue is division of property. The Court will look at all of the assets and debts of the marriage, and whether they were gained or incurred during the marriage or not. Once the Court gathers all of the assets and debts, then the Court will make a determination, if called upon to do so, to determine whether the asset or debt is marital property or marital debt. Generally, all assets and debts are marital unless unusual circumstances exist. For example, if one spuse inherited money from a relative, and kept that money separated from the other spouse and did not mix that money, then it may be determined to be "non-marital" property and set over to the spouse who owns that property. The effect of this is that the martial estate shrinks, and there are fewer assets for the court to divide.

Once the Court determines the marital estate then the law requires the Court to make a "fair, just and equitable division" of the marital estate. This usually is, but does not have to be, a 50/50 split.

The next issues concern the children. For most issue concerning the kids, the Court will determine and decide these issues based on what the Court believes is in the childrens' best interest. The first question is what type of custody situation will the Court order. Generally, the Court will decide if there will be sole custody, or joint custody for legal purposes. Legal custody is set to determine who will have say over how the children are raised; where do they go to school, do they attend church, what doctors do they see, etc. Generlly, the Court will grant joint legal custody.

The next issue is parenting time. That is when do the children see their respective parent. Is it every other weekend? Every Wednesday? What about Holidays and Birthdays and Spring Break?

Child support is the next big question. Both Kansas and Missouri have Child Support Guidelines that determine the amount of Child Support paid by the non-custodial parent to the custodial parent. The formula is based on the income of the parties, the work related child care costs, health insurance cost associated with the children, and the amount of time the non-custodial parent spends with the chilren, thereby entitling the non-custodial parent to and adjustment for parenting time.

Other issue concerning the kids include who gets the tax exemption for the kids, who pays for college, who pays for  activties, etc.

Spousal Maintenance (aka Alimony) may be ordered under certain circumstances. The statute and local guidelines establish general concepts for when alimony is appropriate. Generally, there must be a discrepancy between the respective incomes of the parties. Alimony is usually between 15% and 22% of the differences n the gross incomes of the two parties.

This is meant to be a general description of the issues to be determined in a divorce case. For further information, please contact Arnold & Keck, LLC.

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