WHAT IS THE DIFFERENCE BETWEEN A LEGAL SEPARATION AND DIVORCE?
Legal separations and divorces are similar in a number of ways. For example, both actions will determine issues such as: property division, maintenance (spousal support), child custody, and child support. Even with these similarities, there is still one main difference between a legal separation and divorce: the marriage itself.
In a divorce, the marriage is dissolved, meaning the parties are no longer considered married. In a legal separation, the marriage is not dissolved, meaning the parties are still viewed as being married in the eyes of the law. This means if a spouse in a legal separation wishes to marry someone else, they will not be able to because the first marriage was not dissolved. Other issues which may be effected are inheritance and health insurance.
Because of the drastic differences between a legal separation and divorce, it is ideal to communicate your goals with an attorney to see which action would suit you best.
WHERE CAN I FILE FOR DIVORCE?
In order for a Missouri court to have jurisdiction over a Missouri divorce case, one of the parties generally must have lived in the State of Missouri for at least ninety (90) days before filing the divorce action. This is known as a residency requirement.
Example 1: Husband has lived in Jackson County, Missouri for one hundred days. Wife has lived in Johnson County, Kansas for thirty days. Husband would be able to file a divorce action in Jackson County, Missouri.
Example 2: Husband has lived in Johnson County, Kansas for forty days. Wife has lived in Clay County, Missouri for one hundred days. Missouri would be able to hear the divorce action because Wife meets the residency requirement.
Kansas divorce actions have similar residency requirements as Missouri divorce actions. However, in a Kansas divorce, one of the parties must have lived in the State of Kansas for at least sixty (60) days prior to filing.
Example 3: Husband lives in Johnson County, Kansas for sixty-one days. Wife has lived in Cass County, Missouri for ninety-one days. In this situation, both Kansas and Missouri could potentially hear the divorce action. If Husband files first, the divorce will be heard in Johnson County, Kansas. If Wife files first, the divorce will be heard in Cass County, Missouri.
WHAT STATE CAN DETERMINE CUSTODY OF MY CHILDREN?
Jurisdiction over child custody is unique to every case. When children are involved in divorce or paternity actions, the question arises of what State will be able to determine the custody of the children. Generally, the State with jurisdiction over the children is referred to as the child’s home state.
In order for there to be consistency in child custody jurisdiction, nearly all states have adopted some form of what is known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Missouri and Kansas have adopted nearly identical versions of the UCCJEA.
Kansas, like Missouri, will usually be the home state of children who are subjects of a divorce action when the children have lived in the State for the past six months prior to the commencement of the divorce. Also, if, for example, Kansas was the home state of the children within six months before the commencement of the divorce, but the children have since been absent from the State, Kansas may still be considered the children’s home state if one parent has continued to reside in Kansas. Missouri child custody jurisdiction determinations operate essentially the same way.
Example 1: Children are born to Husband and Wife in the State of Texas. The family then moves to Kansas City, Jackson County, Missouri and lives there seven months. Wife then files for divorce in Kansas City, Jackson County, Missouri. Missouri would be considered the home state for child custody considerations in the Kansas City, Jackson County, Missouri divorce action.
Example 2: Husband and Wife live in Lee’s Summit, Missouri, with their children. The family has lived in Lee’s Summit, Missouri for three years. Husband takes the children to Leawood, Kansas and lives there for two months. Wife stays in Lee’s Summit, Missouri and files for divorce in Jackson County, Missouri. Missouri could still be considered the home state for child custody considerations because Missouri was the home state of the children within six months prior to the Jackson County, divorce and Wife still resides in Lee’s Summit, Missouri.
Example 3: Husband and Wife live in Leawood, Johnson County, Kansas. They have a child. Husband then files for divorce in Johnson County, Kansas while the child is three months old. Although the child has not resided in the State of Kansas for six months prior to Husband filing for divorce in Johnson County, Kansas, because no other state would have jurisdiction over the three-month old child, Kansas will likely be the home state for child custody.
WHAT STATE’S LAW WILL APPLY TO MY CHILD SUPPORT ORDER?
In today’s mobile society, the question of what State’s law will apply to Court orders can be a source of confusion. When a State issues a support order, that State is said to have “continuing exclusive jurisdiction.” As long as one of the parties or the child lives in that State, it will continue to have exclusive jurisdiction over the order.
For example, assume Mother and Father were divorced in Leawood, Kansas in 2000 with one child who was three years old at the time of the divorce. Father was ordered to pay child support. Mother and child then move to Lee’s Summit, Missouri. The child turns eighteen and goes to college. Mother files a motion in Missouri to increase the child support now that she is paying for college expenses. Father files an answer to Mother’s motion, saying the child is now eighteen and therefore is emancipated. If Kansas child support law applies, then Father is likely correct. However, if Missouri child support law applies, Father may be incorrect and would need to continue paying child support. Which law would apply?
In response, Congress enacted the Uniform Interstate Family Support Act to provide guidance among the States for such complex issues. This Act provides that the law of the State which issues the child support order will control because they maintain continuing and exclusive jurisdiction over the order. This means, in the example above, Kansas law would apply and the child would likely be considered emancipated.
A word of caution. A State can lose continuing exclusive jurisdiction over support orders. One way this can happen is when none of the parties nor the child lives in the State that issued the order. Because of the complex nature of which State’s laws will apply and if a State maintains jurisdiction, it is important to consult with an attorney about any child support issues.
WHAT TYPES OF CHILD CUSTODY EXIST IN MISSOURI AND KANSAS?
In both Kansas and Missouri, child custody is divided into two categories: legal custody and physical custody. These two categories of custody are further divided into two types: joint and sole.
Kansas and Missouri define legal custody as the decision making rights and responsibilities for the children as they relate to matters of health, education and welfare. Joint legal custody is preferred over sole legal custody, and means the parents have equal rights in making decisions for the children. Joint legal custody also means that each parent has equal rights to access the children’s information regarding their health, education and welfare.
Sole legal custody means one parent has authority to make decisions affecting the children’s health, education, and welfare. This doesn’t mean the other parent has no say or input regarding these decisions. However, one parent is able to make the ultimate decision.
Physical custody refers to the time children are under the care and supervision of a parent. Kansas and Missouri differ slightly in the terms used to describe physical custody arrangements. Kansas uses terms such as “primary residence” and “sole residence,” while Missouri refers to “joint physical custody” and “sole physical custody.”
Joint physical custody or primary residence generally means that each parent will be awarded parenting time, although this does not necessarily mean equal amounts of parenting time. Kansas and Missouri prefer joint physical custody awards under the belief that children should enjoy continuing and meaningful contact with both parents.
Sole physical custody or sole residence generally means that the children reside with one parent while the other parent exercises reasonable visitation. Contrary to popular belief, sole physical custody does not necessarily mean that one parent will never see the children. However, the Court may award one parent supervised visitation or order there be no contact with the children.
Kansas and Missouri rely on a number of factors in awarding child custody. Additionally, there are a number of options and combinations for child custody awards. Because of the complexities in child custody cases, parents should speak with an attorney before continuing with any family law matter.
HOW IS CHILD SUPPORT CALCULATED?
In both Kansas and Missouri, the Supreme Courts of each state have issued guidelines for courts to follow in calculating child support amounts. These guidelines are ultimately meant to provide a means for the Court to determine what standard of living the child would have enjoyed had the divorce not occurred or had the parents been married (such as in a paternity action).
Missouri’s child support Form 14 can be found here.
Kansas’ child support guidelines can be found here.
Kansas and Missouri determine child support by evaluating, among other things, the following:
Generally, Kansas and Missouri child support guidelines will create an amount of child support that is presumed correct by the court. However, the court may change this amount if it finds it unjust. Parties may also attempt to have the court change this amount. For additional information on the Missouri Child Support Methodology, click here to read an article co-authored by Young & Kuhl, LLC divorce lawyer James H. Young.
Typically, Kansas and Missouri child support orders will continue until the child reaches the age of 18. However, unique circumstances can arise that will extend child support beyond the age of 18.
For example, Kansas child support may be extended beyond 18 if both parties agree or if the child is 18 and still enrolled in and attending high school.
Missouri child support may be extended beyond 18 if a child is enrolled in secondary schooling, or if the child’s special needs dictate. Specific requirements must be met for Missouri child support to extend in this situation and if such requirements are met, Missouri child support may be extended beyond age 18. For additional information, please visit RSMo 452.340 (click here) and be sure to check out an article published by Young & Kuhl, LLC divorce lawyer Abraham D. Kuhl as published in the Journal of the American Academy of Matrimonial Lawyers (click here)
WHAT IS A PATERNITY ACTION?
In either Kansas or Missouri, a paternity action is a legal proceeding initiated by the putative father, mother, or the State that establishes the father-child relationship between the putative father and the child when the child’s mother and father were not married.
WHY DO I NEED A PATERNITY ACTION?
As a father, paternity actions may secure your legal rights as a parent. Such rights can include custody and visitation rights, as well as certain rights for inheritance.
As a mother, paternity actions help in determining the legal father of a child and can also establish orders for custody, visitation, child support, and for birthing and other expenses.
WHAT IS DIVORCE? DISSOLUTION?
In Kansas, the term “divorce” is commonly used to describe the process which terminates the marriage. During a divorce, the court can divide the parties’ property, terminate the marriage, restore the wife’s last name, enter maintenance for either party, and, if there are children, enter custody and support orders.
In Missouri, the term “dissolution of marriage” is used instead of “divorce.” Dissolution is the process which terminates the marriage. During a dissolution, the court can divide the parties’ property, terminate the marriage, restore the wife’s last name, enter maintenance for either party, and, if there are children, enter custody and support orders.
WHAT ARE GROUNDS FOR DIVORCE IN MISSOURI? KANSAS?
Missouri is a “modified no fault” divorce state. One or both of the parties to the marriage only needs to allege the marriage is “irretrievably broken” and that there is no reasonable likelihood the marriage can be preserved. Missouri does not require there be fault of one party such as adultery, cruelty, etc. Like Missouri, Kansas too does not require fault, and the district court shall grant a decree of divorce for any of the following grounds: (1) Incompatibility; (2) failure to perform a material marital duty or obligation; or (3) incompatibility by reason of mental illness or mental incapacity of one or both spouses.
WHAT IS MAINTENANCE?
In Kansas, maintenance is the term used for alimony or spousal support. Both men and women are capable of being awarded maintenance. Maintenance is considered to be income to the recipient and deductible to the payor for income tax purposes. In Kansas, several counties have established maintenance formulas or guidelines. These guidelines typically determine the maintenance amount to be a percentage of the difference of the parties’ respective incomes, and determine the duration to be a percentage of the length of the parties’ marriage. As with Missouri (below) there are a number of factors to consider, and this guideline is to be used as a starting point for determining the maintenance award.
Example 1: Husband and Wife are married in Leawood, Kansas. After 15 years of marriage, they file for divorce in Johnson County, Kansas. Husband asks for maintenance. Husband makes $25,000 per year and Wife makes $100,000. Using the calculations, the amount would be around $1,250 per month and last for about 5 years.
Example 2: Husband and Wife are married in Leawood, Kansas. After 33 years of marriage, they file for divorce in Johnson County, Kansas. Husband asks for maintenance. Husband makes $25,000 per year and Wife makes $100,000. Using the calculations, the amount would be around $1,250 per month and last for about 11 years or 132. However, this exceeds the allowable duration of 121 months and, therefore, the duration would be shortened.
In Missouri, there is not a set formula or calculation to determine maintenance. Instead, courts in Missouri generally seek to determine whether a spouse has sufficient property to provide for his or her reasonable needs and whether or not that spouse is able to support themselves through employment. If a spouse is found to be entitled to maintenance, the court then considers a number of factors to determine the amount including, but not limited to, the financial resources of the party seeking maintenance (including marital property apportioned to him or her) and their ability to meet their needs independently, the time necessary to acquire sufficient education or training, the comparative earning capacity of each spouse, the standard of living established during the marriage, the property apportioned to each party, the duration of the marriage, the age and condition of the spouse seeking maintenance, the ability of the paying spouse to meet his or her reasonable needs, the conduct of the parties during the marriage, and “any other relevant factors.” RSMo 452.335. As with Kansas, maintenance may be modifiable or non-modifiable.
Both Kansas and Missouri maintenance can depend on a variety of facts and circumstances and it is best to speak with an attorney about your options.
WHAT IS CHILD SUPPORT?
Parents, whether divorced or having never been married, have an obligation to provide support for their minor children. In certain circumstances, this obligation to support continues even after the child has reached the age of majority.
Most states, including both Missouri and Kansas, use a formula or set calculation to determine the amount of child support to be ordered. In Missouri, this is known as the Form 14. The Form 14 determines child support by considering both parties gross monthly income, certain costs and expenses of both parties, and certain costs associated with the child. The amount calculated by the Form 14 is presumed correct, but may be rebutted by either or both parties or by the Court itself.
WHAT IS A MODIFICATION ACTION?
In both Kansas and Missouri, Courts retain jurisdiction to modify child support, child custody, and maintenance orders. For child support to be modified in Missouri, there must be a showing of substantial and continuing change in circumstances that makes the prior order unreasonable.
For child custody to be modified in Missouri, there must be a showing that there has been a change of circumstances of the child or the child’s custodian that were unknown to the Court at the time of the prior child custody order. The modification must be shown to be in the best interests of the child.
For maintenance to be modified in Missouri, just like child support, there must be a showing of substantial and continuing change in circumstances that makes the prior order unreasonable. The Court considers the parties’ financial resources and the earning capacity of an unemployed party. However, some divorce judgments designate maintenance as “non-modifiable” and may contain other unique language affecting whether maintenance may be modified or not.
WHAT IS ADOPTION?
Adoption is a legal action in which a person or couple become the legal parents of another person. In many states, including Kansas and Missouri, there is no age limit on a person being adopted. Adoption grants the adoptive parents the same legal rights as biological parents and can even amend the birth certificate of the child to list the adoptive parents.
WHAT IS AN ANNULMENT? IS IT THE SAME AS A DIVORCE?
An annulment is when a marriage is declared as being invalid due to some sort of defect. A divorce is where the court dissolves a valid marriage.
Annulments typically divide marriages into two categories: (1) those that are void; and (2) those that are voidable. Void marriages are treated as if they never happened. Voidable marriages are considered valid until a judgment is entered annulling the marriage. The distinction between the two can have significant impacts on subsequent marriages, inheritance, and spousal benefits.
Both Kansas and Missouri recognize the difference between void and voidable marriages. Void marriages are generally those where the marriage was between persons who are related or a bigamous marriage (where one spouse was already married at the time of another marriage). Voidable marriages can arise from a variety of situations, such as fraud, mistake of fact, one of the parties is mentally incapacitated, or one party is of insufficient age.
Example 1: Husband marries Wife 1 in Leawood, Kansas. Wife 1 files for divorce in Leawood, Kansas and Husband moves to Lee’s Summit, Missouri. The divorce in Leawood, Kansas is never finalized, but the Husband is never informed. Husband then marries Wife 2 in Lee’s Summit, Missouri. Because Husband’s divorce to Wife 1 was never finalized, his marriage to Wife 2 would likely be void.
Example 2: Boyfriend is 18 and Girlfriend is 16. They decide to get married in Jackson County, Missouri, but never get consent from Girlfriend’s parents or a Court Order. Their marriage would likely be voidable.
Because annulment actions are different than divorce actions, you will want to speak with an attorney about your options. Choosing annulment over a divorce can affect issues such as maintenance, property division, and even custody and support of children.
This information is not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems.