Family Law Legal Terms
Definitions of Common Legal Terms used in Family Law
Child Custody is divided into legal custody and residency.
- Legal custody: Not who the child lives with; but, rather, who makes decisions regarding
the children, such as medical and schooling.
- Residency: Person selected with the right to decide where the children live.
Types of Legal Custody
Joint Legal Custody
- Both parties should consult each other regarding major decisions for the children.
- This includes, but is not limited to: where the children go to school; where they go to
church; who their doctors are; if they should be allowed to get piercings, tattoos, etc.;
consent to marriage; whether braces are appropriate; whether therapy should be sought;
and whether the child should receive certain medications.
- Both parents have equal access to medical and school records.
- Joint Legal Custody is the preferred method of custody in Kansas. It has nothing to do with
who the children live with or the amount of time each party spends with the children.
Sole Legal Custody
- The residential parent does not have to consult with the other parent regarding major
decisions for the children.
- Both parents have equal access to medical and school records.
- It does not give the residential parent the right to move the children without notice to the
other parent. The parent still must comply with the law and provide 30 day notice prior to
moving.
- This does not prevent or limit the other party’s parenting time with the children.
- The Judge must make the finding that there are facts to support the awarding of sole legal
custody.
Full Custody - There is no such thing as “full custody” in Kansas.
Types of Residency
Shared Residential Custody - Each parent spends 50% of the time with the children.
Primary Residential Custody
- One parent is chosen for the children to live with the majority of the time.
- The other party may be granted parenting time.
Divided Residential Custody - Each party has one or more of the children living mainly with them.
Types of Cases
Divorce – A divorce terminates a ceremonial or common law marriage. Marriage is a voidable contract
and the divorce cancels that contract.
Annulment – An annulment erases a marriage, as if it did not happen.
- There must be a material mistake of fact or the marriage had to be void due to lack of
capacity to be married (i.e., your spouse was only 17 years old at the time of marriage, or
your spouse was already married to someone else).
Legal Separation – A legal separation can be filed.
- The parties are still married upon completion.
- Debts and assets are divided; custody, parenting time, and child support can be ordered.
- The marriage can be terminated at a later date.
Alternative Dispute Resolution
Judges are happiest when the parties work out their issues themselves. In order to promote this, the Court may turn to different forms of dispute resolution, known as ADR, such as:
Mediation - The parties sit down with a neutral third party who tries to help the parties reach an agreement regarding parenting time and custody of the minor children.
- It is non-binding and anything that occurs or is said in mediation is confidential.
Domestic conciliation - Domestic conciliation is a nonconfidential process where a neutral person helps parents reach resolution by improving communication, settling differences, and finding solutions to conflict. The Judge may order a domestic conciliator to provide a written report to the court.
Parenting coordination - Parenting coordination is a nonconfidential, child-focused process where a neutral person helps parents implement court orders or daily parenting matters through assessing parenting skills and the child’s needs, educating parties about the child’s needs, coordinating professional services for the family, and helping the parties reduce harmful family conflicts.
Case Management - Process where the parties meet with a trained third party who, upon interviewing the parties, looking at evidence, and interviewing witnesses, makes recommendations to the Court on who the children should live with and the other parties’ parenting time based on statutory factors.
Types of Service
A party must be “served” a copy of the initial pleadings through an official source.
- This means that the party must be given a copy of the legal papers.
- A party cannot give the papers to the other party and have that consider proper service by
the Courts.
- A person must be “officially given” a set of the papers in order for the Courts to divide
property, debts and order child support.
1. Sheriff - A Sheriff Deputy delivers copies of the papers to the other party where they work or live.
Cost is $15.00 within Kansas or up to $100.00 out of State.
2 . Voluntary Entry of Appearance- A form signed by the other party and notarized.
It does not mean that they agree with the papers but it alleviates the need to have
the Sheriff deliver the papers to them.
3. Special process server- Either a friend or family member who is considered to be of “good”
character who agrees to deliver the papers to the other party.
They must be appointed by the Court and complete documents swearing that they
delivered the papers to the other parties.
There are also people who will serve papers for a fee.
4. Certified Mail- This is not the same as regular mail.
5. Publication - If you are not able to provide notice to the other party by: 1. having the sheriff deliver a copy of the papers, 2. getting the other person to sign a Voluntary Entry of Appearance, 3. hiring a special process server, or 4. sending notice by certified mail, you may be able to provide notice of the divorce by publishing the notice in a local newspaper. In order to obtain “publication service,” you must request permission to do so by filing the “Affidavit for Service by Publication,” and obtaining an order from the assigned judge allowing you to publish notice. After you obtain the signed “Order Allowing Service by Publication”, you must then publish notice following the process set out in K.S.A. 60-307. You must obtain “proof of publication” from the newspaper and file the proof with the court. Court personnel cannot help you with this process.
Parties to a case
Petitioner – The person who files the papers, starts the action.
Respondent – The person who is served the papers.
There is no long-term advantage between being the Petitioner or Respondent.
The parties will always remain the same, even in post-judgment actions.
o Once the Petitioner, always the Petitioner. Once the Respondent, always the
Respondent.
Child Support
Child Support is payment from one parent to the other parent for support of the minor children.
Child Support may be ordered whether the parties exercise shared residential custody or primary
residential custody.
It is calculated through a formula created by the Kansas Supreme Court.
It is based on the income of the parties, the number of children of the parties, other
children that the paying party may be financially responsible for, daycare expenses, and
health care expenses.
The tables are located at www.kscourts.org. There is a child support calculator at
Spousal Maintenance
Spousal Maintenance (also known as alimony) is payment made from one spouse for the care of the other
spouse. It is not a guarantee just because you have been married.
Spousal Support is generally based on the concept that one party has a need and the other party
Has the ability to pay. If incomes are equal then it probably won’t be ordered.
It is generally not ordered in short-term marriages.
Marital Assets and Marital Debt
Marital assets are property accumulated during the marriage.
This includes houses, cars, RV’s, collections or personal items, refrigerators, bank accounts,
retirement accounts, inheritance, or lawsuits.
It can be any type of property with value.
You must have an ownership interest in the property, i.e., your name or your spouse’s name
is on the title.
Marital debt is any bill that occurred during the marriage.
It does not matter if it is just in your name, just in your spouse’s name, or in both names.
If either party accrues debt during the marriage, it is a marital debt. This includes loans, credit
cards, medical bills, etc.
Equity
Equity is used to figure the value of houses, trailers, cars, etc.
It is the amount something is worth minus what you owe.
For example, if you could sell your house for $100,000, but you owe $80,000, your
equity is $20,000 ($100,000 - $80,000 = $20,000).
You can get a value either by hiring an appraiser or looking at the tax statement (tax value is
usually a little less than what an appraiser will value your house).
Venue
A divorce can only be filed in the County where the parties reside or where the Respondent lives or
works.
Jurisdiction
Jurisdiction means the Judge can tell you what to do. The court needs jurisdiction over the people (personal
jurisdiction) and the subject matter.
Subject Matter
Means the Judge can divide your stuff and divorce you.
Best Interest
When determining placement or custody of the minor children, the Court generally looks at the
children’s best interest, not the parent’s wishes.
The Court studies several factors and considers the child’s best interests to be whatever
promotes the children’s physical and mental health and safety.
Home State
This is the state where the children have resided for the 6 months prior to the filing of a case.
Generally, Kansas must be the children’s home state prior to a Judge granting either party
residency or custody. There are exceptions to this rule.