Frequently Asked Questions

Missouri:

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:

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.

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.

Missouri will usually be the home state of children who are subjects of a divorce action when the children have lived in the State of Missouri for the past six months prior to the commencement of the divorce. Also, if Missouri was the home state of the children within six months before the commencement of the divorce but have since been absent from the State, if one parent has continued to reside in Missouri, Missouri may still be considered the children’s home state. Kansas 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.

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.

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:

The financial resources of the parents
The financial resources of the child
The physical and emotional condition of the child

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.

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. 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 until the child reaches the age of 21.

In both Kansas and Missouri, maintenance is the term used for spousal support and alimony. Both men and women are capable of being awarded maintenance. Whether or not to award maintenance is generally left to the discretion of the court.

In Kansas, maintenance can be awarded in a divorce action, an annulment, or even an action for separate maintenance. Generally, when considering the amount, Kansas courts will factor in the needs of the spouse receiving maintenance and the ability of the other spouse to pay.

In Johnson County, Kansas, the Court offers guidelines to determine the amount and duration of maintenance. The amount is generally twenty percent (20%) of the difference between the respective gross income of the parties. The duration is generally one-third of the total length of the marriage, but will not exceed 121 months.

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 no set calculation. Instead, courts look to see if the spouse lacks sufficient property and is unable to support himself through employment. When determining the amount of maintenance, Missouri looks at a variety of factors, including the financial resources of the parties, the earning abilities of the parties, the standard of living during the marriage, and the conduct of the parties during the marriage.

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.

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.

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.

Legal Custody

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

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.

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.

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.

To begin answering these questions, one must first define terms. Retirement Plans can be broken into two different categories: Defined Contribution Plans; or Defined Benefit Plans. Defined Contribution Plans, such as a 401(K), are defined by the amount of money that is contributed to the plan. Defined Benefit Plans, such as a Pension plan, are defined by the monies (the benefit) that will ultimately be received monthly at retirement age.

In most states, at least a portion of the retirement plan that is accumulated during the course of the marriage is marital property. Many states have offsets for non-marital retirement funds, or at least those funds that were held at the time of the marriage. It is often prudent to get statements showing the balances in your retirement account at the time of your marriage.

When it is time to analyze the division of your assets, there are some options as to how you could divide your retirement plans. First of all, you may retain the entire value of your retirement plan if it can be offset by another asset. For example, if there is $100,000 in the equity in your home that is set aside to your spouse, you may desire to keep your $100,000 retirement plan to offset your spouse’s $100,000 value so that each of you will have $100,000 in assets. When analyzing this, you also need to take into consideration the potential tax consequences of assets being set aside to you. In other words, the house likely will not have any tax consequences due to the exclusion available to houses relating to capital gains. Retirement plans, on the other hand, will definitely have tax consequences.

The second manner in which these assets can be divided are through what is called a Qualified Domestic Relations Order. This is a special order which, when approved by the Plan Administrator of the retirement plan, divides these plans. Typically, Defined Contribution Plans are rolled into IRAs in your own name. Pensions are typically divided on a percentage basis where you will receive your portion of the plan (typically a monthly payment) when you are entitled to receive it pursuant to the plan.

Some things to consider regarding attempting to retain your Pension or your non-dividing it are:

Whether it can be offset by some other asset;
Whether or not you can retain some portion as your non-marital interest;
Whether you should stop contributing to it at the time of separation until the time of your Dissolution of Marriage. Although some might frown on this activity, contributing to your retirement post separation is in essence contributing to an asset that will be divided in half. Often times while a divorce case is pending, both parties are strapped for cash, and it may be appropriate under those circumstances to stop your contributions so that there is more cash available to live on during the pendency of your action. Later, following the entry of the Judgment and Decree of Dissolution of Marriage, the contributions can continue.

Whether this information is prudent or not depends on each person’s financial situation.

Finally, it should be noted that pension plans can be valued by calculating the net present value of future payments. While this sometimes proves to be a viable method, these calculations often yield values for these pensions that are greater than the parties are capable of offsetting with any other asset. In the event of a short marriage or second marriage when there is a significant non-marital interest, a spouse may keep their entire pension by buying out/offsetting the value with some other asset.

When divorce is inevitable, and it is time to divide your assets, one of the first things you need to do is obtain all of your retirement plan documents. You will also need to collect all of the account statements regarding the status of those plans as of the date of marriage as well as of the date of separation. You will need to update that information so that it is current through the Dissolution of Marriage action. This information then needs to be provided to your attorney so that all of these issues can be discussed and your financial best interest can be properly evaluated.

In Missouri, maintenance is the term used for alimony or spousal support. Both men and women are capable of being awarded maintenance. However, maintenance in Missouri does not have a set formula or calculation. Instead, courts in Missouri consider whether a spouse has sufficient property to provide for his or her reasonable needs and if 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.

In Kansas, however, there is a formula used to determine a maintenance award.

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.

In 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.