While friends, family, and colleagues may have a lot to say about divorce, I find that there are often more misconceptions circulating than good advice. Family law, which includes divorce, custody, adoption, child support, and paternity cases, is very case specific. Therefore, the advice that your friend gives you may have been true in her divorce, but may not apply to your particular circumstances.
One common misconception is the length of time that a couple has been married determines whether or not the marriage qualifies for an annulment. This is completely untrue. Annulments are only granted when the marriage is void or one spouse misled the other spouse regarding a material fact prior to the marriage. Examples of marriages that may be annulled include circumstances where the spouses are closely related, one spouse was already married at the time of the marriage, or a spouse was not of the gender he or she claimed to be. A couple who has only been married for a few months will still need a divorce if they do not meet these requirements for an annulment. Likewise, a couple who has been married for fifty years may qualify for an annulment.
Often clients believe that they need a list of wrongs committed by their spouse in order to get a divorce. While they may personally need or want this list, the court does not require it. Kansas is a “no fault” divorce state with three possible grounds for divorce: mental disease or defect, failure to perform a material marital duty, and incompatibility based on irreconcilable differences. The majority of divorces are filed on the basis of incompatibility, which is a simple standard to meet. If one spouse believes that he or she is incompatible with the other, incompatibility exists.
The question that clients ask most frequently is whether there is an advantage to filing first in a divorce case. While I never encourage clients to file for divorce unless they are certain that they want to do so, there can be advantages to being the first to file for divorce. In Sedgwick County and the surrounding communities, the person who files for divorce files temporary orders with the divorce. These temporary orders establish temporary custody of the children, possession of the vehicles and residence, and child support and spousal maintenance (alimony). If the couple does not have children, is already living in separate residences, or neither person wants spousal maintenance, there is not an advantage to filing first. However, if having custody of the children or keeping the house is important to the client, there can be an advantage to filing first.
Another common question among clients is whether they are entitled to spousal maintenance, or whether they will have to pay spousal maintenance. Gender has no impact on whether a person will receive or pay spousal maintenance. In determining whether or not to order spousal maintenance, the court considers whether it is “fair, just, and equitable” in consideration of all of the circumstances. These considerations include the earning capabilities of the couple during and after the marriage and the length of the marriage. For instance, a spouse who did not work during the marriage and is currently unemployed will have a better chance of being awarded spousal maintenance than a spouse who has consistently been employed. A person may be able to receive temporary spousal maintenance while he or she searches for employment, but may not receive these payments after the divorce is finalized, if the parties were married for a relatively short period of time.
In dividing property and debt, the court also considers what is fair and equitable. A common misconception is that all of the couple’s assets and debts will be split fifty-fifty, down the middle. However, sometimes what is fair and equitable is not an equal half. For instance, one person may be ordered to pay more debt than the other person, but may be awarded more property in consideration of the larger amount of debt. Likewise, one person may be allowed to keep the house without paying equity to the other person, rather than receiving an equal portion of the retirement account.
The largest concern for clients is, of course, the custody and support of their children. Clients often tell me that their primary objective is obtaining sole custody of their children. Generally, when I explain to them what it means to have sole custody, this is not actually their goal. Contrary to popular misconception, custody relates to the decision-making rights for the children, rather than which parent the children will live with. Unless special circumstances exist that make one parent incapable of making good decisions for the children, the court will grant the parents joint custody, giving them equal rights to make decisions regarding their children’s school, daycare, and medical treatment, among other things. Residential placement, on the other hand, refers to where the children will live and parents may either have shared residential placement, or one parent may have primary residential placement.
The most dangerous misconception among people going through divorce is that they can represent themselves. While it is not required that a person hire an attorney to file a divorce, it really is necessary. Too often, people try to save money and end up being taken advantage of, or harming their own cases, because they do not understand the process or the legal terminology. The best advice for someone who is contemplating divorce is to consult with an attorney.
If you have a question about divorce, please call Cameron & Herrman, P.A., at (316) 265-0650.