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55 Cards in this Set

  • Front
  • Back
Marriage Requirements
1. Mental Capacity
2. Neither party can be married to someone else
3. Age
4. Unrelated
5. Knowing and voluntary consent
6. Parties of different sex
7. Procedural Requirements
8. Marriage solemnized
Common Law Marriage Requirements
1. Capacity
2. Present Agreement
3. Holding out to public

*Once formed, only way to dissolve is through divorce
Engagement Ring
Engagement gifts, including the ring, are conditional gifts and must be returned if the marriage does not occur
Void v. Voidable
Void
1. Never existed for any purpose
2. Any interested party can attack even after the death of one of the parties

Voidable
1. One of the spouses may bring an action to have the marriage declared invalid
2. Valid unless attacked
3. If the spouse with the cause of action ratifies the marriage by continuing the relationship, or if one spouse dies, the marriage can no longer be invalidated
Grounds for Annulment
1. Age
2. Incest
3. Lack of capacity
4. Bigamy
5. Marriage within 30 days of divorce decree
6. Fraud that goes to the essentials of marriage
Duty to Support
1. Each spouse has a duty to support the other under the common law doctrine of necessaries
2. The person incurring a debt is primarily liable; the spouse is secondarily liable; creditor can go after both at the same time
Separate Property
KSA 23-201(a) allows each person to retain property:
1. acquired before marriage; and
2. acquired after marriage through gift, descent, or devise.
Homestead
1. 160/1 occupied as a residence by the family of the owner
2. Exempt from forced sale
3. Can't be alienated w/o consent of both H & W
4. Debts that can attach:
a. payment of obligations to buy property and improvements
b. taxes
c. lien given with consent of both H & W
Duty to Support
Comes from common law and Doctrine of necessaries
Person incurring debt is primarily liable the spouse is secondarily liable
RIght to Make Contracts
Married person can make contracts as an individual and buy or sell real or personal property as an individual.
Exceptions:
• A resident spouse must consent in writing to the sale of any real
property even if it is held in one spouse’s name alone or was acquired prior to the marriage.
• If the conveying spouse dies, a non-consenting spouse can recover
one-half of all real property that was conveyed with out with their
consent.
• This provision does not apply to judicial sale or property taken by
other legal proceedings.
Right to Services and Affection
§ Allows a suit for loss or impairment of a spouse’s ability to perform
domestic duties.
§ The consortium action is not an independent action in Kansas but
collateral to a tort action against a wrongdoer
Kansas Protection from Abuse Act
§ Persons in a dating relationship may also seek a PFA. Factors to
determine a dating relationship are:
• Nature of relationship, length of time, frequency of interaction,
time since termination, if applicable
§ Abuse is defined as:
• Intentionally attempting to cause or causing bodily injury;
• Intentionally placing another in fear of bodily injury by threat;
• Engaging in sexual activity with minor under age 16 or fondling to
satisfy desires of adult
Separate Maintenance
• Allows the spouses to live separate and apart pursuant to a court order.
• Grounds for separate maintenance are the same as for divorce
Grounds for Divorce
1. Incompatibility
2. Failure to Perform a Marital Duty
3. Mental Illness
Incompatibility
Parties goals are so irreconcilable as to make it impossible for
them to continue living as husband and wife
• No defenses in divorce
• Even if one parties denies incompatibility the court will still grant
divorce
Subject Matter Jurisdiction - Divorce
Parties goals are so irreconcilable as to make it impossible for
them to continue living as husband and wife
• No defenses in divorce
• Even if one parties denies incompatibility the court will still grant
divorce
Personal Jurisdiction - Divorce
Person is in the state
• Personal service out of the state on a KS resident
• Submission to jurisdiction by voluntary entry of appearance
• Inadvertent submission to KS jurisdiction (tagging)
• Long-arm statute
o U.S. – requires minimum contacts
o Married in KS and one party continues to reside there is a
popular long-arm technique
The trial court first obtaining original jurisdiction retains continuing jurisdiction to the exclusion of all other KS courts.
Venue
Actual resident at the time of filing or the county where the respondent can be
served or/and adjacent county to a military post
Marital Property
all property of the parties, whenever acquired and however
tilted, wither held individually or by co-ownership, as of the time of filing of an
action for divorce, spate maintenance or annulment is marital property and is
subject to division. In KS, the court may divide all property regardless of how it
was titled or acquired.
o The court is not required to credit either spouse with the initial value of
property brought into the marriage or acquired during the marriage by gift
or inheritance
§ Only property that is excluded by a valid agreement between the
parties is seen as separate property and is not subject to division by
the court
Retirement Pension
In dividing defined-contribution plans, the court shall allocate profits and losses on the non participant’s portion until the date of the divorce or separate maintenance decree. Value is
set at the time of the divorce
o If retirement benefits are not totally accumulated
during the marriage, a formula can be used based on the number of years of marriage compared to the number of years the participant was in the plan.
Although the entire pension is subject to division the court will look at the time, manner and source of acquisition in dividing it.
Methods for Dividing Pensions
Present value – present value of the pension is assessed and that value is divided by the court using other types of property to offset the value
Qualified Domestic Relations Order – is an order to a pension administrator to pay part of pension to an ex-spouse
Military Pension
• Military disability pensions cannot be divided
• Military retirement pensions can be divided
Goodwill
Goodwill of a business is martial property to the extent that goodwill
is marketable. The goodwill cannot be dependent on the reputation of
the professional
Personal Injury Award
• If the award compensates for losses to the marital estate, such
as medical expenses or lost wages, it is marital property
• If the award compensates for the loss of future earning it is not
marital because it replaces post divorce earnings
Distribution of Property
Factors to determine "just and reasonable" split:
1. Age of parties
2. Duration of the marriage
3. Property owned by the parties
4. Present and future earning capacities
5. Time, source, manner of acquisition of property
6. Family ties and obligations
7. Allowance of maintenance
8. Dissipation of assets
9. Tax consequences of the property division
10. Such other factors as the court considers necessary to make just and
reasonable division
Orders Allowed in Distributing Property
The sale of the martial property if it cannot be otherwise
divided;
o Offsetting cash payments; or
o The imposition of liens when installment payment are
ordered
Insurance
needs more than a general property waiver the decree
must provide for any changes in beneficiary designation on insurance;
trusts and pay on death accounts
Marital Debt
if it is joint debt, the divorce does not affect third-party creditors.
Valuation
Date of Valuation can be set at the discretion of the court. Valuation date
can be the:
§ Date of separation;
§ Date of filling the petitions;
§ Date of the divorce; or
§ Some date in between depending on facts of the case
Maintenance
The factors the court considers in awarding maintenance are:
1. Age of parties;
2. Present and prospective earning capacity;
3. Length of marriage;
4. Property owned by the parties;
5. Needs; time, source, and manner of acquisition of property;
6. Family ties and obligations;
7. Overall financial situation

Trial judge may award maintenance to either party for a time not to exceed 121
months.
Modification of Maintenance
§ court ordered maintenance may not be increased or accelerated without the
consent of the obligor
§ court ordered maintenance may be reduced upon a showing of
§ material change of circumstances that were not anticipated but only before
the maintenance period ends
§ if maintenance is set in a separation agreement, the court has no power to
modify except as the agreement provides
§ past due installment of maintenance may not be modified
Termination of Maintenance
Death of either party;
• The remarriage or sometimes cohabitation of the person receiving
the maintenance
• The time set in the decree
• Provisions in an agreement of the parties
Child Support
Child support Guidelines – support amount based on the parents’ combined
income and proportionate shares and the age of the child. All sources on income
are included. Income will be imputed if parent is deliberately underemployed or
unemployed
o A person must ask for any adjustment and that party has the burden of proof
o To deviate from the guidelines the judge must make finding to show how it is in
the BIC
o Health Insurance

o Tax Consequences – generally goes to the custodial parent
Termination of Child Support
Parents cannot reduce or terminate child support because the right belongs
to the child
§ Child support may be terminated upon:
• Death of parent or child
• Child turning age 18
• If the child is still in high school on June 30th of the year when
child turned 18
• Until the child finishes high school if the parents agreed to hold the
child back
• Beyond 18 if the parents agreed to pay longer in a written
agreement approved by the court
Modification of Child Support
§ Court has continuing jurisdiction to modify child support based upon a
material change of circumstances. Can also modify if:
• It has been 3 years since the last order
• Increase or decrees of 10% in the guidelines amount
• Child reaches a higher age group having passed his 6th or 12th
birthday
• Emancipation of the child
Multiple Family Application
when spouse remarries and has more kids
• A parent cannot file for a reduction of support to the first children
based on the birth of additional children
• However, if first children seek additional support, the parent can
use the total number of children to be supported to determine child
support
Child Support Jurisdiction - Initial Order
Court must have personal jurisdiction over the parent to order child
support.
• Uniform Interstate Family Support Act (UIFSA) allows expanded
long arm jurisdiction if:
o The individual resided with the child in KS
o The individual resided in KS and provided prenatal
expenses or support of the child;
o The individual engaged in an act of sexual intercourse in
KS and the child may have been conceived by the act
o The child resides in KS as a result of the acts or directives
of the individual
o Any other basis consistent with the constitutions of KS and
U.S.
Modification of Child Support Jurisdiction
The decree state retains continuing, exclusive jurisdiction as long s
one party remains in the state
• If all parties leave the decree state, the person seeking to modify

the order must go to the other party’s state.
§ Under UIFSA, only the decree state has ability to modify duration
Enforcement of Child Support Order
§ Direct wage withholding
• A wag withholding order in one state can be sent directly to the
employer of the person who is obligated to pay the support in
another state
§ Registration
• A party can register a child support order in the state in which the
other parent lives
UCCJEA - Child Custody Jurisdiction
o Original or Initial Orders
§ Primary basis for jurisdiction is home state – the place where a child has
lived for the past 6-months immediately preceding the filing of a petition
for custody
• Home state also continues for 6-months after a child leaves the
state if one parent or person acting as a parent remains.
§ A court of another state does not have home state jurisdiction or the
child’s home state court has declined to exercise jurisdiction on the ground
that:
• The forum state is more appropriate, and
• The child and a parent have a significant connection other than
mere physical presence; and
• Substantial evidence is available in forum
Declining Jurisdiction
§ A court must decline jurisdiction if a suit is pending in another jurisdiction
§ A court may decline jurisdiction if it finds that the party requesting
jurisdiction engaged in unjustifiable conduct (unclean hands)
§ A court may decline jurisdiction if it finds that it is an inconvenient forum.
The court looks at:
• Another state is or was home state recently;
• Substantial evidence concerning child’s present or future care is
available in another state;
• Another state has a closer connection with the child and the child’s
family;
• If parties have agreed on another forum which is no less
appropriate; or
• If the exercise of jurisdiction would contravene any of the purpose
of the UCCJEA
Parenting Plan
Must provide at a minimum:
o A designation of the legal custodial relationship,
o A schedule for the child’s time with each parent, and
o A provision for alternative dispute resolution in the event of disagreements

between the parties
Forms of Child Custody
Joint custody with join decision-making power and responsibility with both
parents
o Sole custody with primary decision-making power and responsibility with one
parent
Factors for Determining Child Custody
Child’s adjustment to home, school and community; the child’s desires; the
parent’s desires; the relationship and interaction of the child with parents,
siblings, and any other person who may significantly affect the child’s best
interests; the length of time the child has been in the care of a person other than
a parent and why; evidence of domestic violence; which parent is more likely to
foster a continuing relationship with the other
Third Party Visitation
o Grandparents and step-parents can petition for visitation with a child in three
situations:
§ The grandparents’ child has died and the remaining biological parent has
remarried AND the stepparent adopts the grandchild.
§ Paternity action
§ Divorce Action
o Grandparent and step-parent have the burden of showing that:
§ They have formed a substantial relationship with the child;
§ It is in the BIC to continue the relationship
Modification of Child Custody
Jurisdiction to Modify – UCCJEA provides for continuing, exclusive jurisdiction
in a court that has made a custody determination consistent with UCCJAE until:
§ Neither the child or the child and a parent have a substantial connection
with the state and substantial evidence concerning the child is no longer
available; OR
§ The child, parents, and any person acting as a parent have all left the state
(if this happens jurisdiction of original orders decides, i.e. home state)
o Parental Kidnapping Prevention Act (PKPAP
§ Federal law that requires that a state give full faith and credit to a custody
decree from another state if custody order was made in conformity with
PKPA jurisdictional principles.
o The general standard for modifying a child custody award is a material change in
circumstances affecting the child.
o Default or Stipulation
§ If a custody decree is entered in a default or stipulated divorce and facts
were not presented to the court, the trail court may in its discretion admit
evidence as to fact existing at the time of earlier order.
§ The court may enter nay order which could have been entered at the initial

hearing whether there has been a changed in circumstances or not
Relocation
The parent who wants to change the residence of a child, whether across
the street or across the country, MUST give 30-days notice
§ The nonresidential parent may ask for a hearing and the court may
consider it a changed of circumstances
§ At the hearing the court will consider:
• Effect of the move on the BIC
• Effect of move on the parenting time plan
• Increased cost of moving on parenting time
Separation Agreement
o Requirements:
§ In writing or made orally on the record;
§ It is entered into because of the divorce; AND
§ It is approved by the court
o Standard the court will use is whether or not the agreement is valid, just and
equitable.
o With property division the trial court must have sufficient evidence of values of
property
o Terms of Separation Agreements can include:
§ All aspect of the divorce;
§ Terms that a court could not order but that the parties can agree to such as:
• Child support beyond 18;
• Escalator clauses on cost of living, etc.
§ The court is not bound by any terms related to the children
Pre-Marital Agreement
• Kansas has enacted the Uniform Premarital Agreement Act (KUPAA). KS liberally
interprets premarital agreements to carry out the intent of the parties
• Four requirements for a premarital agreement are:
o It is made in contemplation of marriage
o It is in writing
o It is signed by both parties
o There is a marriage
• Premarital agreement is enforceable if:
o It was enter into voluntarily, and
o It was not unconscionable OR disclosure requirements are met. This can be
satisfied by
§ Actual financial statements
§ Waiver of disclosure
§ General knowledge of extent of property
o Unconscionability is an issue only if there is no disclosure or waiver (this is
judged at the time of execution of agreement)
o Kansas has no requirement for independent counsel
• Limitations on contracting

o The agreement cannot violate public policy
o A premarital agreement cannot be contrary to the criminal law of KS
o It cannot affect adversely child’s right to support
o It cannot bind the court on the issue of child custody
o It cannot eliminate spousal support if a spouse would become a public charge
Revocation

o After marriage the agreement can be amended or revoked only by written
agreement signed by the parties
Non-Marital Children




KS has adopted the Uniform Parentage Act
The mother’s parentage can be established by proof a birth of a child
The father’s parentage is presumed when:
o He was married to the mother at the time the child was born (or 300 days before
birth)
o Before the child’s birth, he and mother married but eh marriage is void or
voidable
o He and the child’s mother married to attempted to marry after the child’s birth
and the marriage is void or voidable, and :
§ He has acknowledged paternity on birth certificate or acknowledgement or
§ He is obligated to support the child
o He notoriously or in writing recognizes his paternity
o Genetic test results indicate a 97% probability that the man is the father of the
child
o The man has a duty to support the child under an order of support regardless of
whether the man has ever been married to the mother
Father’s presumption can be rebutted only by clear and convincing evidence, by a court
decree establishing paternity in another man or by weightier presumption

Adoption Kansas
KS allows both minors and adults to be adopted and recognizes three types of adoption:
o Independent/private
o Agency
o Step parent
Adoption - Jurisdiction
Independent and stepparent adoptions, the venue is in the county in which the
petitioner and child to be adopted reside
o Agency adoption venue is in the county n which petitioner resides, child to be
adopted resided prior to replacement or the county where the agency is located.
§ The Indian child Welfare Act applies to replacement of children of Indian
heritage
§ Interstate Compact on the Placement of children applies to the placement
of children in other states for foster care or as a forerunner to adoption
Adoption - Consent
Living parents must consent unless:

Their right have been terminated,
They have relinquished the child to STS or other child placing agency,
If the father is unknown, the court must appoint an attorney to represent
him, or court will terminates rights
§ A parent may relinquish child to a child placing agency only if the agency
accepts in writing and complies with the form in the statute.
o One of the parents can consent, if the other’s consent is found unnecessary, this
could happen where:
§ The father has abandoned the child after having knowledge of the child’s
birth
§ The father is unfit
§ The father has made no reasonable effort to support or communicate after
having knowledge of the child’s birth
§ The father failed without reasonable cause to provide support for the
mother during the 6-months prior to the child’s birth
§ The father abandoned the mother after having knowledge of the pregnancy
§ The birth of the child was the result of rape
§ The father/mother failed or refused to assume the duties of parent for 2-
years preceding the filing of the petition
o Consent of adoptee
§ If the child is over the age of 14
o A legal guardian can consent if parent are deceased or have failed to assume
parental duties for two years.
o SRS or other agency can consent if they have legal custody.
Adoption - Procedure
o A written consent acknowledged before a notary or judge must be executed unless
consent is unnecessary
o A consent must be executed not more than 6-month prior to date petition is filed
o A consent given less than 12 hours after the birth of the child is VOIDABLE
o Minority will not vitiate the consent, but the minor parent must have the advice of
independent counsel who shall be present at the time of execution of the consent
o A consent will be presumed to be valid if it is in writing and executed before
a judge of the court or record or before an officer authorized by law to take
acknowledgment unless there is a showing by clear and convincing evidence of
fraud, duress, undue influence, mistake or lack of understanding prior to the final
decree of adoption
§ Burden is on the consenting party. Only parents will at the time of giving
the consent is relevant
• A blanket consent is allowed
• Attorney’s representation of both sets of parents does not of itself
show lack of voluntariness of consent
Rights of Cohabitants
This is defined as two persons living together as husband and wife, assuming the marital
rights, duties and obligations which are usually manifested by married people, including
but not dependent on sex

Property Rights
o KS courts have the inherent equitable power to divide property that has been
jointly acquired or was intended to be jointly acquired during the cohabitation
o The divorce statue does not apply regardless of how long the cohabitants have
lived together, or how much property they have accumulated
Support Rights
o There is no statutory protection for cohabitants
o There is no obligation to support cohabitant without an expressed or implied
contract
Children
o Unmarried cohabitants have an equal right to the care and custody of their
children.
o The standard used is BIC