Part of Real World Divorce: web edition | Kindle edition
Valerie Moore, who has been practicing in Kansas since 2000 and is a "Super Lawyer," answered our questions about Kansas law and procedures. She has written for the national American Bar Association and teaches Continuing Legal Education classes for other attorneys for the Kansas Bar Association and Johnson County Bar Association. She has served as President of the Kansas Bar Association's Family Law Section. See http://www.valeriemoorelaw.com/ for a full biography.
Moore handles a roughly 50/50 mixture of male and female clients in divorce lawsuits filed by a "petitioner" against a "respondent" and in which, in her experience, "the majority of cases are filed by women." She goes to a full trial four or five times per year and a one-day trial is typical, but "occasionally two to three days for experts to testify such as a psychologist." What are the issues that Kansas litigants aren't able to settle and therefore go to trial on? "Child support tends to be the area that is hardest to resolve," said Moore, "though parenting time plans and modifications also tend to be difficult to settle as oftentimes, the parties have 'nothing to lose' with taking the matter to trial."
Cases go from filing to trial in about a year in scenarios like the ones below, assuming that all of the issues are disputed. The temporary order process in Kansas is radically different from the system in other states. "We have ex parte temporary orders," explained Moore, "that you can get contemporaneously with the filing of the initial divorce petition. You can get exclusive possession of the house, a parenting plan [custody], and child support issued immediately." All of this can be achieved ex parte? I.e., without the spouse having a chance to go to court and dispute what is essentially a complete divorce? "Yes," said Moore, "it definitely favors the petitioner. However, the statute allows a hearing within 15 days if the respondent disagrees with the ex parte orders. But if the respondent has only two weeks to vacate, he or she is already out of the house [absent a stay issued on the temporary orders pending a hearing]." Do you need to allege physical violence in order to obtain exclusive use of the house? "No," said Moore. "Courts don't want litigants living in the same house once a divorce is filed – the risk of domestic violence and/or the toxicity of the situation for children is of utmost concern.."
Could a petitioner submit a parenting plan in which the children can see the respondent only one hour per week? "There are guidelines for parenting plans that are generally accepted by courts," said Moore. "Though every county has a different one. With children in elementary school, for example, it might be every other weekend and a Wednesday overnight each week." What stops a breadwinner parent from using one of these orders to kick out the stay-at-home parent and assume primary parenthood? "That would mostly likely be granted on a temporary basis," said Moore, "but will almost always be reversed at the first hearing. It tends to anger the judge so it doesn't happen very often."
Does the same judge stick with the case for the entire process? "Every county is different," said Moore, "however, barring a judge retiring, switching dockets, etc., generally is it a 'one family one court' mentality." If a judge whom you believe to be biased is assigned to your case, do you have the right to get a new judge assigned (once) as in some nearby states? "No," responded Moore.
Given that the ordinary divorce process in Kansas already looks like the domestic violence prevention system in other states, e.g., with an ex parte near-instant process for gaining exclusive use of the house, are there any divorce litigants who bother pushing forward on the domestic violence front? "Ex parte orders [at the beginning of each case] have certainly cut the use of the domestic violence system," said Moore, "but there is always somebody who heard from their friend that it is a good tactic and goes to file a restraining order before filing for divorce. Restraining orders (called Protection from Abuse and/or Protection from Stalking) in Kansas must be filed by individuals (rather than an attorney) and require the litigant to present some testimony (generally on the record) as to why a restraining order should be issued. The Protection Order statute is to be liberally construed in favor of the party filing the action. Judges generally regard Protection from Abuse orders skeptically when parties are married as potentially an end-run around the divorce system." Has Moore seen these in her own cases? "I've seen plenty that aren't true," she responded, "where the goal was just to get someone out of the house. I probably sound jaded, but if there is not a criminal case the abuse probably does not rise to the level necessary for a Protection Order. People now have a wide definition of 'abuse' and emotional abuse is to them just as bad as physical abuse so there is no way to disprove an allegation."
But supposing that one's soon-to-be-ex-spouse actually is abusive. Isn't the restraining order essential? "If there is a criminal case on file, there will be orders of no contact issued through the criminal case. If there is only a divorce action, there can still be orders put in place to minimize contact," responded Moore. "Protection Orders are generally not the best way to achieve divorce litigants' goals. They are only Band-Aids meant to assist in the short term, they are not realistic when there are children involved as a long-term solution. The divorce process is the better forum for these issues. Most attorneys dislike Protection Orders as a means of resolving issues."
Child support flows in Kansas until a child turns 18 or graduates from high school, whichever is first, with a fixed upper limit of 19 for slow learners. What about college expenses? "That's where the conservative philosophy of the state comes in," says Moore. "Our Legislature says 'You're 18, you're an adult, you're on your own.' It is frustrating to lower-earning parents that a court cannot order the payment of college expenses." Will a court enforce an agreement between parents for the payment of college expenses? "Yes," says Moore, "but I advise people with young children against entering these contracts because they don't know what their future circumstances will be."
Child support guidelines in Kansas are unusually precise. The state hired a pair of economists to develop a formula based on the USDA analysis of expenditures by Americans on children (see the Methodology chapter for a discussion of UCLA Professor of Economics Bill Comanor's alternative approach). From this starting point, the economists built a formula that that uses 10 digits of precision. This was updated for 2016 to make obtaining custody of children more lucrative. Support for a single child if combined gross monthly income is over $15,500 per month is 3.620808565 times income raised to the 0.666690684 power. This is a declining exponential function that results in a lower percentage of income being ordered for child support as the total amount of income increases. I.e., unlike California, Kansas recognizes that if a person earning $1 million spends 10 percent of his or her income on a child, it does not follow that a person earning $1 billion would spend the same 10 percent ($100 million per year on one child!).
What kind of numbers pop out of this formula? On the low end of the scale, Kansas does not build in the "self-support" reserve that some other states have. A person earning a below-poverty level wage of $1,000 per month will pay $90 per month in child support, i.e., a higher percentage of his or her income than a tycoon would pay. How about the high end? When a parent with a $250,000-per-year income is sued, the child support would be $32,976 per year. A parent with an $800,000-per-year income will yield $71,628 in child support for one child. A Wall Street banker earning $10 million per year would pay $386,030 per year if sued in Kansas. Note that these higher numbers are available only by judicial discretion and Moore reminded us that these numbers, unlike those for incomes of less than $186,000 per year, "do not establish a rebuttable presumption. For high-income parents, child support should generally be higher than the top of the table but not necessarily the full amount computed by formula."
If having to use a scientific calculator, or the Wolfram Alpha Web site, were not challenging enough, Kansas also has adjustments depending on a child's age. The above numbers apply to children between 12 and 18. For children 6-11, the numbers are to be multiplied by 0.92 and for children through age 5 by 0.8.
When the parents have a combined gross income below $186,000 per year, fortunately the state has prepared a user-friendly table and these amounts are not subject to judicial discretion. At the top of the table, for example, payments for a single child will be between $1,805 and $2,256.
[Separately, one has to wonder about the rationale for establishing a formula with 10 digits of precision. Suppose that a Kansas citizen could arrange to have a child with and then sue a person whose income was $1 trillion per month, or roughly the same as the aggregate income for all 325 million Americans. This would result in a monthly child support entitlement of $362,321,222. With 10 digits of precision, the entitlement of this child support plaintiff, who could buy a new Boeing airliner every week and have enough left over to build an airport once per month, could be calculated to the nearest dime. The economists who put forward this 10-digit constant note in their report that it is based on estimates from the USDA. And that the USDA estimates themselves are based on a Census Bureau survey of 21,000 households (out of about 125 million U.S. households total). As Kansas contains less than 10 percent of the U.S. population, presumably the survey in Kansas was only about 2,000 households. From this data set the state put forward a child support formula with more digits of precision than the world's physicists, after more than 200 years of experimentation, have been able to assign to the gravitational constant. The Census Bureau itself says that, in the best case of everyone surveyed giving them perfect and precise answers to questions such as "How much did you spend on food last week?", their numbers contain errors of at least 1 part in 100. Their statisticians note further than they have no way of estimating "nonsampling error" that is due to people giving them incorrect information.]
Once established, a stream of child support revenue in Kansas is only moderately secure. To ask the court for a new schedule, which might result in a change to child support cash flow, a parent needs to show a "material change in circumstances." According to Moore, a child growing up from toddler to elementary school age would be considered a "material change." A parent receiving child support does not face a great risk from the child him or herself: "The child's wishes are to be considered under the statute," says Moore, "but as a practical matter there is no time when a child's wishes as to where he/she lives and how much time he/she sees the other parent are an overriding factor. Judges don't want to give children that much power." Unlike in some other states, a Kansas court will not order a parent paying child support also to purchase life insurance (a child support recipient anxious to protect the revenue against the risk of the payor's death could purchase the insurance as his or her own expense, however).
Moore said that a "walk-away" prenuptial agreement, in which parties kept separate property separate and waived alimony, would be valid in Kansas (assuming adequate disclosure and representation at the time of signing).
The average hourly wage in Kansas is $18.53 per hour. March 2014 Census data show that median incomes for college graduates, age 22-36, are $46,000 per year for a college-educated woman ($35,069 after income taxes) and $50,000 for a man ($37,579 after taxes). Attending college in Manhattan for four years will cost $82,920. How is that possible when New York University estimates a total cost of $74,000 for just a single year? That's the difference between Manhattan, New York and Manhattan, Kansas, home to Kansas State University! According to the Tax Foundation, Kansas collects 9.4 percent of state residents' income to run state and local government, slightly lower than the national average and much lower than New York's 12.6 percent.
The average annual cost of child care is $11,023 for an infant and $8,305 for a four-year-old. The total cost of child care from age 0 through 12 is about $59,836 in commercial settings or $40,538 in a family care setting.
The male college graduate will have an after-tax spending power of $443,146 after 14 years of working (14 years of income minus taxes and the cost of college). After adjusting for the USDA's estimated costs of caring for a child, he would be financially better off collecting child support when that support is $2,802 per month ($33,624 per year) or more. If you thought that high school math was never going to useful, note that the economists' formula can be inverted to solve for the necessary defendant's monthly income:
( desired_child_support / 3.62080856 )^(1/0.666690684)
For the plaintiff seeking to collect $2,802 per month, Wolfram Alpha tells us the defendant must have an income of $21,520 per month ($258,237 per year, pre-tax). With two children from two different mothers he could have an after-tax spending power larger than from going to college and work if each mother paid $1,776 per month, which is possible when each mother earns $130,314 per year.
The female college graduate will have an after-tax spending power of $408,046 over the same time period. She would be better off collecting child support when that exceeds $2,639 per month. This corresponds to a father earning about $236,035 per year before taxes. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,694 per month from each one. This should be possible within the guidelines if each father earns at least $121,394 per year.
Although Kansas offers unlimited profits for taking care of your own child, being a foster parent will yield a maximum of $8,000 per year.
Of the Kansans surveyed by the U.S. Census Bureau in March 2014 who were collecting child support, 100 percent were women.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
"Kansas courts almost always award joint legal custody," said Moore, referring to what some other states called "decision-making." What about the parenting time schedule? "More likely than not mom will be 'primary' in that she will have more parenting time with the kids than dad," she responded. "Dad would have four hours with the child on Tuesdays and Thursdays and six hours on Saturday. Overnights with dad would generally start at age three." What would be the basis of awarding what other states would call "sole physical custody" or "primary residential parent" to the mother? "Kansas puts a lot of weight on the historical primary caretaker," Moore replied. "Judges will, however, give dad a chance to step up and show that he can be involved." [See the Citizens and Legislators chapter for the research psychologists' perspective on courts trying to figure out who was the historical primary parent.]
Will the custody dispute be resolved just with lay witnesses testifying and a judge deciding? "If people have money and at least one wishes to fight there will usually be a psychological and/or parental evaluation," said Moore. "For lower-earning folks the court will appoint a Guardian ad litem to represent children." What are the qualifications of a GAL in Kansas? "The GAL will be an attorney and cannot testify or issue a written report, but can file pleadings on behalf of the 'best interests of the children.' Oftentimes the GAL tries to mediate a resolution between the parties." What do litigants spend on the GAL? "It can be as little as $1500 at $175 per hour for uncomplicated cases," said Moore, "to more than $10,000 in complex cases."
Given that the father has no profit from his photography business, how will his income be established for calculating child support? "If there is no recent history of earning," Moore responded, "income will be imputed at minimum wage and he will pay about $174 per month."
What are the financial stakes in the custody dispute here? If the father were to win more parenting time than the mother, the mother would pay him roughly 2,254 per month, based on her after-tax earnings of $16,337 per month (source: ADP Paycheck Calculator, filing single). Over 17 years. therefore, the mother will have roughly $500,000 more to spend, after taxes, if she can become the primary parent.
The father here can expect a 50-percent division of the marital property, which would include any increase in value in the mother's premarital assets. Can he continue his stay-at-home lifestyle? "Spousal support would be for one third the length of the marriage," said Moore, "and support paid during litigation is subtracted from the total time." How much would it be? "Roughly $5,165 per month, at which point his child support obligation would increase to $645 per month," responded Moore. "Spousal support guidelines vary by country and can be anywhere from 15 to 20 percent of the difference in income."
Can the low-income defendant here get the court to order the high-income plaintiff to pay his legal fees? "That is very discretionary [with the judge]," said Moore. "It is unlikely in a short-term marriage. His fees would probably be subtracted from the assets he receives."
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
What if both parents storm into court demanding to be designated primary? "The court can award 50/50 custody but will not usually do it unless GAL recommends it. There has been a huge shift in the last five years," Moore said. "Previously 50/50 was never ordered. Judges simply didn't think it was appropriate. Most are still reluctant to order it when parties don't agree to it as it requires such a high level of cooperation between the parents. When I am serving as a GAL, sometimes I recommend a 50/50 parenting schedule because it stops the fighting. If parents are both able to perceive themselves as equal it can diffuse the situation and make co-parenting easier."
Given the Kansas focus on finding the primary historical caretaker, would a parent in this scenario benefit from pre-lawsuit planning, e.g., by volunteering for all child-related tasks prior to suing? "That can work," said Moore, "but only if you were to start it a year in advance. Sometimes people find that it is hard to maintain."
By awarding sole parenting if parents don't agree, do Kansas courts reward (with custody and child support cash) a parent who generates conflict? "Yes and no," said Moore. "It depends on the judge. Some judges faced with a super high-conflict family will award 50/50 just to stop the fighting. In other cases they will try to figure out which parent is responsible for the conflict." How is that done? "It is a hard factor to prove, but one element would be the ability of a parent to respect the bond with the other parent." What are some examples of a lack of respect for this bond? "Not allowing a child to contact dad on phone, not allowing extra time for events that come up. Rigidity, e.g., not allowing a minute extra. Refusal to grant make-up time, e.g., if dad has given a few weeks of notice that he wants to swap a weekend."
How can these issues be explored at a one-day trial? "That's why if there is a trial scheduled there is a GAL or home study done in advance of the trial," said Moore.
Kansas is unusual in that even when there is a 50/50 custody arrangement between two parents who have equal incomes, there can still be a fight about child support. "There are three ways to handle child support in a 50/50 situation," explained Moore. "Way 1 is a shared expense in which the parents agree to pay particular expenses from an exhaustive list, e.g., dad pays for soccer, mom winter clothes, dad summer clothes, etc. This is only when parents agree; courts have no authority to order it. Way 2 is a parenting time adjustment in which one parent pays for direct expenses and the other parent gets a 15 percent reduction in child support paid. This inevitably results in a fight about who will get to be the parent paying the direct expenses of the children. Way 3 is an 'equal parenting time adjustment,' which is a much more significant reduction, but results in the same fight as Way 2 as each parent wants to be the one to pay the direct expenses of the children."
What would the financial implications of the different methods be here? "Under Ways 1 and 3, dad pays nothing. Under Way 2, one parent pays the other $1,400 per month." I.e., under Way 2 one parent would pay the other $16,800 per year and therefore be running a four-bedroom household with $33,600 less to spend each year than the other parent. That's nearly a $500,000 difference in wealth by the time these children age out of the system. How do people resolve which method will be used and which parent will pay the other? "There is no way to predict if it will be the mother or father who pays direct expenses and receives child support. I have had full-day trials just on this issue," said Moore. A full day? What goes on in the courthouse? "I have presented exhibits showing the actual cash flow of the parents versus the actual expenses and the effect of the child support payment/receipt by each parent."
[Note that an economist would infer from the above behavior that Kansas child support guidelines provide more cash than the actual direct expenses of a child. Otherwise people would not fight to try to be the one designated to receive the cash while being responsible for the expenses. This tends to confirm the research of UCLA Professor of Economics William Comanor (see the Methodology chapter) and casts doubt on the USDA's published numbers, which were used by Kansas).]
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
Is the father here locked into the breadwinner role that he voluntarily picked? Yes with respect to custody and child support, according to Moore, but no with respect to alimony. The child will be with the father for a Wednesday overnight and every other weekend. What's the definition of weekend? "More commonly the weekend extends until Monday morning; it is easier on children because it avoids a parent-to-parent exchange," says Moore. "In high-conflict cases the solution is always exchanges at school and daycare." What about summer? "It may be split equally as the Courts tend to view summer differently and allow for a more relaxed parenting schedule," replied Moore.
The wife under the Kansas guidelines gets only 3.5 years of spousal support, nowhere near the "until the youngest child graduates high school" standard of the most pro-alimony states. "There is a cap of 10 years," explained Moore, "even for people who had been married for 50 years. It stinks when you have a client who was a stay-at-home mom for her whole life." Moore predicted that the wife here would receive roughly $4,332 per month in taxable spousal support and $2,799 per month in tax-free child support, giving her an after-tax income of roughly $74,556 per year. (Equivalent to the take-home pay of a single person earning $110,000 per year).
What if the father tells the court that he wants to cut back to four days per week and earn $225,000 per year? "Judges will give a little deference if a parent is taking more time with the children," Moore said, "but not if he wants to cut back from $275,000 to $150,000 per year."
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
"Mom wins the primary parent war given the age of the child and the facts," said Moore. Is the custody determination different because this child is 8 months old instead of 8 years old? "Yes," said Moore. "The threshold is generally 18 months. After that age a judge might not follow the guidelines [that assume a primary/secondary parent relationship] and will be more apt to look at how the child is adjusting to the situation."
The short-term bride here gets "minimal spousal support despite the young baby," according to Moore, but will be entitled to 17 years of child support based on the doctor's salary plus any interest on his $2 million in savings. In a low-inflation environment, where the interest or dividend return on the $2 million was modest, this would be more than $30,000 per year. In a high-inflation environment, where the nominal return went up, it could be much more.
The mother here will also get a 50/50 share of marital property and half of the appreciation in the $2 million, absent a prenuptial agreement.
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
"I handle an increasing percentage of unmarried cases each year," said Moore. "She will undoubtable get custody in the short term as Dad has no relationship with the child." What would the child's schedule be? "It will be the same as if the parents had been married. Maybe a supervised visit or two at the beginning." Supervised despite no indication that the father is unfit in any way? "It may seem unfair because she probably had no experience with a baby either," said Moore, "but that's how it generally is handled. The Court may forgo the supervision in this case because he is a medical doctor."
Can the mother here wait until the child is older before informing the father and still collect full child support, about $475,000 over 18 years? "The statute allows child support retroactive to the birth but the court has discretion to reduce the amount," responded Moore. "In theory she could wait until the child is almost 18."
Moore explained that there would be no reduction in the mother's child support entitlement in the event that she married a billionaire.
The mother in this scenario need not hire an attorney in order to get child support. The state's Child Support Services (CSS) program offers to assist "any family, regardless of income or residency, who applies for our services." For non-welfare mothers, CSS charges a fee of four percent of the money collected. If the mother alleges that the father is abusive, CSS will collect money for her without disclosing her or the child's location. CSS offers to assist with withholding income, driver's license restriction, passport denial, and, if necessary, jailing a parent who is not paying child support. CSS lists "the benefits of establishing paternity." These include child support cash, inheritance cash, life insurance cash, and Social Security cash. The brochure states that "another benefit is having a full family medical history." The child having a relationship with the father is not among the listed benefits.
Kansas calls it "relocation" when a parent wants to move with a child. Is it a pure "best interest of the child" standard, as in some other states? "No, not purely," said Moore. "Parents' interests are also considered. Courts ask What is the reason for the move? What is the effect on the other parent's parenting time? How will it affect the bond?" Does the existing parenting time schedule affect the ease of moving? "Definitely," said Moore. "It is easier to move if it is an every-other-weekend schedule as long as the new schedule can be pretty frequent." Suppose that a custodial mother offers to allow the child to spend every school vacation and every summer with the father. Will she be likely to prevail in a relocation case? "It is too case-specific to predict," responded Moore. "I have had judges go so many different ways on this. It may depend on whether or not mom can avoid the move. The court would always do a home study to evaluate what is in the child's best interest." How much court time will be spent to resolve the dispute? "It will likely be a one-day trial," said Moore, "the same as the initial divorce."
Kansas has been through at least two renamings in hopes of making litigants feel better about losing their children and up to 18 years of child support payments. At some point winning custody became "primary residential parent" but that has now been put aside in hopes of reducing conflict. Moore says that "it has helped a little bit as it reminds the mother and father that they are both parents and neither is superior to the other."
Moore thought that eventually the Legislature or the courts would clean up the uncertainty regarding child support in a 50/50 parenting situation. At some point in the coming years she also expected to see statewide guidelines for parenting time. [The 2016 guidelines do contain this to some extent.]
What did Moore want to see? "More flexibility on child support. It is frustrating when parents agree to a parenting schedule and have come up with a number that they think is fair. Currently the court has to order a higher number from the guidelines."