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Frequently Asked Questions

FAQ

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FAQ CATEGORIES

Domestic

Real Estate

Commercial

Wills, Trusts, and Estates

Alternative Dispute Resolutions

Government Law

Bankruptcy

Domestic FAQ

Does it make any difference in a divorce case as to who files first?

This depends on whether there is an issue regarding temporary possession of a residence, temporary custody of children and temporary child support. The party who files the action normally asks the court to enter orders on these matters, in an "ex parte" conference. This means the other party is not present. If the other party does not agree with the temporary orders, the court will schedule a hearing as soon as possible, but this does involve some delay and additional expense.

My ex-husband has not had any contact with our children for over 4 years. Is it possible for my new husband to adopt them?

Yes. While some step-parent adoptions are done with the consent of the non-custodial parent (they have an incentive to agree because their child support obligation is terminated by the adoption), the law also allows such an adoption without the consent of the non-custodial parent if they have failed or refused to assume the duties of a parent for 2 years prior to the filing of the adoption petition.

When my wife and I were married 6 months ago, she had a large number of assets and I had none. We now want to get a divorce. Will the court give me half of my wife's assets?

With such a short marriage, it is likely that the court would try to put the two of you back in the same position you were at the time you were married. It would be very unusual for a 50/50 division to be ordered.

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What are the residency requirements for a divorce in Kansas and where can the divorce be filed?

You must be a resident of the State of Kansas for 60 days or more before you can file a divorce. The divorce action can be filed in any county where either of the married parties reside, or in any county in the state where the other party can be served with process (documents to start the divorce case).

Is marriage counseling required in a divorce case?

No. Our judges in the Ninth Judicial District (McPherson and Harvey Counties), do require that parents of minor children attend a Divorce and Child Impact Education Class to acquaint them with the impact of divorce on children. The court can order marriage counseling if one of the parties makes that request, but it is not done automatically.

Our ex-daughter-in-law will not allow us any contact with our grandchildren. Will the courts help us out in this regard?

Most likely, the answer is yes. Kansas law provides for grandparental visitation. This is most valid in situations where the grandparents' child (either the mother or father of the children) is not in the area and does not exercise frequent visitation with the children. It is also helpful to be able to show a substantial and positive relationship between the grandparents and the grandchildren.

My wife has filed for divorce and obtained Temporary Orders saying that I need to get out of the house immediately. Do I have any recourse?

Yes. You are entitled to a hearing on the Temporary Orders within 10 days, after you request such a hearing. You should do this as soon as possible. If you do not request a hearing contesting the Temporary Orders, you need to follow them to the letter.

My wife and I wish to file for divorce. We don't think there will be any dispute. Is it possible for one attorney to handle the divorce for us?

Yes and no. An attorney can only represent one of you, not both of you. If the one of you that is not represented by the attorney understands all of the documents and agrees with them, you may be able to avoid hiring a second attorney. One attorney cannot advise both as to what is fair and equitable. He or she can only give such advice to their client.

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My husband and I are getting a divorce. Being the mother, would I automatically get custody of the children?

Not necessarily. First, joint custody is preferred and the Court would need to make specific findings as to why joint custody was not appropriate in order to approve a sole custody arrangement. The guiding principal in custody determinations is what is in the "best interest of the child or children." A husband and wife or mother and father start off on equal footing. The Court has to determine who would be the best residential parent for the children.

My spouse has just filed for a divorce and our home is in my spouse's name only. Does that mean that my spouse gets the house?

Not necessarily. The court may consider and divide property owned by the parties jointly or individually in determining what is a fair and reasonable division. The fact that certain property is titled in only one spouse's name, normally, makes no difference.

Does the amount of child support change as time goes by?

In many instances, the answer is yes. There are three age classifications for child support. 0-5, 6-11 and 12-18. Anytime a child moves into an older age category, the support could be adjusted. Also, if either you or your ex-spouse's income significantly increases or decreases, that is another legitimate reason to adjust the child support.

Can my spouse and I agree on the amount of child support, even if the child support guidelines would provide something different?

Generally this can be done. There are a number of reasons for adjusting the child support to some amount you would agree upon. As long as they are legitimate, this would most likely be approved.

How is child support determined in Kansas?

The Kansas Supreme Court has adopted child support guidelines which are used to calculate support. The support is based on both parents' incomes, the cost of health insurance, any work-related day care expense and the number and ages of the children. There are some variables that can enter into this, such as long-distance visitation cost, income tax considerations and the overall financial condition of the parties. If you have the approximate income of both parents, the cost of health insurance, any work-related day care expense and the number and ages of the children, most Kansas attorneys can give you a good estimate of the amount of child support.

Real estate

If I have a buyer for my real estate, can I have your firm handle the entire transaction?

Yes, we prepare real estate contracts, deeds, write title insurance and handle closings.

What is title insurance?

Title insurance is a policy of insurance issued by a title insurance company, insuring that title is as stated in that policy. The policy amount is normally the purchase price of the property. Lenders also require a lender's policy of title insurance, insuring their mortgage, in the amount of the mortgage.

In real estate contracts, I see terminology indicating that real estate taxes will be "prorated" to date of closing. What does this mean?

Real estate taxes for the current year are not known until November of that year. The first half is not due until generally December 20 and the second half is not due until June 20 of the following year. When a real estate transaction is "closed," the seller pays for taxes that are due up to the time of closing and the buyer pays for taxes due thereafter, if the taxes are to be prorated. For example, if the taxes on property are $2,400.00 per year and the transaction is closed on June 30, each party would pay $1,200.00 in taxes. Either the seller can take a reduction of $1,200.00 in the sales price, or the seller will need to pay the buyer for one-half of the taxes. Since taxes are not known for that year until November, the tax proration is usually based on taxes for the previous year.

What is joint ownership of real estate?

This can take on 2 forms, "tenants in common" and "joint tenancy." When people own property as tenants in common, they own what are called "undivided interests." When one of the joint owners dies, their interest is included in their estate. The other owner or owners still own their undivided interests. Joint tenancy ownership, on the other hand, includes the right of survivorship. If two people own property as joint tenants, on the death of one of them, the survivor automatically owns the full estate in the property.

Commercial

I'm buying a business. Do I need a written contract?

We certainly would advise a written contract in every such situation. It is important that specific assets and liabilities that are involved in the transaction be clearly stated and all agreements between the parties be put in writing. This is the case for two reasons. Occasionally, someone will be dishonest or deceptive in such a transaction. While that is not usually the case, it can happen. More commonly, however, is a situation where one party understands one thing and the other party another. A written contract gets all of these matters out in the open so, hopefully, there are no misunderstandings. It is also important to check certain records to determine if there are any types of liens outstanding against any of the business assets.

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I am a small contractor and did some work to improve someone's real estate. Can I obtain a mechanic's lien?

Yes. If you are a general contractor, you have 4 months from the date labor or materials were last furnished to the property to file a lien. If you are a sub-contractor, you have 3 months. Usually, this precipitates some action by the homeowner to pay the debt. If it does not, you have one year from the date your lien is filed to file a foreclosure action to have the property sold to satisfy your lien.

A customer of mine recently filed for bankruptcy. Does that mean I will not get paid?

Not necessarily. In some bankruptcy cases, there are assets and the creditors will receive a pro-rata distribution of the assets. If it is a no asset case, you probably will not receive anything.

I am thinking of starting a new business. What type of entity is best for someone in my position?

There are a number of options including sole proprietorships, partnerships, limited liability companies and corporations. Each one has advantages and disadvantages. We always advise business clients to first consult with their accountant.

I have some customers who are not paying their bills. Will it cost me more than it is worth to file a lawsuit to collect the bill?

First, you need to make a determination as to whether or not this customer can pay the bill or has assets to satisfy the bill or any judgment you obtain. Filing fees with the court range from $122.00 to $178.00, depending on the amount of the debt. Some law firms will handle collection cases on a percentage basis, which means they charge you nothing until an amount is collected. Also, you may file an action in small claims court (where no attorneys are involved) for amounts up to $4,000.00.

I am just starting a new business. I see monthly statements from a number of businesses that charge 18% interest on any balances that are more than 30 days old. Can I simply start doing this on my statements?

Only if you have taken certain steps. First, to charge that rate of interest, you must have a certificate from the Kansas Uniform Consumer Credit Commissioner's Office. These are very inexpensive. Also, you need to have an agreement by the customer to charge interest. Most businesses are not aware of these requirements and are not in compliance with Kansas Law. In order to get an agreement from the customer to charge interest on past due accounts, it should be in writing. The best practice is to have the customer sign some type of new customer account card at the time you first do business with them, agreeing to pay interest on past due accounts at the highest amount allowed by Kansas Law.

wills, trusts, and estates

My wife and I have two small children. Who raises them if something happens to both of us?

If you have a Will or Trust that appoints guardians and conservators, the Court would appoint whoever you have chosen, unless for some reason they are not fit to serve in that capacity. Otherwise, the Court has to make a decision, sometimes over competing interests of both sides of the family. Normally, the families are able to work this out, but if you have this designated in your Will or Trust, you could have peace of mind that your wishes would be carried out.

I moved to Kansas 5 years ago from another state. I had an attorney in the other state draft a Will and Trust for me. Do I need to have it changed?

Generally, if you are satisfied with the Will or Trust, it will not need to be changed, so long as it was valid in the state where it was drafted. It is not a bad idea to have your Will and/or Trust reviewed every 5-10 years, in any event.

I don't have a Will, but I do have a durable power of attorney. Do I need a Will?

A durable power of attorney simply allows someone to transact business for you while you are living. On your death, the power of attorney is terminated. In other words, a durable power of attorney is not a substitute for a Will or some other estate planning document or device.

I am 75 years of age. Should I add my children's name to the deed for my home?

This simple question actually has a fairly complicated response. If you do this and later decide to sell your property, all of your children and their spouses must sign the deed. Further, if one of your children goes into bankruptcy, is involved in a bad automobile accident or creates some other type of liability, this property could be an asset which would be attached by the bankruptcy trustee or creditors. You should consult your attorney and fully understand all of the potential problems before you do this.

What is a Living Will?

Actually, it is not very well named. By statute, it is known as a Declaration of Natural Death. This is simply a statement by an individual directing that in the event they have a terminal condition and there is no hope of recovery, that their life not be prolonged by artificial means, i.e., life support equipment. The opinion that the condition is terminal and there is no hope of recovery must be held by two physicians, one of which is the treating physician.

Where should I keep my original Will?

At least in the State of Kansas, it is best to keep your Will in a safety deposit box if you have one. If not, some other safe and secure location should be selected. You may want to contact the attorney that drafted your Will to see if they have a safe in their office. Kansas law provides that the family members may have the safety deposit box opened in the presence of a bank officer. The Will may be removed to be delivered to the person named as the executor to file it with the District Court. In some other states, a safety deposit box may not be the best place to keep a Will, but in Kansas, it is.

My father's health is not good. Is it too late for him to make a Will?

As long as he is mentally competent and knows the general nature of his property and who he wants to receive it, he could still execute a Will.

My mother is in poor health and needs someone to assist her with financial matters. How can I do this?

Assuming that your mother is mentally competent, a durable power of attorney for financial matters would allow you to transact business on her behalf. If she is not mentally competent, it may be necessary to establish a guardianship and conservatorship through the District Court. Also, she may want to consider a durable power of attorney for health care decisions that would allow you or some other person to make health care decisions if she is not able to do so at that time.

I have three children and ten grandchildren. I want to make gifts to them but do not want to pay any gift tax. Can I accomplish this?

Yes, if your gift to each person, each year, is $13,000.00 or less. You can give $13,000.00 per year, per person. For example, you could give to a son and daughter-in-law, $13000.00 each in December and $13000.00 each in January and not be subject to any gift tax. This applies to any person, whether or not they are family members.

Some people have told me I need to have a Will and others have told me that I need to have a Living Trust. I am confused. Which is best?

Wills and Living Trusts each have advantages and disadvantages. It is not possible to go into a full discussion in this format. However, as a general rule, an advantage of Wills is that they are simple and inexpensive to prepare. A disadvantage is that there is normally more expense and time involved in wrapping up someone's estate when they have a Will. Living Trusts are much more expensive to establish and a little more cumbersome to work with during someone's lifetime. However, the main advantage of a Living Trust is that it avoids probate and is generally less expensive and takes less time to conclude and wrap up someone's estate when they die.

alternative dispute resolutions

What advantage does mediation have over the court system?

Generally, mediation is quicker than the judicial system, less expensive and allows the parties a higher degree of satisfaction if they are able to reach an agreement. Parties generally feel more positive if they are able to reach their own agreement, rather than having a judge or jury decide these matters.

What is the difference between mediation and arbitration?

Simple put, the main difference is that an arbitrator makes a decision after listening to all the evidence and a mediator is simply a facilitator. A mediator tries to help the parties come to their own decision or agreement.

My husband and I are having a boundary line dispute with our neighbors. Our neighbor's attorney has suggested that we go to a mediator. Will the mediator make a decision in this case after listening to all parties?

No, a mediator does not make a decision. The mediator simply tries to open lines of communication to help the parties come to an agreement that is workable for everyone involved. No resolution of the matter is made unless you agree.

government law

I noticed in the paper the other day that the City Council will be discussing an issue related to my neighborhood. Is it possible for me to receive a copy of the minutes regarding these discussions?

Yes. The Kansas Open Records Act requires that all public records shall be open for inspection by any person unless otherwise provided by the Act. A "public record" means any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in possession of any public agency. . .". Under the Act, an individual is allowed to obtain copies of the public records. You may be required to pay a minor fee for the reproduction of the record.

I was at a restaurant the other evening and saw two of the city council members visiting at a table. Isn't that a violation of the open meetings law?

Not necessarily. As used in the Kansas Open Meetings Act, a "meeting" means any gathering, assembly, telephone call or any other means of interactive communication by a majority of a quorum of the membership of a body or agency for the purpose of discussing business or affairs of the body or agency. If the two of them did not constitute a majority or quorum of the members, or if they were not discussing business affairs related to city matters, there would be no violation of the law.

bankruptcy

Where can I file?

The state of Kansas has three seperate divisions in which to file a bankruptcy petition. They are Wichita, Topeka and Kansas City. Depending on where a debtor lives and the convenience to each court may determine where a debtor wishes to file. As long as a debtor is a resident of the state of Kansas, he/she may file in any of the three divisions.

Will I lose my home if I file for bankruptcy?

In the state of Kansas, probably not. However, depending on an individual debtor's situation, it may prove prudent to give up your home. This should be assessed by each debtor individually. Kansas does allow for a homestead exemption.

What is the difference between a secured debt and an unsecured debt?

Secured debt is that in which you have given a security interest in a piece of property. A good example of this is a car loan. If the debtor takes out a loan from a bank to pay for a new car, the bank will most often take out a secruity interest in the vehicle. The car becomes collateral and if the debtor does not pay on the loan, the creditor may reposess the vehicle to pay off the loan. Unsecured debt, on the other hand, is debt wehre there is no collateral. There is no property for the creditor to repossess to help pay off the loan. A good example of unsecured debt is a credit card.

How do I know if I should file for bankruptcy protection?

Every case and every debtor are different. To determine whether a debtor should file for bankruptcy protection, an overview of the situation must first be assessed. Often, a debtor may find it in their best interest to wait and file a bankruptcy petition. Many factors come into play in this determination, including the type of debts, family size, income, amount of assets and future events. The best way to determine if you should file for bankruptcy protection is to meet with an attorney and discuss individualized options.

Karstetter & Bina

FAQ

FAQ CATEGORIES

Domestic FAQ

Real estate

Commercial

wills, trusts, and estates

alternative dispute resolutions

government law

bankruptcy

Your case

deserves
the best

Karstetter & Bina

FAQ

FAQ CATEGORIES

Domestic FAQ

Real estate

Commercial

wills, trusts, and estates

alternative dispute resolutions

government law

bankruptcy

Your case

deserves the best

deserves
the best