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What Are the Legal Grounds for Modifying a Divorce Decree?

Divorce decrees are not permanently fixed. Life evolves, and these changes often require legal adjustments. In Kansas, to amend a divorce decree, you must show that there has been a considerable shift in circumstances. Such changes might include variations in income, moving to a new location, or alterations in a child’s needs. The court needs to be convinced that the changes are significant enough to justify a modification. Merely being dissatisfied with the original terms does not suffice.

Understanding the Requirements for Modification

To modify a divorce decree, understanding what constitutes a “substantial change” is crucial. For example, losing a job or experiencing a significant drop in income may justify changing alimony or child support. Likewise, if one parent intends to relocate out of state, this could impact custody arrangements. The critical factor is proving that the change is material, ongoing, and not minor or temporary. Kansas law requires that the change be unexpected and not something that could have been foreseen when the original decree was issued.

What Steps Do I Need to Take to Modify a Divorce Decree?

Once you have confirmed valid grounds for modification, it’s time to proceed. The process involves several important steps, each vital for a successful outcome.

Filing a Petition for Modification

The initial step is submitting a modification petition to the court that issued your original decree. This document details the modifications you are requesting and the reasons for them. Be precise and straightforward, supplying evidence to support your claims, such as financial documents, employment records, or other pertinent information. Ensuring timely and accurate completion and submission of all paperwork is crucial, as mistakes can delay the process.

Serving the Other Party

After you file your petition, you must provide the other party with a copy. This ensures they are informed about your request and can respond. Depending on the situation, you can serve documents through a process server or via certified mail. Proper service is essential to uphold the legal rights of both parties and maintain a fair and transparent process. 

Attending a Court Hearing

A court hearing will be arranged once the other party is served. During this session, both sides will present their cases. The judge will examine the evidence and make a decision based on what is best for everyone involved, especially any children. Thorough preparation for this hearing is crucial because the judge’s decision will heavily depend on the evidence and arguments you present.

Can I Modify Child Custody and Support Orders?

Child custody and support modifications can be contentious parts of a divorce decree. Fortunately, Kansas law allows for changes in these areas if specific conditions are met.

Factors Considered by the Court

When evaluating a request to modify child custody or support, the court examines various factors. These include the child’s best interests, parents’ financial situations, and any changes in living arrangements. The goal is to make sure the child’s requirements are fulfilled and that both parents share responsibilities equally. Additionally, the court might evaluate the child’s bond with each parent, how well the child adapts to their home, school, and community, and each parent’s readiness to foster a healthy relationship between the child and the other parent.

Seeking a Modification for Child Support

To adjust child support, you need to show a significant change in financial circumstances. This might stem from job loss, a new job with a different salary, or changes in the child’s needs. The court will assess the evidence and modify the support order accordingly. It is crucial to note that the Kansas Child Support Guidelines will be applied to determine the appropriate support amount, ensuring the child’s financial needs are met.

Seeking a Modification for Child Custody

Changing child custody requires demonstrating that the change serves the child’s best interests. This could involve a parent’s relocation, changes in the child’s needs, or concerns about the child’s welfare in the current setup. The court considers all relevant factors before deciding. Presenting a persuasive case showing how the proposed changes will benefit the child is vital for improving their overall well-being.

What Happens After a Divorce Decree Modification is Granted?

Once the court approves a modification, understanding what follows is important. Implementing and enforcing the new orders is essential to ensure compliance and prevent future disputes.

Implementing the Modified Orders

After a modification is granted, both parties must follow the new terms. This may involve altering child support payments, modifying custody arrangements, or updating financial records. Effective communication and cooperation are crucial for a smooth transition. Keeping detailed records of any changes is also vital, as this documentation can be invaluable in future disputes.

Enforcing the Modified Decree

If one party does not comply with the modified decree, legal action might be necessary. This could include filing a motion for contempt or seeking enforcement through the court. An attorney can assist with these steps, ensuring your rights are protected. It is crucial to act promptly if non-compliance occurs, as delays can complicate the enforcement process and potentially affect your case.

How Can an Attorney Help Me with Modifying a Divorce Decree?

A knowledgeable attorney can help you comprehend your rights and responsibilities under Kansas law. They can assist in gathering evidence, handle necessary paperwork, and represent you in court. Their expertise can significantly impact the outcome of your case. An attorney can also provide strategic guidance on effectively presenting your case, enhancing the likelihood of a favorable result.

Working with an Attorney to Navigate the Legal Process

An attorney can guide you through each step of the modification process, from petition filing to court hearings. They can help you build a strong case and advocate for your interests, ensuring your voice is heard. With their support, you can confidently navigate the legal complexities, knowing you have a dedicated professional on your side.

If you need to modify an existing divorce decree, contact Barnds Law LLC today at 913-514-0909 for an initial consultation.

What Happens to Military Retirement Benefits in a Divorce?

Dealing with a divorce can be a daunting process, and when military retirement benefits are part of the equation, it becomes even more complicated. A crucial piece of legislation in these scenarios is the Uniformed Services Former Spouses’ Protection Act (USFSPA). This federal statute permits state courts to regard military retirement pay as marital property, which may be divided between spouses during divorce proceedings. However, this law does not automatically entitle a former spouse to a share of the benefits; rather, it establishes a legal framework for states to apply their laws regarding the division of marital assets.

In Kansas, like many states, several factors are considered when determining how military retirement benefits are divided. These include the duration of the marriage, the time the marriage coincided with military service, and each spouse’s contributions to the marriage. While Kansas courts may award up to 50% of military retirement pay to a former spouse, this is not a guarantee. The court’s decision will hinge on the unique circumstances of the marriage and divorce.

Understanding the legal intricacies is necessary for anyone navigating a divorce involving military retirement benefits. It’s not solely about splitting assets; it’s ensuring that both parties receive a proportionate share based on their roles and the marriage’s length. If you’re in this situation, be aware of your rights and the legal procedures involved.

Understanding the Uniformed Services Former Spouses’ Protection Act (USFSPA)

Enacted in 1982, the USFSPA addresses how military retirement pay is divided during divorce proceedings. It empowers state courts to consider military retirement pay as marital property, which is subject to division. However, the law does not specify how benefits are to be divided; that responsibility lies with state courts. As a result, the division of military retirement benefits can differ significantly based on state laws and case specifics.

Factors Considered in Dividing Military Retirement Benefits

When determining how to allocate military retirement benefits, Kansas courts examine multiple elements. The marriage’s length plays a crucial role, as does the overlap between the marriage and military service. Additionally, the court evaluates both financial and non-financial contributions of each spouse, such as homemaking, child-rearing, and support for the military spouse’s career. The court aims for an equitable distribution of assets, considering each case’s unique circumstances.

What Happens if a Former Spouse Remarries?

Remarriage can have significant effects on military retirement benefits. If you’re a former spouse receiving a portion of these benefits, understanding how remarriage might impact your financial situation is crucial. Generally, once the court has decided on the division of military retirement pay, this arrangement remains unchanged regardless of either party’s marital status.

Impact of Remarriage on Military Retirement Benefits

While remarriage typically doesn’t alter the division of military retirement pay, it can influence other financial aspects, such as alimony. Remarriage may result in reduced or terminated alimony payments. It’s essential to review your divorce decree and any related agreements to grasp how remarriage might affect your finances.

If you’re considering remarriage, it’s prudent to seek advice from a family law attorney. They can help you comprehend the potential consequences for your military retirement benefits and other financial arrangements, enabling you to make informed decisions about your future.

Are Survivor Benefits Available for Former Spouses?

Survivor benefits are a crucial consideration for former spouses of military personnel. These benefits offer financial support if the service member passes away. However, eligibility for survivor benefits can be complex, making it essential to understand your available options.

Eligibility for Survivor Benefits

To qualify for survivor benefits, a former spouse must meet certain criteria. The most common form is the Survivor Benefit Plan (SBP), which provides ongoing income to a designated beneficiary following the service member’s death. To be eligible for SBP, the former spouse must have been married to the service member for at least 10 years, during which the service member completed at least 10 years of creditable military service.

Options for Former Spouses to Receive Survivor Benefits

Former spouses can receive SBP coverage if the service member elects to provide it, either at retirement or through divorce negotiations. Addressing SBP coverage during divorce proceedings is vital to ensure the former spouse’s protection. If SBP coverage isn’t elected at retirement, obtaining it later can be challenging.

If you’re a former spouse seeking survivor benefits, understanding your rights and options is crucial. Consulting with a family law attorney can help you navigate the complexities of SBP and other survivor benefits. They can assist you in negotiating favorable terms during your divorce, ensuring your financial future remains secure.

How Can a Family Law Attorney Help Protect Your Military Retirement Benefits?

Enlisting the help of a family law attorney can significantly impact the outcome of your divorce involving military retirement benefits. These benefits are not just another asset; they embody years of dedication and sacrifice. A knowledgeable attorney can guide you through the complexities of the USFSPA and Kansas state law, safeguarding your rights throughout the divorce process.

A skilled attorney will delve into your specific situation, including the marriage length and its overlap with military service. They will compile evidence to bolster your case, such as financial records and testimonies about your contributions to the marriage. This information is vital for convincing the court to award a fair share of the military retirement benefits. Additionally, an attorney can explain the tax implications of dividing these benefits, offering advice on minimizing tax burdens and securing financial stability post-divorce. This is particularly important if these benefits are a major income source in your retirement.

If you’re dealing with military retirement benefits in a divorce, call Barnds Law LLC today at 913-514-0909 for an initial consultation.

Can a Grandparent Seek Custody if a Parent is Deemed Unfit?

In Overland Park, Kansas, the question of whether a grandparent can seek custody of a grandchild when a parent is deemed unfit is both complex and emotionally charged. The law recognizes that parents have a fundamental right to raise their children. However, this right is not absolute. The court may intervene to protect the child’s best interests when a parent is considered unfit. Generally, a parent may be deemed unfit if they cannot provide their child a safe and stable environment. This could be due to neglect, substance abuse, or a history of domestic violence. In such cases, grandparents may step in to seek custody, but the process is not straightforward.

What Qualifies a Parent as Unfit in the Eyes of the Law?

The legal definition of an unfit parent varies, but it typically involves failing to meet the child’s basic needs. This could include inadequate supervision, lack of proper nutrition, or exposure to harmful situations. Courts will look at evidence of neglect or abuse, and they may consider the parent’s mental health and criminal history. It’s a serious determination, and the burden of proof lies with the party alleging unfitness. Grandparents must be prepared to present compelling evidence to support their claim.

What Factors Are Considered in Determining Parental Fitness?

When determining parental fitness, the court considers a variety of factors. The child’s safety and well-being are paramount. The court will examine the parent’s ability to provide a stable home environment. This includes looking at the parent’s financial situation, living conditions, and emotional stability. The court may also consider the child’s relationship with the parent and any history of abuse or neglect. 

The court will also evaluate the parent’s mental and physical health. If a parent struggles with substance abuse or mental illness, this could impact their ability to care for the child. However, the court will also consider whether the parent is receiving treatment and trying to improve their situation. It’s a nuanced evaluation, and the court aims to balance the parent’s rights with the child’s best interests.

In addition to these factors, the court may consider the role of other family members, such as grandparents, in the child’s life. If a grandparent has been a significant presence and has provided care and support, this could influence the court’s decision. Ultimately, the goal is to ensure the child is in a safe and nurturing environment.

What Are the Rights of Grandparents in Custody Cases?

Grandparents’ rights in custody cases are not as extensive as parental rights, but they do exist. In Kansas, grandparents can petition for custody or visitation if they can demonstrate that it is in the child’s best interests. This often requires showing that the child has a significant relationship with the grandparent and that maintaining this relationship is beneficial for the child’s well-being.

Grandparents may also have rights if they have been acting as the child’s primary caregiver. In such cases, the court may recognize the grandparent’s role in the child’s life and consider granting custody. However, this is not guaranteed, and the court will always prioritize the child’s best interests.

Grandparents need to understand that their rights are not automatic. They must actively seek legal recognition and be prepared to present a compelling case. This often involves demonstrating the parent’s unfitness and the grandparent’s ability to provide a stable and loving home.

What Legal Steps Can a Grandparent Take to Petition for Custody?

If a grandparent believes a parent is unfit, they can file a petition for custody in family court. This involves submitting legal documents that outline their relationship with the child and the reasons they believe custody should be transferred. The court will then evaluate the situation, considering the child’s best interests. This process can be lengthy and requires a thorough understanding of family law. Grandparents should be prepared for a legal battle, as parents can contest the petition.

What Legal Challenges Might Grandparents Face in Seeking Custody?

Seeking custody as a grandparent comes with its own set of legal challenges. One of the primary hurdles is proving parental unfitness. This requires substantial evidence and can be difficult to establish. Additionally, grandparents may face resistance from the parents, who have a constitutional right to raise their children.

Another challenge is the legal process itself. Custody cases can be lengthy and complex, requiring a deep understanding of family law. Grandparents must be prepared for court hearings, legal paperwork, and potential appeals. This can be both time-consuming and emotionally draining.

Financial considerations are also a factor. Legal fees can add up quickly, and grandparents must be prepared for the financial burden of a custody battle. It’s important to weigh the potential costs against the benefits of seeking custody.

Despite these challenges, many grandparents find the process worthwhile if it means ensuring the safety and well-being of their grandchild. With determination and skilled legal support, grandparents can navigate these obstacles and work towards a positive outcome.

If you are a grandparent seeking custody of your grandchild, call an experienced attorney to protect your rights.

How Can an Attorney Assist Grandparents in Seeking Custody?

Navigating the legal system can be daunting, especially in custody cases. An experienced attorney can assist in gathering evidence to support the claim of parental unfitness. This might include medical records, police reports, or testimony from witnesses. An attorney can also help grandparents prepare for court hearings, ensuring they present a strong case.

In addition to legal representation, an attorney can provide guidance on alternative solutions. Sometimes, mediation or family counseling can resolve issues without the need for a court battle. An attorney can advise on the best course of action, considering the case’s specific circumstances.

An attorney can also help grandparents understand the potential challenges they may face. Custody cases can be emotionally taxing, and having a legal advocate can provide much-needed support. With the right legal assistance, grandparents can navigate the complexities of the legal system and work towards securing a safe and stable environment for their grandchild.

Call Barnds Law LLC today at 913-514-0909 for an initial consultation.

The days are long past when unmarried parents had fewer legal rights or obligations to their children. But it is often more difficult for unmarried parents to secure them. A father must formally prove his paternity to petition for custody unless the mother cooperates. A mother begins with sole custody, but if the father does not help her, she can have an uphill battle for the child’s future.

What do parents in Kansas and Missouri need to do for their children and themselves?

Paternity: Securing Rights to Custody and Support

Legal recognition of paternity is the key to a father’s custody rights and support obligations. Even when the father and mother fully intend to raise the child together, the rights and obligations of the father-child relationship are not safe without formal acknowledgment.

In both states, an unmarried mother will begin her child’s life with sole custody unless the father has made a formal claim (or, rarely, when the state has intervened). If their relationship is rocky, she may well be uncertain whether to pursue a legal declaration of paternity. When the father has been abusive or dangerous, it is not an easy question, and the mother will need advice from counsel about how to proceed carefully. There are options for pursuing child support without personal contact.

The right to the relationship ultimately belongs to the child. A child will need formal proof of paternity not only to seek child support but to assert any future rights to inherit and receive benefits, as well as possible rights and social standing within the father’s extended family.

Kansas

State law assumes a man’s paternity if a child is born during a marriage or when:

• The child was born within 300 days of the end of the marriage
• The parents attempted to marry before or after the birth, but the marriage was legally invalid
• The man’s name appears with his consent on the child’s birth certificate
• He “notoriously” (that is, openly) acknowledges paternity
• He acknowledges it in writing
• He is obligated by a court order or “written voluntary promise” of support
• Genetic testing indicates a probability of paternity of 97% or higher
• Another state or jurisdiction recognizes him as the father

See K.S.A. § 23-2208. To appear on the birth certificate, a father can complete a Voluntary Acknowledgment of Paternity form at the hospital where the child is born. He can also acknowledge it and request an amended birth certificate at a later date, but he will need either the mother’s cooperation or a court order.

A father can bring an action in district court to establish his paternity. See § 23-2209. The mother, the child, or anyone on their behalf may also bring a paternity action, and the state may also do so to pursue child support. The court can order genetic testing for the child if necessary. However, if the child’s paternity is being challenged, the court may order a hearing on the best interests of the child.

Missouri

Laws for presuming paternity in Missouri are very similar. However, in Missouri, blood tests must show a probability of paternity of 98% or higher. See RSMo § 210.822 for further details.

During a pregnancy, an unmarried father can file a Notice of Intent to Claim Paternity with the Bureau of Vital Records. Afterward, he should file an Affidavit Acknowledging Paternity within 15 days of the birth. Filing by that time gives him the right to notice and participation in any adoption proceedings for the child.

A father or another person on the child’s behalf can also request a Declaration of Paternity from the Circuit Court at any time before the child’s 18th birthday. If necessary, a court can give an order requiring DNA testing to confirm the child’s paternity.

Establishing Custody and Support

Ultimately, the rights to child support and relationships do not belong to parents but to children. That is why marital status does not affect rights or obligations to custody or child support.

If unmarried parents can make a reasonable parenting plan together, the court will approve their custody agreement and enforce it if necessary. An unmarried father seeking custody without an agreement needs to establish a record of personal stability, interest, and care for the child as soon as possible.

Courts make custody determinations not according to the parent’s gender but in the best interest of the child. In Missouri, the law presumes—unless shown otherwise—that equal parenting time is in the child’s best interest. See RSMo § 452.375(4).

Kansas and Missouri have the same law about jurisdiction—that is, whether the state court can make rules about a child’s custody. The state must be the child’s home state, either on the date of the custody filing or within six months of that time. See K.S.A. § 23-37.201 or RSMo § 452.740.

Both parents have an obligation to financially support the child, even though child support is mainly paid by parents without primary physical custody. Late child support payments cannot affect visitation or custody rights—these are separate issues.

Don’t Go It Alone

Above all else, families need support. Let our legal team help your family secure what it needs to thrive. Contact us at 913-514-0909 to schedule a meeting with us in Kansas or Missouri—we have offices in Shawnee, Leawood, Olathe, Overland Park, and Lee’s Summit.

When you face felony charges or carry a conviction, you know how hard the world can be. Your career, your social life, even your ability to vote—at every turn, you can lose opportunities.

The good news is that as society gradually changes, the laws are changing as well. Jobseekers with felony convictions now have legal protections in many businesses and parts of the US. College education doesn’t have to be out of reach. Even careers in law or medicine can still be on the table, depending on the state you live in and your circumstances.

What are your options in Kansas and Missouri? How do you handle felony charges with an eye toward the best possible future?

Diversion Programs

If you currently face felony charges, you may qualify for diversion programs through the prosecuting attorney’s office, particularly if you have a clean record otherwise.

A defendant who qualifies for diversion in Kansas has to make an agreement with the prosecutor to meet certain obligations, such as counseling, community service, and regular drug testing. If the defendant follows through with their side of the agreement, the state will dismiss the charge.

Missouri prosecutors also have authority to divert many cases. The diversion program may be called a court, such as Adult Drug Court, Mental Health Court, or Veterans’ Court.

Prosecutors may agree to diversion for many low-level felony offenses, particularly:

• DUIs
• Drug offenses
• Domestic violence

Before allowing a diversion, the prosecutor must consider your personal history, including any criminal record and the nature of the felony charge. Many charges cannot qualify—for example, a DUI defendant cannot receive a diversion if the charging incident involved injury or death. The diversion may remain visible on your record, and although it is far preferable to a felony conviction, it may still raise issues.

Expungement

Expungement refers to sealing or erasing a conviction. Each state has different laws regarding expungement or other types of clearance for criminal records. Generally speaking, convictions for severe offenses—such as murder and sex crimes—can never be expunged. Nonetheless, Kansas and Missouri both offer felony expungement options.

In Kansas, expungement law has a long list of requirements and excluded offenses. (See K.S.A. § 22-6614 for details.) You must wait three to five years after completing your sentence, depending on the nature of the offense. You cannot have pending felony charges or any convictions within the past two years. Even so, Kansas expungement law has a slightly broader range than Missouri’s law.

Missouri law forbids expungement for many felonies, including:

• Class A felonies (those that carry sentences of 10 to 30 years)
• Any felony involving a death
• Any felony requiring registration as a sex offender
• “Dangerous felonies,” a defined list including many violent offenses and/or conspiracy to commit them
• Intoxication-related traffic offenses (as well as intoxicated operation of a boat or an aircraft)

See RSMo § 610.140. Missouri allows an individual to expunge only a single felony offense.

After expungement, the conviction will no longer appear on background checks. You may not even have to disclose it to anyone who asks. However, this will depend on who is inquiring and why. You must still disclose it at some points, such as on sensitive job applications and some applications for professional licenses.

Higher Education and Professional Licensing

Not every school will ask about a criminal background. According to the National Conference of State Legislatures, only 55% of public universities and 40% of community colleges asked applicants about criminal records. The Common Application, which serves 900 schools, does not ask the question. However, 81% of private colleges asked, and the answer can negatively affect admissions.

Graduate programs may ask their applicants because certain professional licenses will be difficult to secure with a felony conviction. This is especially true for careers in medicine, law, child care, and other positions of public trust. However, such careers may still be within reach, depending on the offense, your circumstances, and the state you live in.

In general, you must be honest and show that you are now the kind of applicant the profession needs. You should present evidence such as:

• Character references, especially from members of the profession or prominent community members
• Demonstrations of personal growth and changed circumstance, particularly if the felony was long ago
• Completed drug/alcohol rehabilitation programs, if applicable
• Work or volunteer service to your community

Licensing in the trades can be more open, depending again on where you live and what you intend to do. For example, DUIs or felonies involving a vehicle can disqualify an applicant for a commercial driver’s license (CDL) for several years or for good.

Nonetheless, Kansas law holds that, in general, “[a felony] conviction shall not operate as a bar to licensure, certification or registration.” See K.S.A. § 74-120. Missouri law provides that a conviction should not be a bar “unless [it] directly relates to the duties and responsibilities for the licensed occupation as set forth in this section or is violent or sexual in nature.” See RSMo § 324.012.

Let Us Help

Whether you are just now facing charges or have already completed your sentence, we can work with you to navigate your future. Regulations around diversion and expungement can be complex, and you need experienced and compassionate help. Call us at 913-514-0909 to schedule your first appointment in our Kansas or Missouri offices.

How Are Assets Divided During a Divorce?

During a divorce, the State of Kansas uses the equitable distribution rule to divide assets between both spouses. Equitable distribution means that assets are divided equally, but not necessarily 50/50. Only marital property is subject to equitable distribution, and it is considered to be all tangible and monetary assets acquired during the marriage. Separate property, or property that was owned by either party prior to marriage, usually stays with its original owner.

What are Examples of Marital and Separate Property?

Examples of marital property include but are not limited to:

 

• Income earned by either party during the marriage

 

• Homes, vacation properties, rentals, or other real estate acquired during the marriage

 

• Retirement accounts or pensions funded during the marriage

 

• Vehicles, furniture, art, or other tangible items purchased during the marriage

 

• Investments and business ventures developed during the marriage

 

Examples of separate property may include but are not limited to:

 

• Property owned by one party before the marriage

 

• Inheritances received by one party, even if received during the marriage

 

• Gifts given to one party

 

• Personal injury awards received by one party

 

• Assets documented as non-marital in a prenuptial or postnuptial agreement

 

The distinction between marital and non-marital property may become blurred, classifying the property as commingled. An example of commingled property would be if a home that was owned by one party prior to marriage becomes the family home, and both parties use marriage funds and time to maintain the home.

What Factors Determine How Property is Divided?

In the absence of a prenuptial or postnuptial agreement, a couple may draft their own settlement agreement. If it is fair to both parties, a judge is likely to approve of it. 

 

Otherwise, a judge may decide on equitable division by:

 

• Awarding assets according to ownership or use

 

• Awarding one party property and the other a sum of equal monetary value

 

• Ordering that property be sold and the profits divided

 

A judge may consider the following factors when dividing assets:

 

• The length of the marriage

 

• The age and health of both parties

 

• Both parties’ present and future earning capacity

 

• The effect of debt division and tax consequences for both parties

 

• Other legal issues, such as child support and spousal support

 

Kansas is a no-fault divorce state, meaning that fault by either party does not have to be proven for a divorce decree. However, a judge may consider marital waste or contribution to the demise of the marriage during property division. For example, if marital funds were used for an extramarital affair, the judge may compensate the innocent party by using the property of the guilty party.

How Does a Prenuptial or Postnuptial Agreement Offer Protection During Divorce?

The best way to protect business assets is through a prenuptial or postnuptial agreement. These agreements are contracts signed either before or during the marriage that include how property is to be divided in the event of a divorce. Additionally, these agreements may include:

 

• Each party’s rights and obligations regarding joint and separate property

 

• Each party’s ability to buy, sell, use, transfer, or control property

 

• What happens to assets upon separation, divorce, death of either party, or other event

 

• Whether alimony will be paid to either spouse and the amount

 

For a prenuptial or postnuptial agreement to be legally enforceable, it must be in writing and signed by both parties. Both parties must be of legal age and possess the mental capacity to understand and create the contract. 

 

While it is not necessary to hire a lawyer to create this contract, it is a good idea to review the document with an attorney to ensure it is fair.

 

The agreement should list each party’s assets and debts. While disclosure of these items is not mandatory, a judge may invalidate the agreement if the parties fail to disclose their full financial status truthfully.

What is a Business Valuation?

When a business is considered a marital asset that is to be divided, the Fair Market Value of a party’s business or party’s shares of a business must be determined. A business valuation compares the business’s assets and liabilities, including real and personal property owned by the business, all cash, accounts receivable, equipment, supplies, and other tangible assets.

 

A business’s goodwill may even be valued as an asset, especially in professional practices. The goodwill value is included in the overall valuation to the extent that the business is saleable. 

 

A detailed forensic evaluation may be required to determine the true value and income. When this occurs, the value of the business will be determined by reviewing profitability, tracing cash streams, determining ownership interests, valuing investments, valuing stock held in trust, identifying deferred compensation or retained profits, and identifying and capturing passive earnings. 

 

Once the business or business share has been valued, the asset will be divided. Some options for dividing or maintaining the business include:

 

• Buy-out: One party may buy the shares from the other party

 

• Sale: The business can be sold, and the proceeds divided between both parties

 

• Paycheck: If only one party wishes to maintain the business, the other party may be given a salary or paycheck as compensation

 

• Co-ownership: Both parties may choose to continue co-ownership of the business

How Can Assets be Protected Before a Divorce?

It is important not to wait until a divorce is in progress to decide how business assets will be handled. Precautionary measures to protect assets include:

 

• Prenuptial or postnuptial agreements

 

• Operating agreements

 

• Limitations on the involvement of a spouse

 

• Salary arrangements

 

Do You Need an Attorney?

If you are a business owner facing divorce, you need immediate legal help from whom you can depend. Call Barnds Law LLC today at 913-514-0909 or fill out a contact form to schedule your strategy session.

How are Controlled Substances Classified?

To better understand drug crime defenses, we must first learn how drugs are classified and how crimes are penalized. The State of Kansas categorizes controlled substances into five categories, with Schedule I drugs considered the most addicting and Schedule V drugs the least addicting.

 

• Schedule I: drugs such as heroin, MDMA, mescaline, LSD, marijuana, and psilocybin

 

• Schedule II: drugs such as opium, morphine, oxycodone, cocaine, carfentanil, meth, and fentanyl

 

• Schedule III: drugs such as ketamine, GHB, pentobarbital, and anabolic steroids

 

• Schedule IV: drugs such as Ambien, Valium, Ativan, and Rohypnol

 

• Schedule V: drugs such as cough suppressants or other medicines that contain low doses of codeine or other narcotics

What is Possession of a Controlled Substance?

Possession of a controlled substance occurs if the person in possession has the ability and intention to control it. Police and prosecutors prove criminal possession of a substance in three ways:

 

• Actual possession: The accused individual has physical control of a substance, meaning that the person has it on their body and can control it.

 

• Constructive possession: The controlled substance is not physically on the person but found on or around their property. To prove constructive possession, there must be evidence that the accused individual knew of the drug’s presence and was able to control it. More than one person may be charged with constructive possession of the same drug.

 

• Shared possession: Occurs with the establishment that the accused individual had partial control of the drug if the drug is being shared.

 

Possession of a controlled substance is categorized and punished as follows:

 

• Possession of narcotics, opiates, amphetamine, or methamphetamine: Drug severity level 5 felony, punishable by up to 42 months of prison and a fine of up to $100,000

 

• Possession of Schedule I-V drugs, not including marijuana: Possession of most drugs begins as a class A nonperson misdemeanor. A second violation is penalized as a drug severity level 5 felony. The increased felony does not apply if the drug in possession is a Schedule V drug.

 

• Possession of Marijuana:

 

• First conviction: class B nonperson misdemeanor, punishable by up to six months of jail and a fine of up to $1,000

 

• Second conviction: class A nonperson misdemeanor, punishable by up to one year of jail time and a fine of up to $2,500

 

• All subsequent convictions: Drug severity level 5 felony, punishable by up to 42 months of prison and a fine of up to $100,000

 

• Possession of drug paraphernalia and toxic vapors: it is a class B nonperson misdemeanor to unlawfully:

 

• Use or possess with intent to use drug paraphernalia to ingest drugs.

 

• Possess, by, use, smell, or inhale toxic vapors intending to cause stupefaction or alter the senses of the nervous system.

 

• Drug possession in vehicle: Driver’s license suspension of up to one year if convicted of unlawful drug possession occurring in a vehicle.

 

Other consequences for drug possession charges may include:

 

• Fines and court costs

 

• Probation or parole

 

• Community service

 

• Loss of driver’s license

 

• Criminal record

 

• Difficulty finding employment or housing

How is Drug Possession With Intent to Distribute Penalized?

If a person is in possession of 450 grams or more of a controlled substance, then the law recognizes that as an amount to distribute or to sell. A first-time conviction of possession with intent to distribute may warrant imprisonment of up to 17 years or longer if the following allegations are true:

 

• In a school zone

 

• Crossing state lines

 

• Took drugs to the airport, on bus, train, or boat

 

• The mailing system is used

 

• Gang involvement

 

• Sex crimes

What are the Charges for Drug Manufacturing?

If a person is making or is believed to be making controlled substances, then they will likely face a manufacturing charge. During an investigation, law enforcement will be looking for ingredients or equipment used to manufacture. This charge can apply to:

 

• Growing Marijuana

 

• Mushrooms

 

• Meth labs

 

• LSD

 

• GHB and more

Manufacturing is charged as a level 1 or level 2 felony with up to 25 years of imprisonment.

Is Consent Required to Search Personal Property?

The Fourth Amendment of the United States Constitution protects individuals from unreasonable search and seizure practices. Law enforcement needs a warrant or probable cause to search a vehicle or other personal property. 

 

Typically, an officer cannot search personal property without consent unless there is probable cause. If a person is pulled over for a routine traffic stop, an officer cannot perform a search unless verbal permission is provided or if they have reason to believe there are illegal substances in the vehicle. Possible probable cause reasons include the following:

 

• The officer sees the drugs or paraphernalia in plain view.

 

• The officer has a reasonable belief that the person is involved in criminal activity or possesses evidence related to a crime.

 

• There is a noticeable smell of drugs coming from the vehicle.

 

• A K-9 dog alerts to the presence of drugs in the vehicle.

 

Evidence that is disposed of during a stop or arrest may be obtained without consent or probable cause.

What Other Defenses may be Used for Drug-Related Crimes?

The specific defense that is best suited for a case should be discussed with an attorney. Every case is different. Possible defenses are based on the unique circumstances or events that transpired during the arrest and detainment and include:

 

• Lack of culpable mental state

 

• Lack of evidence

 

• Improper search, stop, or seizure

 

• Miranda warning violation

 

• Not my drugs

Do I Need an Attorney?

If you or a loved one have received drug-related charges and are wondering about possible defenses for your case, call Barnds Law LLC at 913-514-0909 or fill out a contact form to schedule your strategy session today.

What is Guardianship?

Guardianship pertains to the personal and medical well-being of a dependent person. A guardian is responsible for deciding the living arrangements, healthcare, and general welfare of the ward. The arrangement is necessary for individuals who cannot care for or make these decisions for themselves.

What are the Powers of a Guardian?

Kansas Law outlines the duties, responsibilities, powers, and authorities of guardians in a general overview.

A guardianship is a legal mandate petitioned to protect an impaired individual or ward. A guardian must manage a ward’s personal health, safety, and welfare. A guardian’s duties are separate from those of a conservator, but both are subject to the court’s control and discretion.

The court order, which depends on the circumstances and capacities of the ward, will explain the specific details of guardianship, including the duties of the guardian.

What is the Difference Between a Guardianship and a Conservatorship?

As stated, a guardianship is a court-appointed caretaker who oversees the ward’s day-to-day life and needs. A conservatorship, however, focuses only on the individual’s financial affairs.

A key difference between the two is the scope of responsibility. A guardianship primarily deals with the personal and medical care of the individual by ensuring they reside in a secure environment and receive adequate medical care and support. A conservatorship is responsible for financial matters, such as paying bills, managing investments, and protecting assets, because its main focus is maintaining the financial health and security of the ward.

The second main difference between conservatorship and guardianship is that guardians have the legal authority to make personal and healthcare-related decisions on the ward’s behalf, such as choosing where the individual will live, medical consent for treatments, and other decisions impacting the ward’s life. A conservatorship’s decision-making ability is only enforceable regarding the finances of the ward. Their job is to ensure all financial obligations are met, but they cannot make personal or healthcare decisions unless they are also the appointed guardian.

Who is Eligible to File for Guardianship?

The role of a guardian is vital, and the person who is appointed this title must be capable and trustworthy. Eligibility for the role of guardian is taken very seriously to uphold these standards. 

 

To file for guardianship of a minor, the proposed guardian must meet the following criteria:

 

• The guardian must be a legal adult who is 18 years of age or older and must demonstrate an ability to make sound decisions and manage the responsibilities associated with guardianship.

 

• A background test is required that ensures the proposed guardian has no history of abuse, neglect, or exploitation of vulnerable persons, including through criminal records and past legal involvement.

 

• The court usually prefers direct family members to be appointed guardians of the child due to their personal connection and understanding of the ward’s needs. However, non-relatives may also be appointed if they demonstrate significant concern for the child’s well-being and can act in the child’s best interest.

 

A guardian is subjected to speculation regarding potential conflicts of interest that may impair their ability to act in accordance with the ward’s needs.

 

Kansas family courts are ultimately responsible for making the final decision to appoint a guardian. They consider the candidate’s suitability based on the minor’s specific needs and circumstances.

 

Specific training or orientation may be required for guardians to ensure that they are well prepared for their duties and to understand their legal and ethical considerations better. 

What are the Types of Guardianships?

Kansas recognizes many types of guardianship. It is important to speak with an elder law attorney at Barnds Law LLC to ensure the best possible outcome for your case.

 

• Standby Guardianship: This option allows a ward to have a person appointed to take over care in the event of the current guardian’s death, illness, resignation, or other unforeseen circumstances. 

 

• Co-guardianship: There are times when an appointed guardian is someone other than the appointed conservator. When two people are appointed to oversee an individual’s care, they work together to make decisions and provide care for the ward’s health, well-being, and financial security. 

 

• Temporary guardianship: A temporary guardianship is appointed when there is an imminent threat to the ward’s health or safety.

How is a Temporary Guardian Appointed?

A temporary guardian may be requested at the same time or after the petition for guardian. When this occurs, an ex parte hearing is conducted, and a guardian may be appointed pending the regular hearing. A temporary placement order can be made at the temporary guardianship hearing

A petition for temporary guardianship may be necessary if it appears there is imminent danger to the ward’s physical health or safety and that they may be seriously injured unless action is taken. The proposed ward or interested party may petition the court currently conducting the proceedings for guardianship for the emergency appointment of a guardian.

A temporary guardianship may not have the extensive duties of the long-term guardian but will likely be limited to the ability to make arrangements for the care of the ward and to protect their safety and comfort.

A temporary guardianship cannot last longer than 30 days but may be periodically extended by the court until the hearing on long-term guardianship, at which point it will automatically expire.

Do I Need an Attorney?

Guardianships are legal arrangements meant to protect society’s most vulnerable members. They are not to be taken lightly or left to inexperienced discretion. If you have questions about guardianships, call Barnds Law LLC at 913-514-0909 or fill out a contact form to schedule your consultation.

What Are Diversion Programs?

Diversion programs offer alternative sentencing paths aimed at steering first-time offenders away from the conventional criminal justice system. Rather than undergoing a trial and potentially serving jail time, eligible participants can complete a program centered on rehabilitation and education. These programs are particularly advantageous for drug-related offenses, often incorporating elements like drug education classes, community service, and routine drug testing.

In Kansas, the availability of diversion programs is generally determined by the prosecutor’s office. This means not all offenders qualify, and the program’s terms can vary widely based on the case’s specific details. Factors such as the offense’s seriousness, the offender’s criminal history, and their readiness to meet the program’s conditions all influence eligibility.

Diversion programs typically involve mandatory drug education classes, community service, and regular drug testing. These components aim to tackle the root causes of criminal behavior, such as substance abuse, and equip offenders with the tools to prevent future infractions. Successful completion of these programs can lead to charge dismissal, enabling individuals to avoid a criminal record that might hinder future employment, housing, and educational opportunities.

These programs represent an opportunity for individuals to make amends without the long-term consequences of a criminal conviction. In many cases, participants receive education on the underlying causes of their behavior, such as addiction or poor decision-making, which empowers them to make positive changes in their lives. The programs often require a personal commitment to self-improvement, fostering accountability and reducing the likelihood of reoffending. Beyond avoiding a criminal record, successful completion can instill valuable life skills, benefiting participants and the community as a whole.

How Do Diversion Programs Operate?

Once deemed eligible for a diversion program, individuals must agree to conditions set by the prosecutor. These often include attending drug education classes, performing community service, and undergoing regular drug testing. The objective is to address the underlying issues that led to the offense and prevent future criminal behavior. For example, drug education classes aim to provide a deeper understanding of substance abuse and its impacts. Similarly, community service fosters a sense of responsibility and community connection.

Participants usually pay a fee to enroll, which varies based on jurisdiction and case specifics. They may also need to attend regular meetings with a probation officer or counselor to ensure compliance. Successful program completion results in charge dismissal, allowing individuals to move forward without a criminal record.

Benefits of Diversion Programs

Diversion programs offer numerous benefits to both offenders and the community. For offenders, the primary advantage is avoiding a criminal conviction. A criminal record can severely impact employment, housing, and educational opportunities. Completing a diversion program helps individuals avoid these negative outcomes and work toward a brighter future.

From a community perspective, diversion programs reduce the burden on the criminal justice system by decreasing trial cases. This enables courts to focus on more serious offenses and alleviates jail and prison overcrowding. Additionally, by addressing the root causes of criminal behavior, diversion programs can lower recidivism rates, leading to safer communities.

In addition to avoiding a criminal record, participants in diversion programs often experience personal growth. Drug education classes can illuminate the risks and impacts of substance abuse, while community service connects offenders with meaningful opportunities to give back. These programs not only support rehabilitation but also foster stronger, safer communities. For families, diversion programs reduce the emotional and financial strain that a criminal conviction can impose, creating a more supportive environment for recovery and change.

Who is Eligible for a Diversion Program?

Eligibility for a diversion program in Kansas depends on several factors, including the offense’s nature, the offender’s criminal history, and their willingness to comply with program requirements. Generally, first-time offenders charged with non-violent drug offenses are the most likely candidates for diversion.

Factors taken into consideration may also include the drug’s type and quantity, any aggravating circumstances, and the offender’s behavior post-arrest. A knowledgeable attorney can assess your situation and determine if a diversion program is viable. An attorney can also negotiate program terms and ensure your rights are protected throughout the process.

What Are the Consequences of Failing to Complete the Program?

Failing to complete a diversion program can have serious consequences. If an offender doesn’t comply with program terms, the prosecutor may reinstate the original charges, potentially leading to a trial and conviction. This highlights the importance of taking the program seriously and adhering to all requirements.

Common reasons for failing a diversion program include missing scheduled meetings, failing drug tests, or not completing community service hours. Communicate with program administrators and seek assistance if you’re struggling to meet program demands. In some cases, the court may be willing to work with you to address issues and help you get back on track.

Failure to meet the requirements of a diversion program not only reinstates original charges but may also lead to additional legal consequences, such as probation violations or heightened scrutiny for future offenses. Legal representation can be particularly helpful in these instances, as an attorney can negotiate adjustments to program terms or advocate for second chances where appropriate.

How Can an Attorney Help?

An experienced attorney can be invaluable in understanding and participating in a diversion program. They can provide guidance on eligibility, negotiate favorable terms, and ensure your rights are protected throughout the process.

If you’re a first-time drug offender in Kansas considering a diversion program, call Barnds Law LLC today at 913-514-0909.