HOUSE BILL No. 2626

      An Act concerning domestic relations; relating to marital property; orders during a divorce;
      child custody; amending K.S.A. 23-201 and 60-1607 and K.S.A. 1997 Supp. 60-1610 and
      repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

    Section 1. K.S.A. 23-201 is hereby amended to read as follows: 23-
201. (a) The property, real and personal, which any person in this state
may own at the time of the person's marriage, and the rents, issues, profits
or proceeds thereof, and any real, personal or mixed property which shall
come to a person by descent, devise or bequest, and the rents, issues,
profits or proceeds thereof, or by gift from any person except the person's
spouse, shall remain the person's sole and separate property, notwith-
standing the marriage, and not be subject to the disposal of the person's
spouse or liable for the spouse's debts.

    (b) All property owned by married persons, including the present
value of any vested or unvested military retirement pay, or, for divorce
or separate maintenance actions commenced on or after July 1, 1998,
professional goodwill to the extent that it is marketable for that particular
professional, whether described in subsection (a) or acquired by either
spouse after marriage, and whether held individually or by the spouses in
some form of co-ownership, such as joint tenancy or tenancy in common,
shall become marital property at the time of commencement by one
spouse against the other of an action in which a final decree is entered
for divorce, separate maintenance, or annulment. Each spouse has a com-
mon ownership in marital property which vests at the time of commence-
ment of such action, the extent of the vested interest to be determined
and finalized by the court, pursuant to K.S.A. 60-1610 and amendments
thereto.

    Sec. 2. K.S.A. 60-1607 is hereby amended to read as follows: 60-
1607. (a) Permissible orders. After a petition for divorce, annulment or
separate maintenance has been filed, and during the pendency of the
action prior to final judgment the judge assigned to hear the action may,
without requiring bond, make and enforce by attachment, orders which:

    (1) Jointly restrain the parties with regard to disposition of the prop-
erty of the parties and provide for the use, occupancy, management and
control of that property;

    (2) restrain the parties from molesting or interfering with the privacy
or rights of each other;

    (3) provide for the custody of the minor children and the support, if
necessary, of either party and of the minor children during the pendency
of the action;

    (4) make provisions, if necessary, for the expenses of the suit, includ-
ing reasonable attorney's fees, that will insure to either party efficient
preparation for the trial of the case; or

    (5) require an investigation by court service officers into any issue
arising in the action.

    (b) Ex parte orders. Orders authorized by subsections (a)(1), (2) and
(3) may be entered after ex parte hearing upon compliance with rules of
the supreme court, but no ex parte order shall have the effect of changing
the custody of a minor child from the parent who has had the sole de
facto custody of the child to the other parent unless there is sworn tes-
timony to support a showing of extraordinary circumstances. If an inter-
locutory order is issued ex parte, the court shall hear a motion to vacate
or modify the order within 10 15 days of the date that a party requests a
hearing whether to vacate or modify the order. In the absence, disability,
or disqualification of the judge assigned to hear the action, any other
judge of the district court may make any order authorized by this section,
including vacation or modification or any order issued by the judge as-
signed to hear the action.

    (c) Support orders. (1) An order of support obtained pursuant to this
section may be enforced by an order of garnishment as provided in this
section.

    (2) No order of garnishment shall be issued under this section unless:
(A) Ten or more days have elapsed since the order of support was served
upon the party required to pay the support, and (B) the order of support
contained a notice that the order of support may be enforced by garnish-
ment and that the party has a right to request an opportunity for a hearing
to contest the issuance of an order of garnishment, if the hearing is re-
quested by motion filed within five days after service of the order of
support upon the party. If a hearing is requested, the court shall hold the
hearing within five days after the motion requesting the hearing is filed
with the court or at a later date agreed to by the parties.

    (3) No bond shall be required for the issuance of an order of gar-
nishment pursuant to this section. Except as provided in this section,
garnishments authorized by this section shall be subject to the procedures
and limitations applicable to other orders of garnishment authorized by
law.

    (4) A party desiring to have the order of garnishment issued shall file
an affidavit with the clerk of the district court stating that:

    (A) The order of support contained the notice required by this sub-
section;

    (B) ten or more days have elapsed since the order of support was
served upon the party required to pay the support; and

    (C) either no hearing was requested on the issuance of an order of
garnishment within the five days after service of the order of support
upon the party required to pay the same or a hearing was requested and
held and the court did not prohibit the issuance of an order of garnish-
ment.

    (d) Service of process. Service of process served under subsection
(a)(1) and (2) shall be by personal service and not by certified mail return
receipt requested.

    Sec. 3. K.S.A. 1997 Supp. 60-1610 is hereby amended to read as
follows: 60-1610. A decree in an action under this article may include
orders on the following matters:

    (a) Minor children. (1) Child support and education. The court shall
make provisions for the support and education of the minor children. The
court may modify or change any prior order, including any order issued
in a title IV-D case, within three years of the date of the original order
or a modification order, when a material change in circumstances is
shown, irrespective of the present domicile of the child or the parents. If
more than three years has passed since the date of the original order or
modification order, a material change in circumstance need not be shown.
The court may make a modification of child support retroactive to a date
at least one month after the date that the motion to modify was filed with
the court. Any increase in support ordered effective prior to the date the
court's judgment is filed shall not become a lien on real property pursuant
to K.S.A. 60-2202 and amendments thereto. Regardless of the type of
custodial arrangement ordered by the court, the court may order the child
support and education expenses to be paid by either or both parents for
any child less than 18 years of age, at which age the support shall ter-
minate unless: (A) The parent or parents agree, by written agreement
approved by the court, to pay support beyond the time the child reaches
18 years of age; (B) the child reaches 18 years of age before completing
the child's high school education in which case the support shall not ter-
minate automatically, unless otherwise ordered by the court, until June
30 of the school year during which the child became 18 years of age if
the child is still attending high school; or (C) the child is still a bona fide
high school student after June 30 of the school year during which the
child became 18 years of age, in which case the court, on motion, may
order support to continue through the school year during which the child
becomes 19 years of age so long as the child is a bona fide high school
student and the parents jointly participated or knowingly acquiesced in
the decision which delayed the child's completion of high school. The
court, in extending support pursuant to subsection (a)(1)(C), may impose
such conditions as are appropriate and shall set the child support utilizing
the guideline table category for 16-year through 18-year old children.
Provision for payment of support and educational expenses of a child after
reaching 18 years of age if still attending high school shall apply to any
child subject to the jurisdiction of the court, including those whose sup-
port was ordered prior to July 1, 1992. If an agreement approved by the
court prior to July 1, 1988, provides for termination of support before the
date provided by subsection (a)(1)(B), the court may review and modify
such agreement, and any order based on such agreement, to extend the
date for termination of support to the date provided by subsection
(a)(1)(B). If an agreement approved by the court prior to July 1, 1992,
provides for termination of support before the date provided by subsec-
tion (a)(1)(C), the court may review and modify such agreement, and any
order based on such agreement, to extend the date for termination of
support to the date provided by subsection (a)(1)(C). For purposes of this
section, ``bona fide high school student'' means a student who is enrolled
in full accordance with the policy of the accredited high school in which
the student is pursuing a high school diploma or a graduate equivalency
diploma (GED). In determining the amount to be paid for child support,
the court shall consider all relevant factors, without regard to marital
misconduct, including the financial resources and needs of both parents,
the financial resources and needs of the child and the physical and emo-
tional condition of the child. Until a child reaches 18 years of age, the
court may set apart any portion of property of either the husband or wife,
or both, that seems necessary and proper for the support of the child.
Every order requiring payment of child support under this section shall
require that the support be paid through the clerk of the district court or
the court trustee except for good cause shown.

    (2) Child custody and residency. (A) Changes in custody. Subject to
the provisions of the uniform child custody jurisdiction act (K.S.A. 38-
1301 et seq., and amendments thereto), the court may change or modify
any prior order of custody when a material change of circumstances is
shown, but no ex parte order shall have the effect of changing the custody
of a minor child from the parent who has had the sole de facto custody
of the child to the other parent unless there is sworn testimony to support
a showing of extraordinary circumstances. If an interlocutory order is
issued ex parte, the court shall hear a motion to vacate or modify the
order within 15 days of the date that a party requests a hearing whether
to vacate or modify the order.

    (B) Examination of parties. The court may order physical or mental
examinations of the parties if requested pursuant to K.S.A. 60-235 and
amendments thereto.

    (3) Child custody or residency criteria. The court shall determine
custody or residency of a child in accordance with the best interests of
the child.

    (A) If the parties have a written agreement concerning the custody
or residency of their minor child, it is presumed that the agreement is in
the best interests of the child. This presumption may be overcome and
the court may make a different order if the court makes specific findings
of fact stating why the agreement is not in the best interests of the child.

    (B) In determining the issue of custody or residency of a child, the
court shall consider all relevant factors, including but not limited to:

    (i) The length of time that the child has been under the actual care
and control of any person other than a parent and the circumstances
relating thereto;

    (ii) the desires of the child's parents as to custody or residency;

    (iii) the desires of the child as to the child's custody or residency;

    (iv) the interaction and interrelationship of the child with parents,
siblings and any other person who may significantly affect the child's best
interests;

    (v) the child's adjustment to the child's home, school and community;

    (vi) the willingness and ability of each parent to respect and appre-
ciate the bond between the child and the other parent and to allow for a
continuing relationship between the child and the other parent; and

    (vii) evidence of spousal abuse.

    Neither parent shall be considered to have a vested interest in the
custody or residency of any child as against the other parent, regardless
of the age of the child, and there shall be no presumption that it is in the
best interests of any infant or young child to give custody or residency to
the mother.

    (4) Types of custodial arrangements. Subject to the provisions of this
article, the court may make any order relating to custodial arrangements
which is in the best interests of the child. The order shall include, but
not be limited to, one of the following, in the order of preference:

    (A) Joint custody. The court may place the custody of a child with
both parties on a shared or joint-custody basis. In that event, the parties
shall have equal rights to make decisions in the best interests of the child
under their custody. When a child is placed in the joint custody of the
child's parents, the court may further determine that the residency of the
child shall be divided either in an equal manner with regard to time of
residency or on the basis of a primary residency arrangement for the child.
The court, in its discretion, may require the parents to submit a plan for
implementation of a joint custody order upon finding that both parents
are suitable parents or the parents, acting individually or in concert, may
submit a custody implementation plan to the court prior to issuance of a
custody decree. If the court does not order joint custody, it shall include
in the record the specific findings of fact upon which the order for custody
other than joint custody is based.

    (B) Sole custody. The court may place the custody of a child with one
parent, and the other parent shall be the noncustodial parent. The cus-
todial parent shall have the right to make decisions in the best interests
of the child, subject to the visitation rights of the noncustodial parent.

    (C) Divided custody. In an exceptional case, the court may divide the
custody of two or more children between the parties.

    (D) Nonparental custody. If during the proceedings the court deter-
mines that there is probable cause to believe that: (i) The child is a child
in need of care as defined by subsections (a)(1), (2) or (3) of K.S.A. 38-
1502 and amendments thereto; (ii) neither parent is fit to have custody;
or (iii) the child is currently residing with such child's grandparent, grand-
parents, aunt or uncle and such relative has had actual physical custody
of such child for a significant length of time, the court may award tem-
porary custody of the child to such relative, another person or agency if
the court finds the award of custody to such relative, another person or
agency is in the best interests of the child. In making such a custody
order, the court shall give preference, to the extent that the court finds
it is in the best interests of the child, first to awarding such custody to a
relative of the child by blood, marriage or adoption and second to award-
ing such custody to another person with whom the child has close emo-
tional ties. The court may make temporary orders for care, support, ed-
ucation and visitation that it considers appropriate. Temporary custody
orders are to be entered in lieu of temporary orders provided for in K.S.A.
38-1542 and 38-1543, and amendments thereto, and shall remain in effect
until there is a final determination under the Kansas code for care of
children. An award of temporary custody under this paragraph shall not
terminate parental rights nor give the court the authority to consent to
the adoption of the child. When the court enters orders awarding tem-
porary custody of the child to an agency or a person other than the parent
but not a relative as described in subpart (iii), the court shall refer a
transcript of the proceedings to the county or district attorney. The county
or district attorney shall file a petition as provided in K.S.A. 38-1531 and
amendments thereto and may request termination of parental rights pur-
suant to K.S.A. 38-1581 and amendments thereto. The costs of the pro-
ceedings shall be paid from the general fund of the county. When a final
determination is made that the child is not a child in need of care, the
county or district attorney shall notify the court in writing and the court,
after a hearing, shall enter appropriate custody orders pursuant to this
section. If the same judge presides over both proceedings, the notice is
not required. Any disposition pursuant to the Kansas code for care of
children shall be binding and shall supersede any order under this section.
When the court enters orders awarding temporary custody of the child
to a relative as described in subpart (iii), the court shall annually review
the temporary custody to evaluate whether such custody is still in the best
interests of the child. If the court finds such custody is in the best interests
of the child, such custody shall continue. If the court finds such custody
is not in the best interests of the child, the court shall determine the
custody pursuant to this section.

    (b) Financial matters. (1) Division of property. The decree shall di-
vide the real and personal property of the parties, including any retire-
ment and pension plans, whether owned by either spouse prior to mar-
riage, acquired by either spouse in the spouse's own right after marriage
or acquired by the spouses' joint efforts, by: (A) a division of the property
in kind; (B) awarding the property or part of the property to one of the
spouses and requiring the other to pay a just and proper sum; or (C)
ordering a sale of the property, under conditions prescribed by the court,
and dividing the proceeds of the sale. Upon request, the trial court shall
set a valuation date to be used for all assets at trial, which may be the
date of separation, filing or trial as the facts and circumstances of the case
may dictate. The trial court may consider evidence regarding changes in
value of various assets before and after the valuation date in making the
division of property. In dividing defined-contribution types of retirement
and pension plans, the court shall allocate profits and losses on the non-
participant's portion until date of distribution to that nonparticipant. In
making the division of property the court shall consider the age of the
parties; the duration of the marriage; the property owned by the parties;
their present and future earning capacities; the time, source and manner
of acquisition of property; family ties and obligations; the allowance of
maintenance or lack thereof; dissipation of assets; the tax consequences
of the property division upon the respective economic circumstances of
the parties; and such other factors as the court considers necessary to
make a just and reasonable division of property. The decree shall provide
for any changes in beneficiary designation on: (A) Any insurance or an-
nuity policy that is owned by the parties, or in the case of group life
insurance policies, under which either of the parties is a covered person;
(B) any trust instrument under which one party is the grantor or holds a
power of appointment over part or all of the trust assets, that may be
exercised in favor of either party; or (C) any transfer on death or payable
on death account under which one or both of the parties are owners or
beneficiaries. Nothing in this section shall relieve the parties of the ob-
ligation to effectuate any change in beneficiary designation by the filing
of such change with the insurer or issuer in accordance with the terms
of such policy.

    (2) Maintenance. The decree may award to either party an allowance
for future support denominated as maintenance, in an amount the court
finds to be fair, just and equitable under all of the circumstances. The
decree may make the future payments modifiable or terminable under
circumstances prescribed in the decree. The court may make a modifi-
cation of maintenance retroactive to a date at least one month after the
date that the motion to modify was filed with the court. In any event, the
court may not award maintenance for a period of time in excess of 121
months. If the original court decree reserves the power of the court to
hear subsequent motions for reinstatement of maintenance and such a
motion is filed prior to the expiration of the stated period of time for
maintenance payments, the court shall have jurisdiction to hear a motion
by the recipient of the maintenance to reinstate the maintenance pay-
ments. Upon motion and hearing, the court may reinstate the payments
in whole or in part for a period of time, conditioned upon any modifying
or terminating circumstances prescribed by the court, but the reinstate-
ment shall be limited to a period of time not exceeding 121 months. The
recipient may file subsequent motions for reinstatement of maintenance
prior to the expiration of subsequent periods of time for maintenance
payments to be made, but no single period of reinstatement ordered by
the court may exceed 121 months. Maintenance may be in a lump sum,
in periodic payments, on a percentage of earnings or on any other basis.
At any time, on a hearing with reasonable notice to the party affected,
the court may modify the amounts or other conditions for the payment
of any portion of the maintenance originally awarded that has not already
become due, but no modification shall be made without the consent of
the party liable for the maintenance, if it has the effect of increasing or
accelerating the liability for the unpaid maintenance beyond what was
prescribed in the original decree. Every order requiring payment of main-
tenance under this section shall require that the maintenance be paid
through the clerk of the district court or the court trustee except for good
cause shown.

    (3) Separation agreement. If the parties have entered into a separa-
tion agreement which the court finds to be valid, just and equitable, the
agreement shall be incorporated in the decree. The provisions of the
agreement on all matters settled by it shall be confirmed in the decree
except that any provisions for the custody, support or education of the
minor children shall be subject to the control of the court in accordance
with all other provisions of this article. Matters settled by an agreement
incorporated in the decree, other than matters pertaining to the custody,
support or education of the minor children, shall not be subject to sub-
sequent modification by the court except: (A) As prescribed by the agree-
ment or (B) as subsequently consented to by the parties.

    (4) Costs and fees. Costs and attorney fees may be awarded to either
party as justice and equity require. The court may order that the amount
be paid directly to the attorney, who may enforce the order in the attor-
ney's name in the same case.

    (c) Miscellaneous matters. (1) Restoration of name. Upon the request
of a spouse, the court shall order the restoration of that spouse's maiden
or former name.

    (2) Effective date as to remarriage. Any marriage contracted by a
party, within or outside this state, with any other person before a judg-
ment of divorce becomes final shall be voidable until the decree of divorce
becomes final. An agreement which waives the right of appeal from the
granting of the divorce and which is incorporated into the decree or
signed by the parties and filed in the case shall be effective to shorten
the period of time during which the remarriage is voidable.

    Sec. 4. K.S.A. 23-201 and 60-1607 and K.S.A. 1997 Supp. 60-1610
are hereby repealed.

    Sec. 5. This act shall take effect and be in force from and after its
publication in the statute book.

I hereby certify that the above Bill originated in the
House, and passed that body

__________________________________

House adopted
Conference Committee Report __________________________

__________________________________

Speaker of the House.

__________________________________

Chief Clerk of the House.

Passed the Senate
as amended __________________________

Senate adopted
Conference Committe Report __________________________

__________________________________

President of the Senate

__________________________________

Secretary of the Senate.

Approved__________________________

__________________________________

Governor.