Session of 2000
HOUSE BILL No. 2773
By Committee on Judiciary
1-31
9 AN ACT
concerning civil procedure; relating to divorce; concerning the
10 division of property;
amending K.S.A. 1999 Supp. 60-1610 and re-
11 pealing the existing
section.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section
1. K.S.A. 1999 Supp. 60-1610 is hereby amended to read as
15 follows: 60-1610. A decree in an action
under this article may include
16 orders on the following matters:
17 (a) Minor
children. (1) Child support and education. The court
shall
18 make provisions for the support and
education of the minor children. The
19 court may modify or change any prior order,
including any order issued
20 in a title IV-D case, within three years of
the date of the original order
21 or a modification order, when a material
change in circumstances is
22 shown, irrespective of the present domicile
of the child or the parents. If
23 more than three years has passed since the
date of the original order or
24 modification order, a material change in
circumstance need not be shown.
25 The court may make a modification of child
support retroactive to a date
26 at least one month after the date that the
motion to modify was filed with
27 the court. Any increase in support ordered
effective prior to the date the
28 court's judgment is filed shall not become
a lien on real property pursuant
29 to K.S.A. 60-2202 and amendments thereto.
Regardless of the type of
30 custodial arrangement ordered by the court,
the court may order the child
31 support and education expenses to be paid
by either or both parents for
32 any child less than 18 years of age, at
which age the support shall ter-
33 minate unless: (A) The parent or parents
agree, by written agreement
34 approved by the court, to pay support
beyond the time the child reaches
35 18 years of age; (B) the child reaches 18
years of age before completing
36 the child's high school education in which
case the support shall not ter-
37 minate automatically, unless otherwise
ordered by the court, until June
38 30 of the school year during which the
child became 18 years of age if
39 the child is still attending high school;
or (C) the child is still a bona fide
40 high school student after June 30 of the
school year during which the
41 child became 18 years of age, in which case
the court, on motion, may
42 order support to continue through the
school year during which the child
43 becomes 19 years of age so long as the
child is a bona fide high school
2
1 student and the parents jointly
participated or knowingly acquiesced in
2 the decision which delayed the
child's completion of high school. The
3 court, in extending support pursuant
to subsection (a)(1)(C), may impose
4 such conditions as are appropriate
and shall set the child support utilizing
5 the guideline table category for
16-year through 18-year old children.
6 Provision for payment of support and
educational expenses of a child after
7 reaching 18 years of age if still
attending high school shall apply to any
8 child subject to the jurisdiction of
the court, including those whose sup-
9 port was ordered prior to July 1,
1992. If an agreement approved by the
10 court prior to July 1, 1988, provides for
termination of support before the
11 date provided by subsection (a)(1)(B), the
court may review and modify
12 such agreement, and any order based on such
agreement, to extend the
13 date for termination of support to the date
provided by subsection
14 (a)(1)(B). If an agreement approved by the
court prior to July 1, 1992,
15 provides for termination of support before
the date provided by subsec-
16 tion (a)(1)(C), the court may review and
modify such agreement, and any
17 order based on such agreement, to extend
the date for termination of
18 support to the date provided by subsection
(a)(1)(C). For purposes of this
19 section, "bona fide high school student"
means a student who is enrolled
20 in full accordance with the policy of the
accredited high school in which
21 the student is pursuing a high school
diploma or a graduate equivalency
22 diploma (GED). In determining the amount to
be paid for child support,
23 the court shall consider all relevant
factors, without regard to marital
24 misconduct, including the financial
resources and needs of both parents,
25 the financial resources and needs of the
child and the physical and emo-
26 tional condition of the child. Until a
child reaches 18 years of age, the
27 court may set apart any portion of property
of either the husband or wife,
28 or both, that seems necessary and proper
for the support of the child.
29 Every order requiring payment of child
support under this section shall
30 require that the support be paid through
the clerk of the district court or
31 the court trustee except for good cause
shown.
32 (2) Child
custody and residency. (A) Changes in custody. Subject
to
33 the provisions of the uniform child custody
jurisdiction act (K.S.A. 38-
34 1301 et seq., and amendments
thereto), the court may change or modify
35 any prior order of custody when a material
change of circumstances is
36 shown, but no ex parte order shall have the
effect of changing the custody
37 of a minor child from the parent who has
had the sole de facto custody
38 of the child to the other parent unless
there is sworn testimony to support
39 a showing of extraordinary circumstances.
If an interlocutory order is
40 issued ex parte, the court shall hear a
motion to vacate or modify the
41 order within 15 days of the date that a
party requests a hearing whether
42 to vacate or modify the order.
43
(B) Examination of parties. The court may order
physical or mental
3
1 examinations of the parties if
requested pursuant to K.S.A. 60-235 and
2 amendments thereto.
3
(3) Child custody or residency criteria. The court
shall determine
4 custody or residency of a child in
accordance with the best interests of
5 the child.
6 (A) If the
parties have a written agreement concerning the custody
7 or residency of their minor child, it
is presumed that the agreement is in
8 the best interests of the child. This
presumption may be overcome and
9 the court may make a different order
if the court makes specific findings
10 of fact stating why the agreement is not in
the best interests of the child.
11 (B) In
determining the issue of custody or residency of a child, the
12 court shall consider all relevant factors,
including but not limited to:
13 (i) The length of
time that the child has been under the actual care
14 and control of any person other than a
parent and the circumstances
15 relating thereto;
16 (ii) the desires
of the child's parents as to custody or residency;
17 (iii) the desires
of the child as to the child's custody or residency;
18 (iv) the
interaction and interrelationship of the child with parents,
19 siblings and any other person who may
significantly affect the child's best
20 interests;
21 (v) the child's
adjustment to the child's home, school and community;
22 (vi) the
willingness and ability of each parent to respect and appre-
23 ciate the bond between the child and the
other parent and to allow for a
24 continuing relationship between the child
and the other parent; and
25 (vii) evidence of
spousal abuse.
26 Neither parent shall
be considered to have a vested interest in the
27 custody or residency of any child as
against the other parent, regardless
28 of the age of the child, and there shall be
no presumption that it is in the
29 best interests of any infant or young child
to give custody or residency to
30 the mother.
31 (4) Types of
custodial arrangements. Subject to the provisions of this
32 article, the court may make any order
relating to custodial arrangements
33 which is in the best interests of the
child. The order shall include, but
34 not be limited to, one of the following, in
the order of preference:
35 (A) Joint
custody. The court may place the custody of a child with
36 both parties on a shared or joint-custody
basis. In that event, the parties
37 shall have equal rights to make decisions
in the best interests of the child
38 under their custody. When a child is placed
in the joint custody of the
39 child's parents, the court may further
determine that the residency of the
40 child shall be divided either in an equal
manner with regard to time of
41 residency or on the basis of a primary
residency arrangement for the child.
42 The court, in its discretion, may require
the parents to submit a plan for
43 implementation of a joint custody order
upon finding that both parents
4
1 are suitable parents or the parents,
acting individually or in concert, may
2 submit a custody implementation plan
to the court prior to issuance of a
3 custody decree. If the court does not
order joint custody, it shall include
4 in the record the specific findings
of fact upon which the order for custody
5 other than joint custody is
based.
6 (B) Sole
custody. The court may place the custody of a child with
one
7 parent, and the other parent shall be
the noncustodial parent. The cus-
8 todial parent shall have the right to
make decisions in the best interests
9 of the child, subject to the
visitation rights of the noncustodial parent.
10 (C) Divided
custody. In an exceptional case, the court may divide the
11 custody of two or more children between the
parties.
12
(D) Nonparental custody. If during the proceedings the
court deter-
13 mines that there is probable cause to
believe that: (i) The child is a child
14 in need of care as defined by subsections
(a)(1), (2) or (3) of K.S.A. 38-
15 1502 and amendments thereto; (ii) neither
parent is fit to have custody;
16 or (iii) the child is currently residing
with such child's grandparent, grand-
17 parents, aunt or uncle and such relative
has had actual physical custody
18 of such child for a significant length of
time, the court may award tem-
19 porary custody of the child to such
relative, another person or agency if
20 the court finds the award of custody to
such relative, another person or
21 agency is in the best interests of the
child. In making such a custody
22 order, the court shall give preference, to
the extent that the court finds
23 it is in the best interests of the child,
first to awarding such custody to a
24 relative of the child by blood, marriage or
adoption and second to award-
25 ing such custody to another person with
whom the child has close emo-
26 tional ties. The court may make temporary
orders for care, support, ed-
27 ucation and visitation that it considers
appropriate. Temporary custody
28 orders are to be entered in lieu of
temporary orders provided for in K.S.A.
29 38-1542 and 38-1543, and amendments
thereto, and shall remain in effect
30 until there is a final determination under
the Kansas code for care of
31 children. An award of temporary custody
under this paragraph shall not
32 terminate parental rights nor give the
court the authority to consent to
33 the adoption of the child. When the court
enters orders awarding tem-
34 porary custody of the child to an agency or
a person other than the parent
35 but not a relative as described in subpart
(iii), the court shall refer a
36 transcript of the proceedings to the county
or district attorney. The county
37 or district attorney shall file a petition
as provided in K.S.A. 38-1531 and
38 amendments thereto and may request
termination of parental rights pur-
39 suant to K.S.A. 38-1581 and amendments
thereto. The costs of the pro-
40 ceedings shall be paid from the general
fund of the county. When a final
41 determination is made that the child is not
a child in need of care, the
42 county or district attorney shall notify
the court in writing and the court,
43 after a hearing, shall enter appropriate
custody orders pursuant to this
5
1 section. If the same judge presides
over both proceedings, the notice is
2 not required. Any disposition
pursuant to the Kansas code for care of
3 children shall be binding and shall
supersede any order under this section.
4 When the court enters orders awarding
temporary custody of the child
5 to a relative as described in subpart
(iii), the court shall annually review
6 the temporary custody to evaluate
whether such custody is still in the best
7 interests of the child. If the court
finds such custody is in the best interests
8 of the child, such custody shall
continue. If the court finds such custody
9 is not in the best interests of the
child, the court shall determine the
10 custody pursuant to this section.
11 (b) Financial
matters. (1) Division of property. The decree shall
di-
12 vide the real and personal property of the
parties, including any retire-
13 ment and pension plans, whether owned by
either spouse prior to mar-
14 riage, acquired by either spouse in the
spouse's own right after marriage
15 or acquired by the spouses' joint efforts,
by: (A) a division of the property
16 in kind; (B) awarding the property or part
of the property to one of the
17 spouses and requiring the other to pay a
just and proper sum; or (C)
18 ordering a sale of the property, under
conditions prescribed by the court,
19 and dividing the proceeds of the sale. Upon
request, the trial court shall
20 set a valuation date to be used for all
assets at trial, which may be the
21 date of separation, filing or trial as the
facts and circumstances of the case
22 may dictate. The trial court may consider
evidence regarding changes in
23 value of various assets before and after
the valuation date in making the
24 division of property. In dividing
defined-contribution types of retirement
25 and pension plans, the court shall allocate
profits and losses on the non-
26 participant's portion until date of
distribution to that nonparticipant. In
27 making the division of property the court
shall consider the age of the
28 parties; the duration of the marriage; the
property owned by the parties;
29 their present and future earning
capacities; the time, source and manner
30 of acquisition of property; family ties and
obligations; the allowance of
31 maintenance or lack thereof; dissipation of
assets; the tax consequences
32 of the property division upon the
respective economic circumstances of
33 the parties; for a decree granted
pursuant to subsection (a)(2) of K.S.A.
34 60-1601, and amendments thereto, the
failure to perform a material mar-
35 ital duty or obligation; and such
other factors as the court considers nec-
36 essary to make a just and reasonable
division of property. The decree
37 shall provide for any changes in
beneficiary designation on: (A) Any in-
38 surance or annuity policy that is owned by
the parties, or in the case of
39 group life insurance policies, under which
either of the parties is a covered
40 person; (B) any trust instrument under
which one party is the grantor or
41 holds a power of appointment over part or
all of the trust assets, that may
42 be exercised in favor of either party; or
(C) any transfer on death or
43 payable on death account under which one or
both of the parties are
6
1 owners or beneficiaries. Nothing in
this section shall relieve the parties
2 of the obligation to effectuate any
change in beneficiary designation by
3 the filing of such change with the
insurer or issuer in accordance with
4 the terms of such policy.
5
(2) Maintenance. The decree may award to either party
an allowance
6 for future support denominated as
maintenance, in an amount the court
7 finds to be fair, just and equitable
under all of the circumstances. The
8 decree may make the future payments
modifiable or terminable under
9 circumstances prescribed in the
decree. The court may make a modifi-
10 cation of maintenance retroactive to a date
at least one month after the
11 date that the motion to modify was filed
with the court. In any event, the
12 court may not award maintenance for a
period of time in excess of 121
13 months. If the original court decree
reserves the power of the court to
14 hear subsequent motions for reinstatement
of maintenance and such a
15 motion is filed prior to the expiration of
the stated period of time for
16 maintenance payments, the court shall have
jurisdiction to hear a motion
17 by the recipient of the maintenance to
reinstate the maintenance pay-
18 ments. Upon motion and hearing, the court
may reinstate the payments
19 in whole or in part for a period of time,
conditioned upon any modifying
20 or terminating circumstances prescribed by
the court, but the reinstate-
21 ment shall be limited to a period of time
not exceeding 121 months. The
22 recipient may file subsequent motions for
reinstatement of maintenance
23 prior to the expiration of subsequent
periods of time for maintenance
24 payments to be made, but no single period
of reinstatement ordered by
25 the court may exceed 121 months.
Maintenance may be in a lump sum,
26 in periodic payments, on a percentage of
earnings or on any other basis.
27 At any time, on a hearing with reasonable
notice to the party affected,
28 the court may modify the amounts or other
conditions for the payment
29 of any portion of the maintenance
originally awarded that has not already
30 become due, but no modification shall be
made without the consent of
31 the party liable for the maintenance, if it
has the effect of increasing or
32 accelerating the liability for the unpaid
maintenance beyond what was
33 prescribed in the original decree. Every
order requiring payment of main-
34 tenance under this section shall require
that the maintenance be paid
35 through the clerk of the district court or
the court trustee except for good
36 cause shown.
37 (3) Separation
agreement. If the parties have entered into a separa-
38 tion agreement which the court finds to be
valid, just and equitable, the
39 agreement shall be incorporated in the
decree. The provisions of the
40 agreement on all matters settled by it
shall be confirmed in the decree
41 except that any provisions for the custody,
support or education of the
42 minor children shall be subject to the
control of the court in accordance
43 with all other provisions of this article.
Matters settled by an agreement
7
1 incorporated in the decree, other
than matters pertaining to the custody,
2 support or education of the minor
children, shall not be subject to sub-
3 sequent modification by the court
except: (A) As prescribed by the agree-
4 ment or (B) as subsequently consented
to by the parties.
5
(4) Costs and fees. Costs and attorney fees may be
awarded to either
6 party as justice and equity require.
The court may order that the amount
7 be paid directly to the attorney, who
may enforce the order in the attor-
8 ney's name in the same case.
9
(c) Miscellaneous matters. (1) Restoration of
name. Upon the request
10 of a spouse, the court shall order the
restoration of that spouse's maiden
11 or former name.
12 (2) Effective
date as to remarriage. Any marriage contracted by a
13 party, within or outside this state, with
any other person before a judg-
14 ment of divorce becomes final shall be
voidable until the decree of divorce
15 becomes final. An agreement which waives
the right of appeal from the
16 granting of the divorce and which is
incorporated into the decree or
17 signed by the parties and filed in the case
shall be effective to shorten
18 the period of time during which the
remarriage is voidable.
19 Sec. 2. K.S.A. 1999 Supp.
60-1610 is hereby repealed.
20 Sec. 3. This act shall
take effect and be in force from and after its
21 publication in the statute book.