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55 Cards in this Set
- Front
- Back
Marriage Requirements
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1. Mental Capacity
2. Neither party can be married to someone else 3. Age 4. Unrelated 5. Knowing and voluntary consent 6. Parties of different sex 7. Procedural Requirements 8. Marriage solemnized |
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Common Law Marriage Requirements
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1. Capacity
2. Present Agreement 3. Holding out to public *Once formed, only way to dissolve is through divorce |
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Engagement Ring
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Engagement gifts, including the ring, are conditional gifts and must be returned if the marriage does not occur
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Void v. Voidable
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Void
1. Never existed for any purpose 2. Any interested party can attack even after the death of one of the parties Voidable 1. One of the spouses may bring an action to have the marriage declared invalid 2. Valid unless attacked 3. If the spouse with the cause of action ratifies the marriage by continuing the relationship, or if one spouse dies, the marriage can no longer be invalidated |
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Grounds for Annulment
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1. Age
2. Incest 3. Lack of capacity 4. Bigamy 5. Marriage within 30 days of divorce decree 6. Fraud that goes to the essentials of marriage |
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Duty to Support
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1. Each spouse has a duty to support the other under the common law doctrine of necessaries
2. The person incurring a debt is primarily liable; the spouse is secondarily liable; creditor can go after both at the same time |
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Separate Property
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KSA 23-201(a) allows each person to retain property:
1. acquired before marriage; and 2. acquired after marriage through gift, descent, or devise. |
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Homestead
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1. 160/1 occupied as a residence by the family of the owner
2. Exempt from forced sale 3. Can't be alienated w/o consent of both H & W 4. Debts that can attach: a. payment of obligations to buy property and improvements b. taxes c. lien given with consent of both H & W |
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Duty to Support
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Comes from common law and Doctrine of necessaries
Person incurring debt is primarily liable the spouse is secondarily liable |
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RIght to Make Contracts
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Married person can make contracts as an individual and buy or sell real or personal property as an individual.
Exceptions: • A resident spouse must consent in writing to the sale of any real property even if it is held in one spouse’s name alone or was acquired prior to the marriage. • If the conveying spouse dies, a non-consenting spouse can recover one-half of all real property that was conveyed with out with their consent. • This provision does not apply to judicial sale or property taken by other legal proceedings. |
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Right to Services and Affection
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§ Allows a suit for loss or impairment of a spouse’s ability to perform
domestic duties. § The consortium action is not an independent action in Kansas but collateral to a tort action against a wrongdoer |
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Kansas Protection from Abuse Act
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§ Persons in a dating relationship may also seek a PFA. Factors to
determine a dating relationship are: • Nature of relationship, length of time, frequency of interaction, time since termination, if applicable § Abuse is defined as: • Intentionally attempting to cause or causing bodily injury; • Intentionally placing another in fear of bodily injury by threat; • Engaging in sexual activity with minor under age 16 or fondling to satisfy desires of adult |
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Separate Maintenance
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• Allows the spouses to live separate and apart pursuant to a court order.
• Grounds for separate maintenance are the same as for divorce |
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Grounds for Divorce
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1. Incompatibility
2. Failure to Perform a Marital Duty 3. Mental Illness |
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Incompatibility
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Parties goals are so irreconcilable as to make it impossible for
them to continue living as husband and wife • No defenses in divorce • Even if one parties denies incompatibility the court will still grant divorce |
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Subject Matter Jurisdiction - Divorce
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Parties goals are so irreconcilable as to make it impossible for
them to continue living as husband and wife • No defenses in divorce • Even if one parties denies incompatibility the court will still grant divorce |
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Personal Jurisdiction - Divorce
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Person is in the state
• Personal service out of the state on a KS resident • Submission to jurisdiction by voluntary entry of appearance • Inadvertent submission to KS jurisdiction (tagging) • Long-arm statute o U.S. – requires minimum contacts o Married in KS and one party continues to reside there is a popular long-arm technique The trial court first obtaining original jurisdiction retains continuing jurisdiction to the exclusion of all other KS courts. |
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Venue
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Actual resident at the time of filing or the county where the respondent can be
served or/and adjacent county to a military post |
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Marital Property
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all property of the parties, whenever acquired and however
tilted, wither held individually or by co-ownership, as of the time of filing of an action for divorce, spate maintenance or annulment is marital property and is subject to division. In KS, the court may divide all property regardless of how it was titled or acquired. o The court is not required to credit either spouse with the initial value of property brought into the marriage or acquired during the marriage by gift or inheritance § Only property that is excluded by a valid agreement between the parties is seen as separate property and is not subject to division by the court |
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Retirement Pension
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In dividing defined-contribution plans, the court shall allocate profits and losses on the non participant’s portion until the date of the divorce or separate maintenance decree. Value is
set at the time of the divorce o If retirement benefits are not totally accumulated during the marriage, a formula can be used based on the number of years of marriage compared to the number of years the participant was in the plan. Although the entire pension is subject to division the court will look at the time, manner and source of acquisition in dividing it. |
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Methods for Dividing Pensions
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Present value – present value of the pension is assessed and that value is divided by the court using other types of property to offset the value
Qualified Domestic Relations Order – is an order to a pension administrator to pay part of pension to an ex-spouse |
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Military Pension
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• Military disability pensions cannot be divided
• Military retirement pensions can be divided |
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Goodwill
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Goodwill of a business is martial property to the extent that goodwill
is marketable. The goodwill cannot be dependent on the reputation of the professional |
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Personal Injury Award
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• If the award compensates for losses to the marital estate, such
as medical expenses or lost wages, it is marital property • If the award compensates for the loss of future earning it is not marital because it replaces post divorce earnings |
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Distribution of Property
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Factors to determine "just and reasonable" split:
1. Age of parties 2. Duration of the marriage 3. Property owned by the parties 4. Present and future earning capacities 5. Time, source, manner of acquisition of property 6. Family ties and obligations 7. Allowance of maintenance 8. Dissipation of assets 9. Tax consequences of the property division 10. Such other factors as the court considers necessary to make just and reasonable division |
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Orders Allowed in Distributing Property
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The sale of the martial property if it cannot be otherwise
divided; o Offsetting cash payments; or o The imposition of liens when installment payment are ordered |
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Insurance
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needs more than a general property waiver the decree
must provide for any changes in beneficiary designation on insurance; trusts and pay on death accounts |
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Marital Debt
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if it is joint debt, the divorce does not affect third-party creditors.
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Valuation
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Date of Valuation can be set at the discretion of the court. Valuation date
can be the: § Date of separation; § Date of filling the petitions; § Date of the divorce; or § Some date in between depending on facts of the case |
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Maintenance
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The factors the court considers in awarding maintenance are:
1. Age of parties; 2. Present and prospective earning capacity; 3. Length of marriage; 4. Property owned by the parties; 5. Needs; time, source, and manner of acquisition of property; 6. Family ties and obligations; 7. Overall financial situation Trial judge may award maintenance to either party for a time not to exceed 121 months. |
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Modification of Maintenance
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§ court ordered maintenance may not be increased or accelerated without the
consent of the obligor § court ordered maintenance may be reduced upon a showing of § material change of circumstances that were not anticipated but only before the maintenance period ends § if maintenance is set in a separation agreement, the court has no power to modify except as the agreement provides § past due installment of maintenance may not be modified |
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Termination of Maintenance
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Death of either party;
• The remarriage or sometimes cohabitation of the person receiving the maintenance • The time set in the decree • Provisions in an agreement of the parties |
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Child Support
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Child support Guidelines – support amount based on the parents’ combined
income and proportionate shares and the age of the child. All sources on income are included. Income will be imputed if parent is deliberately underemployed or unemployed o A person must ask for any adjustment and that party has the burden of proof o To deviate from the guidelines the judge must make finding to show how it is in the BIC o Health Insurance o Tax Consequences – generally goes to the custodial parent |
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Termination of Child Support
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Parents cannot reduce or terminate child support because the right belongs
to the child § Child support may be terminated upon: • Death of parent or child • Child turning age 18 • If the child is still in high school on June 30th of the year when child turned 18 • Until the child finishes high school if the parents agreed to hold the child back • Beyond 18 if the parents agreed to pay longer in a written agreement approved by the court |
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Modification of Child Support
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§ Court has continuing jurisdiction to modify child support based upon a
material change of circumstances. Can also modify if: • It has been 3 years since the last order • Increase or decrees of 10% in the guidelines amount • Child reaches a higher age group having passed his 6th or 12th birthday • Emancipation of the child |
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Multiple Family Application
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when spouse remarries and has more kids
• A parent cannot file for a reduction of support to the first children based on the birth of additional children • However, if first children seek additional support, the parent can use the total number of children to be supported to determine child support |
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Child Support Jurisdiction - Initial Order
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Court must have personal jurisdiction over the parent to order child
support. • Uniform Interstate Family Support Act (UIFSA) allows expanded long arm jurisdiction if: o The individual resided with the child in KS o The individual resided in KS and provided prenatal expenses or support of the child; o The individual engaged in an act of sexual intercourse in KS and the child may have been conceived by the act o The child resides in KS as a result of the acts or directives of the individual o Any other basis consistent with the constitutions of KS and U.S. |
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Modification of Child Support Jurisdiction
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The decree state retains continuing, exclusive jurisdiction as long s
one party remains in the state • If all parties leave the decree state, the person seeking to modify the order must go to the other party’s state. § Under UIFSA, only the decree state has ability to modify duration |
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Enforcement of Child Support Order
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§ Direct wage withholding
• A wag withholding order in one state can be sent directly to the employer of the person who is obligated to pay the support in another state § Registration • A party can register a child support order in the state in which the other parent lives |
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UCCJEA - Child Custody Jurisdiction
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o Original or Initial Orders
§ Primary basis for jurisdiction is home state – the place where a child has lived for the past 6-months immediately preceding the filing of a petition for custody • Home state also continues for 6-months after a child leaves the state if one parent or person acting as a parent remains. § A court of another state does not have home state jurisdiction or the child’s home state court has declined to exercise jurisdiction on the ground that: • The forum state is more appropriate, and • The child and a parent have a significant connection other than mere physical presence; and • Substantial evidence is available in forum |
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Declining Jurisdiction
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§ A court must decline jurisdiction if a suit is pending in another jurisdiction
§ A court may decline jurisdiction if it finds that the party requesting jurisdiction engaged in unjustifiable conduct (unclean hands) § A court may decline jurisdiction if it finds that it is an inconvenient forum. The court looks at: • Another state is or was home state recently; • Substantial evidence concerning child’s present or future care is available in another state; • Another state has a closer connection with the child and the child’s family; • If parties have agreed on another forum which is no less appropriate; or • If the exercise of jurisdiction would contravene any of the purpose of the UCCJEA |
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Parenting Plan
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Must provide at a minimum:
o A designation of the legal custodial relationship, o A schedule for the child’s time with each parent, and o A provision for alternative dispute resolution in the event of disagreements between the parties |
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Forms of Child Custody
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Joint custody with join decision-making power and responsibility with both
parents o Sole custody with primary decision-making power and responsibility with one parent |
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Factors for Determining Child Custody
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Child’s adjustment to home, school and community; the child’s desires; the
parent’s desires; the relationship and interaction of the child with parents, siblings, and any other person who may significantly affect the child’s best interests; the length of time the child has been in the care of a person other than a parent and why; evidence of domestic violence; which parent is more likely to foster a continuing relationship with the other |
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Third Party Visitation
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o Grandparents and step-parents can petition for visitation with a child in three
situations: § The grandparents’ child has died and the remaining biological parent has remarried AND the stepparent adopts the grandchild. § Paternity action § Divorce Action o Grandparent and step-parent have the burden of showing that: § They have formed a substantial relationship with the child; § It is in the BIC to continue the relationship |
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Modification of Child Custody
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Jurisdiction to Modify – UCCJEA provides for continuing, exclusive jurisdiction
in a court that has made a custody determination consistent with UCCJAE until: § Neither the child or the child and a parent have a substantial connection with the state and substantial evidence concerning the child is no longer available; OR § The child, parents, and any person acting as a parent have all left the state (if this happens jurisdiction of original orders decides, i.e. home state) o Parental Kidnapping Prevention Act (PKPAP § Federal law that requires that a state give full faith and credit to a custody decree from another state if custody order was made in conformity with PKPA jurisdictional principles. o The general standard for modifying a child custody award is a material change in circumstances affecting the child. o Default or Stipulation § If a custody decree is entered in a default or stipulated divorce and facts were not presented to the court, the trail court may in its discretion admit evidence as to fact existing at the time of earlier order. § The court may enter nay order which could have been entered at the initial hearing whether there has been a changed in circumstances or not |
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Relocation
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The parent who wants to change the residence of a child, whether across
the street or across the country, MUST give 30-days notice § The nonresidential parent may ask for a hearing and the court may consider it a changed of circumstances § At the hearing the court will consider: • Effect of the move on the BIC • Effect of move on the parenting time plan • Increased cost of moving on parenting time |
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Separation Agreement
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o Requirements:
§ In writing or made orally on the record; § It is entered into because of the divorce; AND § It is approved by the court o Standard the court will use is whether or not the agreement is valid, just and equitable. o With property division the trial court must have sufficient evidence of values of property o Terms of Separation Agreements can include: § All aspect of the divorce; § Terms that a court could not order but that the parties can agree to such as: • Child support beyond 18; • Escalator clauses on cost of living, etc. § The court is not bound by any terms related to the children |
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Pre-Marital Agreement
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• Kansas has enacted the Uniform Premarital Agreement Act (KUPAA). KS liberally
interprets premarital agreements to carry out the intent of the parties • Four requirements for a premarital agreement are: o It is made in contemplation of marriage o It is in writing o It is signed by both parties o There is a marriage • Premarital agreement is enforceable if: o It was enter into voluntarily, and o It was not unconscionable OR disclosure requirements are met. This can be satisfied by § Actual financial statements § Waiver of disclosure § General knowledge of extent of property o Unconscionability is an issue only if there is no disclosure or waiver (this is judged at the time of execution of agreement) o Kansas has no requirement for independent counsel • Limitations on contracting o The agreement cannot violate public policy o A premarital agreement cannot be contrary to the criminal law of KS o It cannot affect adversely child’s right to support o It cannot bind the court on the issue of child custody o It cannot eliminate spousal support if a spouse would become a public charge Revocation • o After marriage the agreement can be amended or revoked only by written agreement signed by the parties |
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Non-Marital Children
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•
• • KS has adopted the Uniform Parentage Act The mother’s parentage can be established by proof a birth of a child The father’s parentage is presumed when: o He was married to the mother at the time the child was born (or 300 days before birth) o Before the child’s birth, he and mother married but eh marriage is void or voidable o He and the child’s mother married to attempted to marry after the child’s birth and the marriage is void or voidable, and : § He has acknowledged paternity on birth certificate or acknowledgement or § He is obligated to support the child o He notoriously or in writing recognizes his paternity o Genetic test results indicate a 97% probability that the man is the father of the child o The man has a duty to support the child under an order of support regardless of whether the man has ever been married to the mother Father’s presumption can be rebutted only by clear and convincing evidence, by a court decree establishing paternity in another man or by weightier presumption • |
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Adoption Kansas
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KS allows both minors and adults to be adopted and recognizes three types of adoption:
o Independent/private o Agency o Step parent |
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Adoption - Jurisdiction
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Independent and stepparent adoptions, the venue is in the county in which the
petitioner and child to be adopted reside o Agency adoption venue is in the county n which petitioner resides, child to be adopted resided prior to replacement or the county where the agency is located. § The Indian child Welfare Act applies to replacement of children of Indian heritage § Interstate Compact on the Placement of children applies to the placement of children in other states for foster care or as a forerunner to adoption |
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Adoption - Consent
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Living parents must consent unless:
Their right have been terminated, They have relinquished the child to STS or other child placing agency, If the father is unknown, the court must appoint an attorney to represent him, or court will terminates rights § A parent may relinquish child to a child placing agency only if the agency accepts in writing and complies with the form in the statute. o One of the parents can consent, if the other’s consent is found unnecessary, this could happen where: § The father has abandoned the child after having knowledge of the child’s birth § The father is unfit § The father has made no reasonable effort to support or communicate after having knowledge of the child’s birth § The father failed without reasonable cause to provide support for the mother during the 6-months prior to the child’s birth § The father abandoned the mother after having knowledge of the pregnancy § The birth of the child was the result of rape § The father/mother failed or refused to assume the duties of parent for 2- years preceding the filing of the petition o Consent of adoptee § If the child is over the age of 14 o A legal guardian can consent if parent are deceased or have failed to assume parental duties for two years. o SRS or other agency can consent if they have legal custody. |
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Adoption - Procedure
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o A written consent acknowledged before a notary or judge must be executed unless
consent is unnecessary o A consent must be executed not more than 6-month prior to date petition is filed o A consent given less than 12 hours after the birth of the child is VOIDABLE o Minority will not vitiate the consent, but the minor parent must have the advice of independent counsel who shall be present at the time of execution of the consent o A consent will be presumed to be valid if it is in writing and executed before a judge of the court or record or before an officer authorized by law to take acknowledgment unless there is a showing by clear and convincing evidence of fraud, duress, undue influence, mistake or lack of understanding prior to the final decree of adoption § Burden is on the consenting party. Only parents will at the time of giving the consent is relevant • A blanket consent is allowed • Attorney’s representation of both sets of parents does not of itself show lack of voluntariness of consent |
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Rights of Cohabitants
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This is defined as two persons living together as husband and wife, assuming the marital
rights, duties and obligations which are usually manifested by married people, including but not dependent on sex Property Rights o KS courts have the inherent equitable power to divide property that has been jointly acquired or was intended to be jointly acquired during the cohabitation o The divorce statue does not apply regardless of how long the cohabitants have lived together, or how much property they have accumulated Support Rights o There is no statutory protection for cohabitants o There is no obligation to support cohabitant without an expressed or implied contract Children o Unmarried cohabitants have an equal right to the care and custody of their children. o The standard used is BIC |