Session of 2000
By Committee on Judiciary

  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.
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


  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


  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


  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


  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


  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


  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.