Marital Legal Separation and Property Settlement Agreement Minor Children Parties May have Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all-inclusive discussion of the law of separation agreements in Kansas, but
does include basic and other provisions.
General Summary: Separation and Property Agreements
may be entered into before a divorce is filed to be effective when aproved
by the court. Detailed information regarding the identity, value,
and allocation of specific iterms of property should be included in the
agreement. With the exception of provisions for the custody, support,
or education of the minor children, a property settlement agreement incorporated
into a final dissolution decree and order may not be modified unless
the agreement so provides or the parties subsequently consent.
Kansas Statutes
Chapter 60.--PROCEDURE, CIVIL
Article 16.--DIVORCE AND MAINTENANCE
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. K.S.A 60-1610(a)(3)
Financial matters; Separation agreement: If the parties have
entered into a separation 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 subsequent
modification by the court except: (A) As prescribed by the agreement or
(B) as subsequently consented to by the parties. K.S.A. 60-610(b)(3)
Case Law:
A separation agreement is subject to the same rules of law applicable
to other contracts. The intention of the parties to and the meaning of
a contract are to be deduced from the contract where its terms are plain
and unambiguous, and when the language is clear and unequivocal the meaning
must be determined by its contents alone, and words cannot be read into
a contract which import an intent wholly unexpressed when the contract
was executed. The court may not make an agreement for the parties which
they did not make for themselves. Drummond v. Drummond, 209
Kan. 86, 87, 495 P.2d 994 (1972)
Maintenance settled by a separation agreement that is incorporated
into the divorce decree is not "subject to subsequent modification by the
court except: (A) As prescribed by the agreement or (B) as subsequently
consented to by the parties." K.S.A. 60-1610(b)(3); cf. Spaulding v.
Spaulding, 221 Kan. 574, 576-77, 561 P.2d 420 (1977) (construing predecessor
statute). Thus, if a separation agreement that is incorporated into a divorce
decree does not either provide that maintenance will terminate upon remarriage
or give the district court continuing power to modify maintenance, the
district court has no power to modify maintenance upon the remarriage of
the recipient unless the parties consent. Spaulding v. Spaulding,
221 Kan. 574, 576-77, 561 P.2d 420 (1977).
A party who seeks and obtains from a trial court its approval of
a separation agreement and the incorporation thereof in a decree of divorce
and thereafter accepts the benefits of the decree cannot avoid its disadvantages
by a motion to modify except as to those matters over which the court has
continuing jurisdiction. K.S.A. 60-1610(e); Spaulding v. Spaulding,
221 Kan. 574, 561 P.2d 420 (1977).
K.S.A. 60-1610(b)(3) states in pertinent part: "If the parties have
entered into a separation agreement which the court finds to be valid,
just and equitable, the agreement shall be incorporated in the decree."
The Supreme Court has commented: "[S]eparation agreements have always been
subject to the scrutiny of the courts to prevent fraud and oppression.
This is true, of course, and in finding that an agreement is valid, just,
and equitable, as required by the statute, the agreement must be carefully
scrutinized." Spaulding v. Spaulding, 221 Kan. 574, 577, 561 P.2d
420 (1977); see In re Estate of Sweeney, 210 Kan. 216, 223, 500
P.2d 56 (1972).
Property values should be set forth in the separation agreement:
"Each major piece of property, i.e., realty, automobiles, etc., should
be listed with its value and which party is to receive the property. The
court reviewing the agreement cannot determine if it is just and equitable
without knowing the value of the property." 1 Elrod, Kansas Family Law
Handbook § 11.074D (rev. ed. 1990).
Kansas law is clear that a property settlement, once accepted by
the court and incorporated into the divorce decree, may not generally be
modified by the court except as prescribed by the agreement or subsequent
consent by the parties. Miller v. Miller, 6 Kan. App. 2d 193, 194-95,
627 P.2d 365 (1981). However, K.S.A. 1995 Supp. 60-1610 (b)(3) unquestionably
provides that the district court retains jurisdiction to modify issues
dealing with custody, support, or education of the minor children. Beard
v. Beard, 12 Kan. App. 2d 540, Syl. ¶1, 750 P.2d 1059 (1988).
