Ask a Lawyer
November 25, 2008
Need some legal advice? Well ask an attorney. Emporia attorney Tom Krueger will answer your questions. Submit your questions below.
Moderator: Our guest today is Emporia attorney Tom Krueger, who has volunteered to answer readers' questions about the law. Mr. Krueger has more than 35 years' experience practicing law. Feel free to submit your questions during the chat. We'll start with a question about criminal records. The first questions we'll address were submitted ahead of time and answers were prepared in advance. That means the first anwers will come quickly and allow time for more questions. Be sure to refresh your screen frequently to keep track of the chat.
shift: If someone was convitcted as a felon as a child, does he report that on job apps and is it legal for him to own or buy a firearm? Is it impossible for someoe in this situation that has completly changed to be in law enforcement?
Tom Krueger: In answering your first question, he must report that he is a convicted felon on job applications. However, there are certain felonies that can be expunged by filing a Petition for expungement with the District Court. The person has to have satisfied the sentence imposed by the court before filing for an expungement, and the expungement must be consistent with public welfare and the circumstances warranting an expungement. If the expungement is granted by the Court the person does not need to report the conviction on job applications. The answer to your second question about whether or not he could own or buy a firearm depends upon the nature of the felony. Federal and Kansas law sets certain time lines as to when a person can purchase or own a fire arm which varies from 5-10 years from the date of conviction to a life time prohibition. To answer your last question, even if the felony has been expunged from the person's record, the person cannot be in law enforcement.
stevo: How do you find a copy of a will after somebody has passed away? If they have been read, do they become public record? Several years ago, my grandmother and Grandfather passed away and I do not believe that I was not mentioned in the will and not even sure it has been read..They told me they had one, but do not know with who. My mother says she has not seen it but her brother has settled with the estate and given her money. Is there anything I can do or not? Any advise would be helpful. Thank you
Tom Krueger: After someone has passed away, if there is a question as to whether or not the deceased had a will then you would search their residence or see if they had a lock box, a safety deposit box or a lawyer. If that person had a lawyer, contact the lawyer's office. Reading the will does not make it become public. It sounds like from your question that there probably wasn't a will based upon your statement that your mother's brother had settled with the estate. If there was an estate probated your mother would have been given written notice. An attorney would be able to assist you in finding out the nature and extent of your grandparents' assets by doing a title search and finding out how the property was titled, which may give you the answers you are looking for.
blueyez0924: On March 6 of this year I wrote out a paper that stated: I, Stefanie McCormick, being the mother of the minor child, Austin Lane McCormick-Collins, give Cathrine Landis temporary guardianship for the purpose of getting medical attention, WIC, or anything else needed. I had it notorized. It was never submitted to any courts. My mother has had my son since March due to me being incarcerated. I was released on Aug. 15th and she would not give him to me. What I am wondering is that since that paper said temporary guardianship would that hold up in court or since I am terminating the guradianship does it give me my rights back?
Tom Krueger: Kansas Statutes sets out a detailed procedure for the appointment of a guardian for minor children and that procedure must be followed to establish a legal guardianship. What you signed was in the nature of a power of attorney, which can be revoked by you at any time.
lisasmith: How long does it take to get Administration Judge Hearing for SSI
Tom Krueger: There is such a backlog of pending cases that it is taking an average of 2-3 years. Hearings have been held earlier or later, but 2-3 years is the average.
Happiness08: What are the different types of bankruptcy, and how do you file for one of them? What is the cost to do this?
Tom Krueger: There are two different types of bankruptcy cases that are usually used by people who need help ending their bill problems - Chapter 7 and Chapter 13. Chapter 7 is designed for individuals (and married couples) who can't pay their bills. The typical Chapter 7 client is someone whose income minus their regular average monthly expenses (not including debt payment) yields no money left over. For people with household income above the median, Chapter 7 would be appropriate where average income over the past six months (called current monthly income") minus expense allowances yields an amount that falls within certain guidelines. Under Chapter 7, a trustee takes control of all property that is not specifically exempt; you get to keep many types of property because the law lets you keep it. In return, the court allows you to wipe out many types of debts. Generally, Chapter 7 bankruptcy lets you wipe out debts from: credit cards, store cards, medical and dental bills, and unsecured personal loans. There are other types of debts that may be able to be discharged (wiped out) in Chapter 7 bankruptcy as well. It's useful to realize that the vast majority of people who file Chapter 7 bankruptcy get to keep all of their personal belongings - in Kansas people who file Chapter 7 may be able to keep a home and a car, subject to paying any indebtedness on such property. A Chapter 13 is a repayment plan, or reorganization plan, for individuals. The repayment may be pennies or it may be 100%, depending on the debtor's income and the value of their assets. The debtor proposes the terms of the plan which must last between 3 and 5 years. The automatic stay prevents creditors from taking any collection action during the case. Chapter 13 can be used to cure defaults on home mortgages or to reduce the interest rate on high cost car loans. It can operate as a no interest, no penalties, tax repayment plan. In Chapter 13, the debtor makes a monthly payment to the Chapter 13 trustee, who in turn, distributes money to the debtors creditors according to the terms of the Chapter 13 plan. Throughout the case, the debtor keeps his property. At the end of the payment plan, the debtor gets a discharge of all of his dischargeable debts. It can be a powerful and affordable tool for getting back on your financial feet. Bankruptcies are filed in the United States Bankruptcy Court and the court's filing fee is $299.00. There are requirements for pre and post filing consumer credit counseling and those fees vary depending upon the credit counseling agency. You should always talk with an experienced bankruptcy lawyer when making a decision to file Chapter 7 or Chapter 13 and the attorney will quote you his/her fee for preparing and filing the bankruptcy.
YaHooSis48: Can a 16 -17 year old decide for himself where he wants to live. Can he decide to live with a Grandparent instead of a parent. What actions would need to be taken?
Tom Krueger: An unemancipated 16-17 year old cannot decide for themself where they want to live and therefore the child cannot decide to live with a grandparent instead of a parent. Absent child abuse by a parent who has custody of a child or emancipation, a minor child cannot initiate a change of custody.
chiefsfan: I live in Colorado, and don't know if the law is different from state to state, so don't know if you can answer this or not. My place of employment's dress code is such that Friday's are labeled as "casual days" where we can wear colored jeans and casual (but work appropriate) tops. Recently we received a memo (after I had worn my NFL team's jersey-KC chiefs!), that only Bronco jerseys were allowed to be worn. Can a job enforce that only ONE NFL team jersey is allowed? I feel that if they allow one team, they should allow ALL teams. Thank you.
Tom Krueger: The laws do differ from state to state. In Kansas an employer can set workplace dress codes and can enforce that policy, but dress codes cannot infringe upon a person's decency or religion.
kjl023: What can you do if an adult of 18 and their brothers and sister start cursing at you and want to start trouble. I know you can not do anything to the minor kids. The parents do not do anything to control the problem and they act the same as well. I do not want to damage my good name. Can you help.
Tom Krueger: This does not sound like a legal problem but an association problem. You should avoid these people.
dominga: I was told that the police have to announce who they are before they kick a door in for a drug search. Is this true? And if so They did not announce who they were until after they kicked my door in. This was a year ago, could I go back and have my charges dropped for this reason.
Tom Krueger: The constitutional preference is to knock and announce; however, there are specific circumstances such as the likelihood of destruction of evidence or danger to a police officer which must be present when obtaining a search warrant that would authorize a "no knock" warrant. The issue of an illegal search must be presented to the Court prior to trial.
jrcows: What would you suggest for someone who can't keep up with the monthly payments on credit cards due to other debt, house, car, daycare, etc and we have "cut" our budget to the bare minimum and consumer credit counseling said they can't help us. I'm not even sure if bankruptcy would help us out if we still are paying cars, first and second mortgage and day to day bills: daycare, meds, dr bills, etc.
Tom Krueger: I suggest that you visit with a lawyer to see if a Chapter 13 or a Chapter 7 bankruptcy would work for you. Depending upon your income, you could get rid of the credit card debts, the medical bills, and adjust the payments on your car loans.
lacy79: I have a 3 year old daughter. Her father lives in Emporia also but never calls or comes to see her. He says he is going to take her away from me. She has lived with me since she was born and she is almost 4. Will he be able to take her away from me? I am moving to Hawaii in a year when my husband gets back from Iraq and he says he can stop me from going. But yet he never sees her. His parents see her a lot but he never does. I want to get her name changed to my new last name since I got married. She has my maiden last name. How do I go about doing that?
Tom Krueger: The first thing you need to do is obtain legal custody so that the father cannot remove the child from your custody without your consent and/or a court order. If he does he would be subject to federal and state laws relative to kidnapping.
Tom Krueger: Kansas law requires that any parent with rights of legal custody must give the other parent written notice not less than 30 days prior to any change in the residence of the child by certified mail, restricted delivery, return receipt requested. The only exception to this requirement is if the other parent has been convicted of a crime in which a child was a victim. The other parent has the right to request a hearing objecting to changing the child's residence and the Court will then determine what is in the best interest of the child. In order to change the child's last name, a court proceeding is required with notice to the natural father. In determining whether or not grant a name change for a minor child, the Court weighs the best interests of the child with the best interests of the child's parents.
ship: My exhusband hasnt paid child support or maintenance for a year and a half. What can be done to enforce this court order. And is it gonna cost me since he is the one not fullfilling a court order.
Tom Krueger: Child support is enforced in two stages. The first state is when the support becomes due. This enforcement is in the form of an income withholding order. The income withholding order is either a voluntary or involuntary form and is basically an assignment of a portion of a payor's wages. The effect of the income withholding order is to deduct the child support from the wages. Once child support or maintenance becomes due, it becomes a judgment. All the normal tools for satisfaction of a judgment are available to collect past-due child support or maintenance. The Kansas Court of Appeals has even held that payment of child support may be made a condition of probation for a criminal offense. When there is a child support arrearage in excess of $25, it is possible to obtain an offset from the debtor's federal and state income tax refund to satisfy the child support debt. This is available through Child Support Enforcement at SRS or the Court Trustee, regardless of whether the recipient is on welfare. Garnishment is also available but with an increased maximum percentage of the payor's wages, ranging from 50% to 65%, depending upon how long the support has been in arrears and whether the payor has remarried. A garnishment of nonwage assets, such as a bank account, has no percentage limitation. Also, you can file a motion in your divorce case citing your ex-husband for contempt of court for failing to follow the Court's orders. The Court has the discretion to impose sanctions on your ex-husband, including jail time.
mythoughts: I have a domestic partner. We hold durable Powers of Attorney for each other. When one of us dies, will the other be allowed survivor's benefits from Social Security?
Tom Krueger: A Durable Power of Attorney is a written power of attorney in which the authority of the "attorney in fact" does not terminate in the event the principal becomes disabled or in the event of later uncertainty as to whether the principal is dead or alive. However, upon the death of the principal, the Durable Power of Attorney terminates. It has nothing to do with survivor benefits from Social Security. If there is no marriage the surviving partner would not be entitled to Social Security benefits, unless there is a common law marriage.
Moderator: Mr. Krueger has also provided answers to some questions he hears frequently. Let's have a couple of those.
Moderator: My boyfriend and I have been living together for 2 years, are we married by common law?
Tom Krueger: Kansas has recognized common law marriages for over 100 years. In order to establish a common law marriage there are 3 elements: (1) the parties must have the legal capacity to enter into a marriage relationship, (2) the parties must have formed a present agreement to marry and (3) the parties must hold each other out to the community as husband and wife. The minimum age to enter into a common law marriage is 18 years of age. The present agreement to marriage does not need to be in any particular form, nor does it need to be in writing. It must demonstrate a mutual, present consent. The agreement may be evidenced and established by the parties' conduct. Holding themselves out to the community as husband and wife would include filing joint tax returns, opening and maintaining joint checking and/or savings accounts, designating the other as beneficiary under an insurance policy, using the same surname and having children together. A couple can live together for any length of time without establishing a common law marriage unless the 3 elements listed above are present.
Moderator: If two parties have lived together for a number of years and have acquired property together, but there is no common law marriage, and they separate, what do they do if they cannot agree on a division of property?
Tom Krueger: Kansas law provides that courts have the power to dissolve a non-marital relationship, including division of the parties property and liabilities.
Tom Krueger: Kansas law provides that courts have the power to dissolve a non-marital relationship, including division of the parties property and liabilities.
dominga: My daughter got a ticket for allowing a unlicensed driver drive her car. She was age 16 at the time. She went to court and told the judge that she did not know her friend didn't have a license. The court told her to prove it. How are you supposed to prove it. She told them she didn't know what else do they want? She was suppose to return back to court to somehow prove this but she never did since she didn't know how, so now she's in trouble for this also.
Tom Krueger: She should request that the court issue a subpoena for her friend to appear in court and have her friend tell the judge under oath that your daughter did not know she was an unlicensed driver.
Moderator: Is palimony available in Kansas?
Tom Krueger: Palimony, which is non-marital maintenance or alimony, is not available in Kansas. The Kansas Supreme Court has held that palimony is unavailable unless the parties have an express support contract.
Moderator: Can a person under 18 years of age obtain a marriage license?
Tom Krueger: Yes, but they must have the consent by all living parents or legal guardians, or by one parent or guardian and a district court judge prior to the issuance of a marriage license.
Moderator: Are marriages contracted outside the State of Kansas valid in Kansas?
Tom Krueger: Kansas Statutes recognize marriages contracted outside the state, that are valid in the place they were contracted, except that Kansas will only recognize marriages from other states entered into by parties of the opposite sex.
Moderator: I want to change my name, what do I need to do?
Tom Krueger: The District Court has the authority to change the name of any person who is a Kansas resident for a minimum of 60 days and the person must provide a reason for the requested name change. If the Judge believes that there is reasonable cause for changing the name the Judge will grant the order changing the name. The Petitioner must provide the name he/she wishes to assume but may not use a number, symbol or abbreviation as a name under the law. The court may not grant a name change if it finds that the reason is fraudulent or infringement on another person's rights. In some cases the Court will require a publication notice and written notice be sent to any interested parties. Upon a judicial determination approving the name change, the party may request the issuance of a new birth certificate by presentation of an authenticated copy of the court order changing the name. In the case of a divorce or annulment, the court may not deny a woman's request for restoration to her former maiden name.
Moderator: What is a contingent fee contract?
Tom Krueger: A contingent fee contract is an agreement where the lawyer agrees to represent a client and will be paid only upon achieving a certain result. Contingent fee contracts are normally entered into between a lawyer and a client relative to personal injury and workers compensation cases. A lawyer cannot enter into a contingent fee contract in divorce or criminal cases.
Moderator: Do I need a lawyer to represent me in a real estate transaction?
Tom Krueger: Normally no when there is a real estate broker and sales person involved. However, if it is a sale by owner then it is recommended that the buyer obtain legal advice in regard to the contract. It is certainly advisable to seek the advice of an attorney in connection with any type of complex commercial transactions.
Moderator: I'm thinking of getting remarried, do I need a prenuptial agreement?
Tom Krueger: The essence of premarital or prenuptial agreements is that they permit marrying parties to privately agree in advance of the marriage certain economic and personal expectations in their anticipated marital relationship. The purpose of a premarital agreement is to relinquish, create or vary property rights that would otherwise pertain at the time of the termination of the marriage by death or operation of law. Normally the court is required to make an equitable division of all of the net worth of the parties owned prior to the marriage and that is acquired during the marriage. This can be based upon a variety of factors. In a practical matter the court will usually divide the parties' net worth approximately equally between them and if one of the parties is reasonably financially dependent upon the other, spousal support is in an amount based upon the relative income of the parties and their needs, but is typically 20-25% of the difference between the income of the parties and for a period of time equal to approximately 1/3 of the length of the marriage. In the event of death, the surviving spouse is entitled to one-half of the decedent's property and in certain cases, a special allowance can be made for more property. Premarital agreements may be written to limit or reduce these rights upon the termination of the marriage by death or operation of law.
Moderator: If I am injured by someone, and it is someone else's fault, what am I entitled to?
Tom Krueger: The law allows you to recover various types of damages and there are deadlines in making such a claim. In connection with automobile accidents, if your medical expenses are $2,000 or more you are entitled to make a claim for pain and suffering which you have suffered or will suffer in the future due to your injury. These damages are in addition to your claim for lost wages and medical expenses. A claim can be made for the cost of all reasonable and necessary medical expenses that have been incurred or are reasonably certain to be incurred in the future because of your injury. You are also entitled to recover lost earnings and fringe benefits. If your injuries permanently limit your ability to earn, you can recover the value of the reduction of your earning capacity. Even if a person is not employed at the time of your injury, he or she is entitled to an award for impairment or diminution of earning power. Damages for wrongful death are available to a wife, husband, parent and child of the deceased person. Damages are not always limited to economic loss but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection and marital care. If the injury causes scarring you are entitled to recover for disfigurement and humiliation or embarrassment. Serious injury to one spouse may cause damage to the marital relationship and if that happens the spouse would be entitled to a claim. In addition, you are entitled to recover damages to your vehicle or other property.
Moderator: My wife has a child by a prior marriage. I would like to adopt that child, what is the procedure?
Tom Krueger: In step-parent adoptions, both the birth mother and birth father must consent to the adoption, unless it can be shown that consent is unnecessary because the birth father (1) has abandoned or neglected the child after having knowledge of the child's birth, or (2) if the birth father is unfit or incapable of giving consent, or (3) if the birth father has made reasonable efforts to support or communicate with the child after having knowledge of the child's birth, or (4) the birth father having knowledge of the pregnancy fails, without reasonable cause, to provide support for the mother during the 6 months prior to the child's birth, or (5) the birth father abandoned the mother after having knowledge of the pregnancy, or (6) the birth of the child was the result of the rape of the mother, or (7) the father has failed or refused to assume the duties of a parent for two consecutive years preceding the filing of the petition for adoption.
Moderator: I'm interested in obtaining information about a divorce or an annulment.
Tom Krueger: Kansas District Courts have jurisdiction to grant a divorce or an annulment to any married person who lives in this state, regardless of where the other party lives. Kansas law does not specify any residency requirements for either separate maintenance or annulments; however, there must be some reasonable basis upon which there is a residence in the state. If the other party is not served with a summons in the State of Kansas, the court is limited in its power to make any financial orders and can only divide whatever property is physically located in the State of Kansas. If all of the property is located within Kansas the Court can determine how the property should be divided, even if it gives all of the property to the party residing in the State of Kansas. Kansas courts do not have the power to divide any property which lies outside the boundaries of the state of Kansas.
Moderator: What is the purpose of an annulment?
Tom Krueger: An annulment seeks to have a marriage dissolved and declared invalid. It may be requested when a marriage is either void or voidable. A void marriage is whenever there is a legal prohibition to a party becoming married, which is dependent upon the law in the place in which the parties were married. A voidable marriage is when there is a material fact existing at the time of the marriage about which one or both of the parties were unaware which would have led them not to get married, where there was fraud, mistaken fact, marriage before the appeal time from a previous divorce has expired, marriage between persons of insufficient age, any grounds that the marriage was not voluntarily entered into such as duress or coercion and any other reasons within the discretion of the court. An annulment determines that the parties' marriage was a nullity and dissolves the marriage. Separate maintenance does not dissolve the marriage, they continue to be married. In either case the court can determine a division of property and debt and may also determine issues regarding child custody, visitation and child support.
Moderator: What is the difference between an annulment compared to a divorce?
Tom Krueger: An annulment determines that a marriage was void at its inception, whereas a divorce is a dissolution of a valid marriage.
Moderator: What are the requirements for filing a divorce in Kansas?
Tom Krueger: One of the parties must have an actual residence in the state of Kansas for 60 days or more prior to filing the petition for divorce with the district court. Kansas has one of the shortest residency requirements for filing a divorce in the United States. The most common ground for requesting a divorce is incompatibility. Once a person alleges incompatibility with a spouse the court must grant the divorce and cannot deny a divorce. There does not have to be any evidence supporting the incompatibility. The only other grounds for divorce in Kansas is an allegation of failure to perform a material marital duty, which may be considered by the court in determining property division and in child custody matters. The law provides that a divorce cannot be heard prior to the expiration of 60 days from the date the petition for divorce is filed, unless the court determines that an emergency exists. This 60 day period is commonly referred to as a "cooling off" period.
hornetfan00: long story but have 2 marriage certificates one in Kansas and one in another state.....with the same person of course. Divorcing now....how is this handled? Do you file for divorce with the first issued certificate?
Tom Krueger: It doesn't make any difference. The court will terminate the marriage regardless of the number of marriage certificates.
Moderator: Wow! That's all the time we have for today's chat and we can't remember a chat with so much solide information packed into one hour. Thanks to To Krueger for sharing his knowledge of the law and experience with us. This chat will be posted online with the rest of The Gazette chats. A transcript will be published in the print edition of The Gazette.
Tom Krueger: DISCLAIMER: The information that you obtain regarding your inquiry is not nor is intended to be legal advice. You should consult an attorney for legal advice regarding your individual situation. Contacting me through this site does not constitute an attorney/client relationship nor do my responses constitute a legal opinion.