Ask an Attorney: Online Chat with Tom Krueger
January 25, 2012
Emporia attorney Tom Krueger will be at the Emporia Gazette offices to answer readers questions about the law and working with Attorney's.
Moderator: It's 1:30 and time to start our online chat today with Attorney Tom Krueger of Emporia. Tom will be with us for 30 minutes to answer your questions. Submit your questions now to guarantee we will have time to get to them. We have a lot of questions to get to so we will get started.
moderator: 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.
moderator: I am married and have property in my name only. If my husband is sued can the creditor take my property to satisfy his debt?
Tom Krueger: The answer is no. “Marital” property only arises upon the filing of a petition for divorce, annulment or separate maintenance. Marital property includes all property: separate property as well as property acquired during the marriage by either or both spouses held solely or jointly. Once a petition has been filed, each spouse has a vested interest in the property of the other spouse; however, a judgment creditor cannot take the property of the other spouse until the court determines the interest of each spouse.
moderator: My wife and I own property that is titled to us individually or the survivor. When I die does my wife inherit all of the property?
Tom Krueger: The answer is no if you have children. A conveyance of property to a husband and wife together or jointly or the survivor, without any other statement creates a tenancy in common in Kansas. A tenancy in common is the type of concurrent ownership in either real or personal property created by an inter vivos conveyance, by a testamentary gift, or by intestate succession to two or more persons. Each person has an undivided interest in real or personal property. A presumption exists that the property held by tenants in common is held in equal shares. In order for the property to be transferred to your spouse, the document creating the transfer must use the language “as joint tenants with the right of survivorship and not as tenants in common”.
moderator: I am divorced and have remarried. I want to have my child use my husband’s name to avoid confusion at schools. What can I do?
Tom Krueger: You must file a petition in court requesting a name change. The child’s father is an interested party and is entitled to notice of the hearing for the name change. If he objects, the court must determine if it is in the child’s best interest to retain the biological father’s name or to assume the proposed name. For example, a nonresidential parent who maintains close contact with the child by visiting and paying child support will probably be successful in contesting a name change.
moderator: My boyfriend and I are living together and we have accumulated a lot of property together. What happens if we break up and are unable to agree on how to divide the property?
Tom Krueger: Assuming that you are not living together as husband and wife, thereby establishing a common law marriage, there are equitable theories, such as constructive trust, quasi contract or quantum meruit which give broad discretion to the judge who can impose contract rights and give the parties rights in property as if they had been married. Kansas courts may exercise inherent equitable power to divide property jointly acquired by unmarried cohabitants independent of that statute.
moderator: I am planning to get married in the near future. Do I need a prenuptial agreement or premarital contract?
Tom Krueger: A primary function of premarital contracts is to either relinquish, create or vary rights given by law to married parties upon marriage, divorce or death. There are several valid reasons for wanting a premarital agreement: 1. To protect family businesses, professional parties, pensions; 2. To assure fair treatment of children; 3. To protect preexisting assets from the statutory share; 4. To protect income and assets acquired before or during marriage in case of divorce; 5. To fix economic rights and obligations between the spouses, including contributions to household expenses and taxes; and 6. To reduce or eliminate a support obligation if the marriage ends in divorce.
moderator: I was married in Mexico. Am I considered to be married in the State of Kansas and do I have to obtain a divorce?
Tom Krueger: All marriages contracted outside the State of Kansas which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state. It is the strong public policy of this state only to recognize as valid marriages from other states that are between a man and a woman and not against public policy.
moderator: Can parties of the same sex be married in Kansas?
Tom Krueger: No. Marriage is defined in K.S.A. 1998 Supp. §23-101 as a “...contract between two parties of the opposite sex.” Therefore, homosexuals may not marry each other in Kansas. K.S.A. 1998 Supp. §23-115 states that same sex marriages violate Kansas public policy and such a marriage from another state will not be recognized.
moderator: What is the age requirement for marriage in the State of Kansas?
Tom Krueger: K.S.A. 1998 Supp. §23-106 sets 18 as the age to marry without consent in Kansas. Under age 18, the parent or guardian and a judge of the district court must consent. A judge’s consent is not required if both parents and the legal guardians consent. If the parents are divorced, either custodial or noncustodial parent may consent to the marriage of the child. Only a district court judge’s consent is necessary if, after investigating the facts, there is no parent or guardian. Kansas does not require a judge to consent or waive parental consents if the girl is pregnant.
moderator: What are the restrictions on who can marry?
Tom Krueger: K.S.A. §23-102 and §23-103 prohibit incestuous marriages. In Kansas, all marriages between parents and children, including grandparents and grandchildren of any degree, brothers and sisters, either half or whole blood, uncles and nieces, aunts and nephews and first cousins are incestuous and absolutely void. Some states prohibit marriages between persons related by adoption. Kansas courts have not yet directly addressed that issue. However, there is a letter from the Attorney General’s Office in 1996 which indicates that an adopted brother and sister could marry in Kansas.
Tom Krueger: K.S.A. §23-102 and §23-103 prohibit incestuous marriages. In Kansas, all marriages between parents and children, including grandparents and grandchildren of any degree, brothers and sisters, either half or whole blood, uncles and nieces, aunts and nephews and first cousins are incestuous and absolutely void. Some states prohibit marriages between persons related by adoption. Kansas courts have not yet directly addressed that issue. However, there is a letter from the Attorney General’s Office in 1996 which indicates that an adopted brother and sister could marry in Kansas.
moderator: My boyfriend and I have been living together for 5 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.
jasper007: I have Post Traumatic Stress Disorder from witnessing a bad accident at my workplace about 5 years ago. I receive SSD. I have gone through therapy for past 4 years. I have finally come to grips that I will not be able to work again, although I have tried. Lately, I have become frustrated knowing my life will never be the same. I am 59 years old and had been working since I was 16 years old. SSD is a fixed income which is difficult to live on. The future does not look good, considering the economy, on-going health issues, high and un-paid medical bills, etc. Would it be possible to file a suit against my former employer in the hopes to recover past/ future monies that I have lost due to my PTSD? Is it too late to file any type of suit? The accident on site was due to the negligence of an employee. We had had many safety meetings, where the cause/prevention of this type accident had been a subject on many occassions, so we were all aware of the possibilities of this type of accident happening. Thank you for your time.
Tom Krueger: In order to make a recovery for injuries in the workplace, there must be a physical conduct causing the injury. The PTSD was not a result of physical conduct thus there would be no claim under Kansas workers compensation laws. In any event, a claim over 5 years would be barred by the statute of limitations.
moderator: What is the blood alcohol level for driving after consuming alcohol?
Tom Krueger: The alcohol concentration in a person’s blood or breath as shown by any competent evidence, including other competent evidence as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013 and amendments thereto, is .08 or more. However, it is unlawful for any person less than 21 years of age to operate or attempt to operate a motor vehicle in this state with a breath or blood alcohol content of .02 or greater.
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: 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.
moderator: My exhusband hasn’t 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 fulfilling 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.
moderator: Hometown Kid asked - How much time in advance must a person be subpoenaed before they are expected to appear at your office for a deposition? Is less than twenty-four hours acceptable? And it wasn't a murder case?
Tom Krueger: Kansas law requires "reasonable notice". Less than 24 hours would not be reasonable and thus is not acceptable.
moderator: What is the legal liability for golfers?
Tom Krueger: No one should be thinking or talking – about the law on the golf course (that goes for lawyers, especially). But today golfers who think bunkers and ponds are the only hazards they have to worry about could be surprises. Players sue other players, spectators sue players, and both players and homeowners sue golf course owners for a number of reasons. Perhaps the most commonly litigated situation occurs when a player hits a ball that (presumably unintentionally) mistakes another player for the flag. The general rule is that participants in sports such as golf can only hold another player responsible for injuries that are intentionally, or in some cases, recklessly caused. Golfers (and usually spectators) are viewed as having “assumed the risks” inherent in the sport, which includes the risk of being hit by an errant stroke. However, the rules and customs of the game must be followed. Thus, if a golfer knows that another golfer or spectator is in the life of flight of his or her shot and fails to yell the customary “FORE”, then the golfer might be liable (when such a warning would have made a difference.) Some courts might also find liability if the golfer knew he or she had a tendency to mishit balls in a particular direction (where the victim happened to be standing). On the other hand, if the injured party also knew of this propensity and did not take precautions (such as ducking), his or her own lack of care might be used as a defense.
moderator: Can the injured player hold the course owner or operator responsible?
moderator: Have you had any funny experiences in the courtroom?
Moderator: Well, it looks like we have run out of time and run out of room for the answers! On behalf of the Emporia Gazette and our readers I would like to thank Tom for taking time to stop by and answer our questions. If you have any further questions you can contact Tom at his office at (620) 342-2499.