This page contains information about some of the types of cases and matters we handle. Each client’s case is unique and requires specific advice, counsel and guidance from an attorney. However, the information contained on this page is designed to give you a brief overview of some of the areas in which our clients most often need help.
Please click on one of the links below to learn more about a specific topic.
Divorce
A divorce action is initiated by filing a Petition with the District Court. A Temporary Order is generally filed with the Petition and will govern the case until the case is concluded or the Temporary Order is modified. After the Petition and Temporary Order are filed and served on the other party, he or she will have twenty days to file a response, or Answer, with the Court.
In many cases, we must conduct what is known as discovery to ascertain information about the case. Discovery generally takes the form of written questions to the other party, requests for production of documents, depositions and subpoenas. These measures are aimed at determining the fitness of the other party as a parent, the value of the marital assets and debts, and any and all other matters relevant to the divorce action.
After discovery is completed (if it is necessary), the case will be concluded in one of two ways: through a settlement or with a trial before a judge of the District Court. We attempt to settle all cases, but we also understand that litigation is sometimes necessary if the other party has taken an unreasonable position. In the event your case leads to a trial, our attorneys are experienced litigators who will aggressively advocate your position in court.
In Kansas, most divorces are granted on “no fault” grounds such as incompatibility. This means that virtually everyone is entitled to a divorce if they seek it, and spouses are generally not penalized for their behavior during the marriage. In addition to the actual divorce, several other matters are adjudicated within a divorce action, including: child custody, child residency, child support, spousal maintenance (alimony), and property and debt division. Our attorneys have the skill and experience to assist you with these and other matters relevant to your divorce action.
For a general overview of the divorce process or answers to some frequently asked questions about divorce, please visit our Resources page.
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High Asset Divorce
Divorces that involve a high asset marital estate can be especially complex given the complicated valuation issues and tax ramifications. Our attorneys have the experience, knowledge and skill to analyze intricate financial documents and utilize financial experts to present an otherwise confusing case in an intelligible manner. In the past, the attorneys of Cleary, Wagle, Soderberg & West have represented clients involved in divorce actions concerning the valuation and division of medical practices, dental practices, farms, ranches, banks, law practices and other family owned businesses of all kinds.
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Uncontested Divorce or Annulment
The divorce or annulment process is drastically simplified when a couple has determined that they need to separate but have decided to proceed amicably and can agree upon the relevant issues involved such as child custody, child support, spousal maintenance (alimony), and the property and debt division. In such cases, our role is largely confined to offering limited advice, ensuring that the parties comply with relevant Kansas law, and drafting the appropriate legal documents. We offer flat-fee rates for uncontested divorce or annulment actions and can complete your case in an economical and efficient manner.
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Collaborative Law
The essence of collaborative law is the shared belief of the participants that it is in the best interests of the parties and their families to commit themselves to resolving their differences with minimal conflict. The parties adopt a conflict resolution process that does not rely on court imposed resolution. The process does rely, however, on an atmosphere of honesty, cooperation, integrity and professionalism.
One of the major goals in adopting the collaborative law process is to maximize settlement options for the benefits of all parties and to minimize, if not eliminate, the negative economic, social and emotional consequences of protracted litigation for the participants and their families. Please visit www.collaborativelaw.com for further information.
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Legal Separation
Some clients may prefer a legal separation, also known as separate maintenance, rather than a divorce. A legal separation may be the preferred course of action for clients with unique financial circumstances. Other clients may favor a legal separation if they believe there is a chance for reconciliation or they are morally opposed to divorce.
A legal separation action is very similar to a divorce action in that issues related to child custody, child residency, child support, spousal maintenance (alimony), and property and debt division are all adjudicated through a legal separation. The only tangible difference between a divorce and legal separation is that at the conclusion of the case, the parties remain legally married to one another.
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Annulment
Kansas law provides that some marriages can be annulled. Typically, a marriage that can be annulled is of a short duration. Further, there must be some basis for the annulment such as a mistaken belief as to a material fact relevant to the marriage.
If a marriage is annulled, Kansas law treats the marriage as never having existed. However, for most practical purposes, an annulment accomplishes the same results as those achieved through a divorce action. The major difference is that the party who receives an annulment can comfortably state that he or she was never legally married.
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Paternity
A client who is unmarried and is the mother or father of a child will likely wish to pursue a paternity action. Such cases are governed by the Kansas Parentage Act and are initiated by filing a Petition with the District Court requesting that either the Petitioner (the person filing the Petition) or the Respondent (the other party) be declared to be the father of the child or children at issue. In making this determination, the Court may order that genetic testing be performed to determine whether a party is truly the father of a child. If he is conclusively determined to be the father, the Court will enter an order declaring him to be the legal parent of the child at issue.
A paternity action can also be used as the vehicle to establish a child support obligation for one of the parties. Further, matters relating to child custody, child residency and visitation can be adjudicated within a paternity action. Our attorneys have the experience and knowledge to assist you in either prosecuting a paternity case on behalf of your child, or defending against an unjust result if you are responding to a paternity action.
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Modification of Child Custody
Oftentimes a client may desire a change of custody, or more specifically, a modification of residency or visitation. Such a modification is appropriate in cases where the child’s best interests are no longer served by the status quo custody arrangement. In some cases, the party desiring a change in custody must show a material change in circumstances which make the current custody arrangement unreasonable. In other cases, the only relevant analysis is what custody arrangement is in the best interests of the child. However, in all cases the best interests of the minor children guide the Court’s decision as to whether a change in custody is warranted by the unique facts of each dispute.
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Modification of Child Support
In most cases where a child’s parents are separated, one parent provides the other parent with monthly child support payments. The amount of child support is dictated by the Kansas Child Support Guidelines. When there has been a material change in circumstances, the Guidelines empower the District Court to modify child support. A material change in circumstances for child support purposes can take many forms, but are most commonly seen after a modification of child custody, increase or decrease in a party’s income, or the mere passage of time. If a material change in circumstances can be shown, the Court will set a new child support obligation consistent with the Guidelines.
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Child in Need of Care
The Revised Kansas Code for the Care of Children was enacted by the Kansas Legislature as a means to protect the safety and welfare of children. Although parents are always presumed to act in their child’s best interests, the Code was designed to protect children who are not adequately cared for by absent, neglectful or abusive parents. If a parent is not properly caring for his or her child, a Petition can be filed in the District Court alleging that such child is a “child in need of care”. Although the Petition is usually filed by the Department of Social and Rehabilitation Services (SRS), a private case may also be filed by any interested party, usually a family member.
After the Petition is filed, the Court must determine if the child is in fact a child in need of care. If the Court determines that a child is a child in need of care by clear and convincing evidence, then the Court has several options at its disposal to protect the child, including returning the child to the parents with conditions; placing the child in a relative’s home; or placing the child with a shelter facility. The Court also has the power to terminate parental rights if it is found by clear and convincing evidence that the parent is unfit to properly care for the child and the parent’s conduct or condition is unlikely to change in the foreseeable future.
A child in need of care proceeding has the potential to seriously and permanently impact all of the parties involved. Our attorneys have experience in both representing interested family members who are concerned for a child’s safety, and parents who wish to protect their parental rights.
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Adoption
The adoption process involves the transfer of parental rights and custody to another single adult or a husband and wife. The parental rights of the transferring parent are extinguished and terminated either before or at the time of the adoption. This relinquishment of parental rights can either be voluntary or involuntary. Voluntary adoptions most often take the form of an “agency adoption” whereby a mother voluntary relinquishes her parental rights to a third party. Other methods of adoption usually entail a child in need of care action or a stepparent adoption. Our firm does not handle agency adoptions, but we do have ample experience in handling stepparent adoptions and adoptions that follow a termination of parental rights through a child in need of care case.
A parent’s parental rights can be terminated through child in need care proceedings, and oftentimes an adoption follows. Courts generally prefer that a child be placed with a relative if the child’s parents’ rights have been terminated. We can assist a concerned relative of a child through both the child in need of care process and the subsequent adoption.
The Kansas Legislature created a special procedure for stepparent adoption which often does not require the need for a child in need of care action. A stepparent adoption can be accomplished if the other biological parent consents to the adoption, the other biological parent’s consent is found to be unnecessary pursuant to Kansas law, or the other biological parent’s parental rights have previously been terminated. Generally, a biological parent’s consent is not necessary if he has failed to assume the duties of a parent for two or more years. Our firm can provide advice and counsel for those interested in a stepparent adoption, whether it be voluntary or involuntary. We also have experience in defending fathers who wish to guard against a stepparent adoption.
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Guardianship and Conservatorship
A mother and father are the natural guardians of a child. However, if the child’s biological parents have died, their parental rights have been severed, or they have been found to be unfit, the District Court is empowered to appoint a successor guardian to care for the child. In making a determination as to who should be appointed as guardian, the Court will give preference to the child’s relatives and ultimately make a decision based on what is in the child’s best interests.
While a guardian is entrusted to care for the child’s well-being, personal care, and education, a conservator may need to be appointed to care for the child’s property. A conservator is most needed if a child’s parents have died without creating a trust and the child has inherited property. The person appointed as conservator is often the same person that is appointed as guardian. Complicated guardianship and conservatorship proceedings can often be avoided by implementing an estate plan.
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Estate Planning (Wills & Trusts)
All Kansas residents should formulate and execute an estate plan, whether it be simple or complex. Without a proper estate plan in place, your property will pass according to the laws of intestate succession which will often create a result that does not suit your wishes.
A will is probably the estate planning document with which you are most familiar. A will directs how your property is to be distributed upon your death and prevents your property from being distributed under the laws of intestate succession. A will is also used to designate a guardian and conservator for any children you may have.
Trusts are also very useful estate planning tools. A trust is an arrangement whereby property is transferred into “trust” with another person, persons, or entity managing the trust property for the benefit of a third party, the beneficiary or beneficiaries. The trustee is then required to hold the trust property for the beneficiaries of the trust and distribute that property to the beneficiaries according to the terms of the trust. Trusts, like wills, are very flexible documents that can be crafted to meet a client's specific needs.
A complete estate plan will likely also include the execution of several other estate planning documents such as: a power of attorney for financial decisions, a power of attorney for healthcare decisions, a living will, and potentially transfer on death and pay on death designations. Our firm offers estate planning services for a flat-fee and we will work closely with you to devise a plan that meets your needs and carries out your wishes.
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Misdemeanor and Felony Criminal Defense
Whether a defendant is charged with a misdemeanor or a felony, a criminal conviction can significantly alter the course of a person’s life. Law enforcement is required to abide by both the United States and Kansas Constitutions in investigating a crime and making an arrest. Oftentimes, a defendant’s constitutional rights are violated during such an investigation or arrest. It is therefore imperative that you contact an attorney immediately if you are charged with a crime, regardless of the severity.
The criminal process begins with an arrest and ends with either sentencing or dismissal of the case. The process in between the arrest and the conclusion of the case can be confusing. Therefore, it is important that you have counsel to assist you with the defense of your case at all stages of a criminal case.
Michael Cleary has assisted defendants with their criminal cases for decades. Michael understands how the prosecution operates, having previously served as both a city and county prosecutor. He can offer you competent and effective representation in defending your rights if you are charged with a crime.
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Protection from Abuse and Protection from Stalking
In Kansas, people often obtain restraining orders because they have been abused or stalked. The Protection from Abuse and Protection from Stalking Acts are used as the vehicle to provide people with protection from others who pose a threat to the safety or well-being of the person seeking the restraining order. The restraining order process can also, however, be used frivolously by those seeking to simply annoy or frustrate a person with whom they are upset. Our attorneys have experience in both assisting clients with obtaining a restraining order and assisting in the defense against an improperly filed restraining order.
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Driving Under the Influence
The consequences of a conviction for driving under the influence can be severe and life-altering. A person convicted of DUI can face jail time, fines, license restrictions, and an assortment of other punishments. In order to effectively mitigate the potential consequences of a DUI conviction, a defendant needs competent legal advice from an experienced attorney. Michael Cleary has represented hundreds of clients facing DUI charges and understands how to effectively represent anyone who has the unfortunate task of handling a DUI charge.
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