Laws governing division of marital property in divorce are different in every state. Kansas law requires that a division be equitable, meaning that it's fair--but that doesn't necessarily mean it has to be equal. Some couples are able to agree on their own about how to divide property, while others use the help of attorneys or a mediator to negotiate a settlement.
Whether you handle your own property division or a court handles it for you, there are three crucial steps to the process:
- determine whether the property (or debt) is marital or separate
- agree on a value for marital property, and
- decide how to divide the property.
Marital Property and Separate Property
Marital property includes most assets and debts a couple acquires during marriage. Property is separate if a spouse owned it before marriage or acquired it during marriage by gift or inheritance. Separate property also includes items purchased with or exchanged for separate property and earnings on separate property.
A spouse can convert separate property into marital property by changing title from individual to joint ownership during the marriage, in which case a court would presume that the spouse intended to make a gift of the property to the marriage, and will treat the property as jointly owned. Marital and separate property can also be mixed together—sometimes called "commingling." Some couples combine their separate assets intentionally; others do so without thinking about it. For example, one spouse's premarital bank account can become marital property if the other spouse makes deposits to it; or a house owned by one spouse alone can become marital property--in whole or in part--if both spouses pay the mortgage and other expenses. If the spouses aren’t able to decide what belongs to whom, the judge will have to decide whether any or all of the commingled property was a gift to the marriage or whether the original owner should be reimbursed in whole or in part. These situations can be very complicated and may require the assistance of an attorney.
Learn more about Divorce in Kansas.
After determining which property is marital property, the couple, or the court, will assign a monetary value to each item so that it's clear how much value each spouse is getting in a proposed division. Couples who need help determining the value of certain property may hire professional appraisers. Some financial assets, such as retirement accounts, can be difficult to evaluate, and you may end up needing the assistance of a financial professional, such as a C.P.A. or an actuary.
Dividing the Property
Couples who don’t manage to resolve property issues will end up going to court to ask for a decision from an arbitrator or a judge. A judge dividing property in a Kansas divorce will consider all relevant factors, including the following:
- each spouse's age
- the length of the marriage
- each spouse's present and future earning capacity
- each spouse's separate property
- how and when the spouses acquired property
- each spouse's family responsibilities or ties
- whether a spouse is receiving maintenance (alimony)
- either spouse's dissipation of assets, and
- any tax consequences of the property division.
Spouses can divide assets by assigning certain items to each spouse, possibly with an equalizing payment if one spouse gets substantially more than the other, or by selling property and dividing the proceeds. They can also agree to continue to own property together. Most people don't do this, because they don't want to continue dealing with each other about financial issues, but some couples do agree, for example, to keep the family home until children are out of school. Others may keep investment property in hopes it will increase in value.
The couple must also assign all debt accrued during the marriage, including mortgages, car loans and credit card debts, to one of the spouses.