When we think of hot-button issues in a divorce, the usual suspects are alimony or child custody. But dividing a couple's property can also be a big source of conflict, especially when it comes to things like determining who gets the marital home or even the family pet. If you're facing or in the midst of a divorce, it's important for you to understand how Kansas's divorce laws address the division of property and allocation of debts.
No, Kansas isn't a "community property" state. Rather, it's guided by the principle of "equitable distribution."
In community property states, judges typically divide a couple's property equally (although some states have a few exceptions). With equitable distribution, judges divide a couple's property and allocate their debts based on what's fair under the circumstances of each case—which doesn't necessarily mean a 50-50 split. (LaRue v LaRue, 216 Kan. 242 (Kan. 1975).)
At the core of equitable distribution is the concept that marriage is a partnership—so assets and debts should be divided when the partnership ends, taking into account each spouse's contribution. For example, if one spouse was primarily a homemaker and took care of the children, those activities have value. That spouse shouldn't get shortchanged on property division just because the other spouse was the primary breadwinner.
Typically, state laws on married couples' property rights make a distinction between marital property and separate property. Marital property includes most assets that spouses acquire during their marriage, while separate property includes assets that either spouse acquired before they married. The distinction is important because in the majority of states, judges will divide marital property in divorce, while the spouses will keep their own separate property.
For purposes of property rights during marriage, Kansas also distinguishes between marital and separate property. (Kan. Stat. § 23-2601) (2023).)
But as soon as one spouse files for divorce in Kansas, all property the couple owns—no matter when or how it was acquired, and regardless of the title on the property—is considered marital property, as long as the divorce is ultimately finalized. That means that the judge may divide all of the couple's assets, including inheritances and property owned before the marriage. (Kan. Stat. §§ 23-2801, 2802(a) (2023).)
As part of the divorce process, your and your spouse will typically exchange information about your finances, including income, outstanding debts, and the present value of your assets. That's why it pays to prepare your financial information as soon as possible.
In many cases, determining the value of an asset is fairly straightforward, such as obtaining the balances on bank accounts. With certain types of property (like a house, family business, or defined-benefit pensions), you'll probably need help from financial experts such as appraisers, forensic accountants, or actuaries.
If you and your spouse can't agree on the value of any particular asset, even after getting expert help, the judge may have to decide for you, based on the evidence you both provide.
Of course, most assets change in value over time. So the date for determining the value of an asset can make a difference in the property division. Unlike many other states, Kansas law doesn't require judges to use a particular date for the valuation of couple's assets. Instead, judges may choose to value assets as of:
Also, when judges are deciding how to divide the property in divorce, they may consider evidence about changes in the value of certain assets both before and after the valuation date. (Kan. Stat. § 23-2802(b) (2023); In re Marriage of Cray, 254 Kan. 376 (Kan. 1994).).)
Of course, if you can reach an agreement with your spouse on how to divide your property (more on that below), you can choose any date for setting a value on your assets and debts.
You and your spouse always have the option of agreeing on how you'll split up your property when you get divorced, rather than having a judge decide for you. In fact, Kansas courts strongly encourage divorcing couples to settle all their marital issues before a trial is necessary, and they provide the opportunity to do that during the divorce process. You'll need to submit your agreement to the court for approval, but the judge will almost always approve it as long as the agreement appears to be fair.
Also, if you and your spouse reach a complete marital settlement agreement before you file your divorce papers—covering all the legal issues involved in ending your marriage—you'll be able to file for an uncontested divorce in Kansas. Uncontested divorces are much cheaper, quicker, and easier than traditional contested divorces. Many couples are able to navigate the uncontested divorce process without hiring a lawyer, either entirely DIY or by using an inexpensive online divorce service to streamline the process.
You can also agree before you get married (by signing a prenuptial agreement) on how you'll divide your property if you later decide to divorce. This takes on added significance in Kansas, because the property either spouse owns before marriage is fair game for distribution in divorce.
Kansas law requires judges to consider the following circumstances when they're deciding how to divide a couple's property:
(Kan. Stat. § 23-2802(c) (2023).)
Because judges will consider the timing, source, and manner of an asset's acquisition, a judge could potentially decide that a spouse should keep an asset that would be treated as separate property in other states—such as an inheritance or property that the spouse owned before the marriage. In one Kansas case, for example, an appellate court upheld a judge's decision to award the husband a bank account that was an inheritance from his father. Even though the account was subject to distribution in the divorce, the court held that the judge's decision wasn't arbitrary or unreasonable in light of the overall property division, which included an equal split of the husband's retirement accounts and the value of the couple's various properties. (In re the Marriage of Hair, 193 P.3d 504 (Kan. Ct. App. 2008).)
The bottom line is that just because judges may divide any asset either spouse owns, that doesn't necessarily mean they will do so.
Kansas law doesn't specify who should get to keep the family home after divorce. As such, the house is just another asset subject to equitable distribution.
If you and your spouse can't agree on what to do with your house, the judge will make a decision based on the specific circumstances in your case. If a house is awarded to one spouse, the judge will typically award different assets—such as retirement accounts—to the other spouse to arrive at a fair distribution of all the couple's property.
Of course, many couples don't own enough other assets to balance out the value of a house awarded to one spouse. So the judge may simply order them to sell the house and divide the proceeds. If you don't want a forced sale, you'd be wise to work out an agreement with your spouse after exploring the other options for dealing with the family home.
It can be complicated to split retirement accounts in divorce. If you or your spouse has an interest in a defined-benefit pension, you'll almost invariably need expert help to figure out the present value of that interest. Also, when you're dividing any employment-retirement plans, including a 401(k) account, you'll need an expert to prepare a special order (known as a qualified domestic relations order, or QDRO) to give to the plan administrator.
The issue of who gets the pet in the divorce can be an emotional one. Even though they often feel like members of the family, the law treats all animals as property. As such, they're typically subject to distribution in divorce just like a truck or a couch.
A few states have passed laws allowing judges to award joint ownership of a pet or to consider the animal's well-being when deciding which spouse will keep it. That's not true in Kansas (at least not yet). Still, when empathetic judges are dealing with disputes over pets as part of the property division, they might consider the impact of their decision on members of the family—especially the children.
If you're having trouble agreeing with your spouse about how to divide your property, you can try mediation. The cost of divorce mediation varies, but you and your spouse can split the mediator's fee. And a successful mediation will be considerably less expensive than going to trial (with attorneys' fees for both of you).
But if you still aren't able to reach a settlement agreement, even with a mediator's help, you should at least speak with a lawyer. An experienced family law attorney can evaluate your case and lay out your options going forward. Having a lawyer on your side is especially critical if you're experiencing domestic violence in your marriage or if you suspect that your spouse is hiding assets.
You should know that the question of whether you need a divorce lawyer isn't always an all-or-nothing choice. Sometimes, you can hire an attorney on an as-needed or consulting basis to handle certain tasks in your divorce, such as drafting or reviewing your settlement agreement, to make sure you haven't missed anything important or inadvertently given up important rights.