Kansas Division of Marital Assets and Debts
Kansas is an equitable division state. This means that all marital property is to be equitably divided between spouses.
Marital property is property which was acquired by one or both of the parties during the marriage. This can include a marital home, an automobile or an IRA which was earned or contributed to by one or both spouses during the marriage.
Equitable division does not always mean equal. It does, however, mean that each party should walk away with a combination of assets and debts which is “equitable” in value to the other spouse’s share. For example, if a marital estate has $100,000 in valuable property and $50,000 in debt, it would be equitable to give $50,000 in valuable property to each party as well as $25,000 each in debt; a true ½ division of assets and debts. Another equitable result could be one spouse taking $75,000 in valuable property and all $50,000 of the debt while the other spouse simply takes $25,000 in property with no debt. Assets were not divided equally and debts were not divided equally, but the end result was an equitable division netting both parties $25,000.
If one spouse is more financially able to take on greater debt than the other spouse and does so, the spouse taking the debt is essentially given credit for paying their spouse’s half share of the debt taken. In turn that spouse can receive more in valuable property to equalize the respective shares.
Marital property owned by one spouse prior to marriage is considered pre-marital property. Typically, any such asset will be given a pre-marital value as of the date of the parties’ marriage. For example, a 401k owned by one spouse may contain $20,000 as of date of marriage, but $100,000 as of the date of the filing of the divorce. The first $20,000 of that 401k is deemed pre-marital, and the remaining $80,000 earned during marriage would be subject to equitable division.
Other property received during the marriage could be considered non-marital property if for example, one party receives an inheritance from a relative who has passed. Most of the time that inheritance received will not be subject to equitable division. However, if one party takes their inheritance and uses it for marital purposes by agreement, it will be difficult to rewind the clock and claim a non-marital interest in the inheritance funds used for marital purposes.
The Kansas equitable division statute, KSA 23-2802 recognizes a number of factors to be considered in dividing the parties’ assets and debts.
These factors include but are not limited to:
- the age of the spouses
- the length of the marriage
- the property owned by the spouses
- the earning capacity of each spouse
- family obligations
- the manner in which the property was acquired
- whether spousal maintenance is ordered
- whether one spouse has dissipated assets
- the tax consequences of the division
- any other factor necessary
Different categories of marital property can be vast and can range from a large marital home or sizeable qualified retirement account to a piece of art in your living room or a 70” TV. Typically, spouses are able to mutually divide their personal belongings, household goods, and furnishings. This tends to include furniture, appliances, memorabilia, lawn equipment, bicycles, etc. In the event the parties can’t agree who will take a certain piece of property or what that property’s value will be, the court has the jurisdiction to value the property, to order that it be set aside to either spouse, or to sell the property and divide the proceeds as the court sees fit in order to achieve a fair, just, and equitable result.
Fault is not typically a factor to be considered in division of property. However, in determining value and division the Court can consider the actions of the spouses regarding the acquisition and control of property or debts in making its determination. For example, a court typically will not consider infidelity of either spouse as a major factor in dividing the property. However, if there is a significant amount of debt incurred by one party in the process of being infidelitous then said debt could be attributed solely to the bad acting party. For example, one spouse racks up a tremendous amount of credit card debt associated with flights, hotel stays, extravagant dinners, and jewelry in the course of having an affair.
The team at Fairbanks DeMarco has years of experience in helping divorce clients divide their marital and non-marital assets and debts. Call the team at Fairbanks DeMarco today for a consultation regarding your case.
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