WHAT IS MARITAL PROPERTY AS OPPOSED TO NON-MARITAL PROPERTY?
In a divorce proceeding, there are two types of property: marital property and non-marital property. In some states, the two types of property are treated very differently. Other states may not automatically follow this distinction, but the distinction may still be persuasive to a court when determining how to divide property in a divorce.
What is Marital Property?
Marital property is typically all property that is acquired by a couple after their marriage. Upon filing for a divorce, each spouse will have an ownership interest in this property. The court will determine how much of the property each spouse owns during the divorce. Once the court issues a final order for divorce with property divisions, the overall property interest the parties had when the divorce was filed is extinguished.
Upon filing for divorce, the marital property belongs to each party and cannot be sold, destroyed, or disposed of without consent from each spouse. Parties are also prohibited from engaging in debt collection activities, such as attaching a lien to a home. Since both spouses have an interest in the marital property, any creditors seeking to collect on a debt obligation incurred after the divorce filing must wait until the court resolves the property division before acting.
What is Non-Marital Property?
Non-marital property is property that was purchased before the marriage by either party or was given to one spouse as a gift or inheritance after the marriage. Any income from the non-marital property is also treated as non-marital property. For example, if a spouse owned a rental property before the marriage and earns income from that property, that rental income will be considered non-marital property, as well as the rental property itself.
In Kansas and some other states, the spouse who does not own the non-marital property will acquire an interest in the property upon a divorce petition being filed. Even though it may seem that non-marital property belongs to a specific party, it is still protected from any encumbrances, such as liens, imposed after a divorce petition is filed. Because both parties have an interest in the non-marital property, it is subject to equitable distribution.
How is Property Divided during a divorce?
In states like Kansas that follow equitable distribution, the distinction between marital and non-marital property is less important than in states that follow community property division. This means that all property, not just marital property, is available for division in a divorce. However, the court will likely not ignore the marital/non-marital distinction entirely when determining how to divide property fairly. It is one of several factors a court will consider when dividing property. In Kansas, K.S.A. § 23-2802 outlines some of the factors the court should consider when dividing property. These factors include: (1) the age of the parties; (2) the length of the marriage; (3) the property owned; (4) the present and future earning capacities of each spouse; (5) whether the property is marital or non-marital; (6) the family obligations each party has; (7) any maintenance (alimony) obligations; (8) if either spouse has squandered any assets; and (9) the taxes involved with dividing property. The court is not limited to these factors – it may also consider any other facts to determine a just and reasonable division of the property.
How do I keep Non-Marital Property during a divorce?
In divorce proceedings, it is essential to remember that courts can order non-marital property to be transferred or sold. This means that property owned exclusively by one spouse before the marriage could be given to the other spouse by court order in a divorce. However, courts tend to acknowledge the inherent tension in this notion and will strive to reach an agreeable result for both parties. Generally, this agreement will require some trade-off. The court’s goal is to reach an equitable distribution, so the particular property being given to a certain spouse is less critical to the court than the monetary value of that specific property.
For example, if Spouse 1 were given a gift of jewelry before the marriage, it would be considered non-marital property. If Spouse 1 owed a debt, a debt collector would be free to have the jewelry levied by the local sheriff to satisfy the debt. However, if Spouse 1 files for divorce, Spouse 2 immediately gains an interest in the jewelry. Now, the court will determine which interest will be terminated when the divorce is finalized. Therefore, since the property belongs to both spouses until the court grants a decree, a debt collector cannot ignore Spouse 2’s interest and ask a sheriff to levy the property.
There is a chance that Spouse 1 may have a strong emotional tie to the jewelry, regardless of its monetary value. If the economic value is minimal, Spouse 1 will likely be able to keep the property. On the other hand, if the jewelry has significant monetary value, Spouse 1 will likely have to give up a large portion of marital property to Spouse 2 to compensate for that value. This may seem unfair to Spouse 1, since the jewelry was given to them as a gift before the marriage, but it is necessary to maintain equitable distribution among the parties.
Dividing property can be one of the most challenging parts of a divorce proceeding. Each side is likely to have non-marital property he or she desires to keep and believes should be his or hers alone. However, the law does not share the same opinion. The law requires all property to be divided fairly. Property division requires careful planning to ensure both an equitable distribution needed by law and a desired outcome for the spouse. This is why it is incredibly important to have experienced legal counsel to help negotiate and plan the property division.