WILL ALL PROPERTY BE DIVIDED EQUALLY IN A DIVORCE?
Property division is one of the most complicated and often misunderstood part of a divorce. Unlike other aspects of divorce, like child support or child custody, property division differs significantly from state to state. It is important to understand what property is up for grabs and how the court determines the property division in every divorce. The following is an overview of the process.
Will All of a Couple’s Property Be Divided Equally or Not?
To put it simply: no. Whereas other states, notably California and Texas, divide property equally, Kansas is an “equitable distribution” state, meaning that the judge presiding over the divorce will make a fair and just division of all property. This does not mean it will be a 50/50 division, although this may happen in some divorces. After filing for divorce, each party will have an interest in all the property that was owned by either spouse. It is important to note that there is a difference between marital property and non-marital property. Marital property is property acquired during the marriage, and non-marital property is property owned pre-marriage and property that is inherited or received as a gift to solely one spouse. A court has the power to divide up property as the judge deems appropriate, but the difference between non-marital property and marital property may influence the determination of how to divide property. However, it is important to remember that both types of property are up for division. This means that property will not be divided equally in every divorce.
It is important to note that any property acquired after filing for divorce belongs solely to the spouse that comes into possession of it, and that property will not be up for division in the divorce proceedings.
Since It Is Not 50/50, How Will the Judge Ensure the Property Division Is Fair?
A judge is given wide discretion in determining how to fairly divide property in a divorce proceeding. However, Section 23-2802(c) provides ten factors the judge can use to make a fair, equitable division. These factors are briefly outlined below.
1. The Age of the Parties
To determine how to divide property, the judge will look at how old each party currently is and how old each party was upon entering the marriage. This may help recognize the importance of non-economic support by spouses. The courts have recognized that bringing home money is not the only way to support a marriage and facilitate getting property. The court will consider if one party has forgone education and employment for a long period of time when determining how to divide property.
2. How Long the Marriage Lasted
This factor also serves to reward, or at least not to punish, a spouse for homemaking rather than pursuing an education or a career. In incredibly long marriage, a spouse may have foregone any possibility of having a career in the future by maintaining the marital home and raising any children. In this situation, a spouse may be given a larger portion of property to help offset the inability of the spouse to earn income following the divorce.
3. Marital and Non-Marital Property Classifications
As mentioned previously, all property is up for grabs in a divorce, but the court will consider the marital property and non-marital property distinction when making its decision. A common example is if each spouse has their own vehicle. A spouse will generally want to keep their own vehicle, and unless the car has significant value that would make the division unfair, each spouse will typically get to retain his or her own vehicle. Even if the car has significant value, the car may be left to that spouse at the cost of other property.
4. Present and Future Earning Capacity for Each Spouse
The earning potential of each spouse is a strong consideration in determining how to divide property. This is to ensure that a spouse who sacrificed an education or a career is not placed in an unfair situation. However, if a non-working spouse has similar earning potential, the court may feel that a 50/50 division is adequate. To help support the non-working spouse until that spouse has obtained gainful employment, temporary spousal support or other means may be a better option than deviating from a 50/50 division.
5. Time, Source, and Manner by Which Property was Acquired
This factor ties into the marital property and non-marital property distinctions. However, even within those distinctions, how the property was obtained may help make the determination on how to fairly divide the property. Again, each spouse will generally want to retain his or her own vehicle, even if the vehicles were purchased during the marriage. Further, property that was given to solely one spouse as a gift may have personal and sentimental value to that spouse.
6. Family Ties to Property and Obligations Concerning Specific Property
This factor most often deals with non-marital property. Often, property owned before the marriage or inherited by a sole spouse will have strong personal value. The court takes these ties into consideration when determining how to divide property. Some common examples of these items are family heirlooms, such as pieces of jewelry that one spouse intends to give to a child in the future.
7. Any Spousal Support Awarded to Each Party
Property division and spousal support generally go together. The court wants to ensure that each spouse will be left in as good of a position as possible. This may allow one spouse to keep the marital home in exchange for making monetary payments to the other spouse for support.
8. Squandering of Any Assets by a Party
If any spouse has squandered assets to prevent the other spouse from receiving the property, the court will consider this when determining how to divide the remaining property. Generally, the punishment for squandering assets is to account for the lost assets in the squandering spouse’s share.
9. Tax Consequences That Will Result for Each Spouse
When determining how to divide property, the court may consider the tax consequences of any division. Generally, this means considering the property taxes on real estate and vehicles. The court will likely pursue a property division that does not result in negative tax consequences.
10. Any Other Relevant Factors
This final factor is not really a factor but rather, it serves as a reminder to the trial judge that there exists a lot of discretion when dividing property. The nine factors above are not exclusive and should not be considered a checklist. The factors a judge will consider in making a fair and reasonable property division really depend on the facts of each specific divorce.
Property division is a central part of every divorce proceeding. Dividing property takes time and knowledge of how individual judges handle property division can help ease the process. This insight and knowledge can only be gained through experience.
If you need the help of an experienced divorce and family law attorney in Johnson County, Kansas, feel free to contact the experienced attorneys at Roth Davies.