Will All Property Be Divided Equally In A Divorce?
One of the most complicated and misunderstood parts of a divorce is property division. This is true because property division greatly differs from state to state, unlike child support, child custody, and even grounds for divorce. Understanding how the court determines property division and which property is up for grabs is vitally important in every divorce. Below is an overview of this process.
So, Will All Of A Couple’s Property Be Divided Equally Or Not?
The simple answer is: no. Unlike other states—most notably California and Texas—Kansas is an “equitable distribution” state. This means that the judge presiding over the divorce will make a fair and just division of all property. “Fair and just” does not automatically translate into 50/50 split, though this may be the case in some divorces. Instead, upon filing for divorce, each party will have an interest in all property owned by either spouse. There is a distinction between martial property and non-martial property, but a court is free to divide up all property as the judge sees fit. Martial property is property acquired during the marriage. Non-martial property is pre-marriage property brought into the marriage, as well as property that is inherited or received as a gift to one spouse alone. This difference in property is likely to be quite informative to a judge in determining how to divide property, but all property of both types is up for division upon filing for divorce (property acquired after filing for divorce belongs solely to the party that comes into possession of it). This means that all property will not be divided equally in every case.
Since It’s Not 50/50, How Will The Judge Ensure The Property Division Is Fair?
A judge is given wide latitude in determining how to fairly divide property. However, the judge is not painting on a blank canvas. Section 23-2802(c) provides several factors for the judge to consider in making a fair, equitable division. These 10 factors are outlined and briefly discussed below.
- The Age Of The Parties
The judge will look at how old each party currently is, as well as how old they were upon entering the marriage. A reoccurring theme in these factors is the recognition of non-economic support by spouses: bringing home money is not the only way to facilitate getting property and support a marriage. If one party has forgone education and employment for a long period, and is therefore unlikely to be able to fully enter the workforce, a court will consider this in dividing property.
- How Long The Marriage Lasted?
Again, this factor shows the desire to reward—or at the very least, not punish—a spouse for homemaking rather than pursuing education or a career. In exceptionally long marriages, a spouse may have foregone any possibility of having a career by maintaining the martial home and raising children. This may require that spouse to be given a larger share of property, to offset the inability of the spouse to earn following the divorce.
- Martial And Non-Martial Property Classifications
Though all property is up for grabs, the court will look to the martial/non-martial property distinction in deciding who gets what. For example, a spouse is likely to want to retain their own vehicle (if each spouse has their own), and unless the value of the car makes such a division unfair. Even then, the high-dollar car may be left to that spouse at the cost of other property.
- Present And Future Earning Capacity For Each Spouse
The earning potential of each spouse is a strong consideration in dividing property. Again, like age and the duration of the marriage, one strong consideration is ensuring a spouse that sacrificed education or employment isn’t placed in an extremely unfair situation. However, when a non-working spouse still has similar earning potential, the court may not feel the need to so deviate from a 50/50 split of the property. Instead, temporary spousal support or other means may be a better way to ensure the spouse is ready to obtain gainful employment.
- Time, Source, And Manner By Which Property Was Acquired
These factors will largely tie into the martial/non-martial divide. However, even within these categories, how property was obtained may help determine how to fairly divide these items. Automobiles are again a good example: each party is likely to want to retain his or her own vehicle, even if they were purchased during the marriage. Additionally, property that is given to individual spouses as gifts likely have personal and sentimental value to the owner.
- Family Ties To Property And Obligations Concerning Specific Property
This factor is perhaps best viewed as the logic behind non-martial property. Often, items that were owned before marriage or inherited individually will have strong personal value. The court will take these ties into consideration when dividing property. Common examples include passed-down pieces of jewelry or items that one spouse intends to give to a child in the future.
- Any Spousal Support Awarded To Each Party
As noted in regard to other factors, property division and spousal support go hand-in-hand. The court wants to ensure that each spouse is left in as good of a position as he or she can be. This may allow a spouse to keep the martial home in exchange for supporting the other spouse via monetary payments.
- Squandering Of Any Assets By A Party
If a spouse has burned through assets to prevent their ex-spouse from receiving the property, the court will consider this squandering in deciding how to award property. The general punishment for such actions is “accounting” for the lost assets in the squandering spouse’s share.
- Tax Consequences That Will Result For Each Spouse
The court can consider the taxes consequences of transferring property. This commonly includes property taxes on real estate and vehicles. If a similar result can be achieved without negative tax consequences, the court is likely to pursue that division of property over another.
- Any Other Relevant Factors
The final factor is really just a reminder to the trial judge that a lot of freedom is granted in dividing property. The list is not meant to be exclusive and should not be used as a “checklist.” Instead, what is fair and reasonable requires looking at the facts of each case. That is what this catchall points out.Property division is a central part to every divorce. Dividing property takes time and a knowledge of how individual judges handle property divisions. Only through experience can an attorney gain this insight and knowledge. If you need the help of an experienced divorce and family law attorney in Johnson County, Kansas feel free to contact our office.
Get your questions answered - call me for your free, 20-minute phone consultation (913) 451-9500.