Before a judge can grant an order that ends your marriage, you need to either reach an agreement on the key issues involved in your marriage or have the court decide them for you. One of the biggest sticking points between spouses in divorce negotiations is who gets what property and how much they receive. Each spouse may feel like they deserve more of the marital property, and many are willing to fight for it. Distribution of marital assets is one of the chief reasons why a divorce can be high-conflict and contested. Until you are able to agree on the division of assets, you can assume that your divorce could be contested.
If you are at the beginning of a divorce in Kansas, or you are contemplating one, it is essential that you get legal help right away. The attorneys at the Colgan Law Firm, LLC will work closely with you throughout the process to help minimize your burden and fight for your rights.
What Is Marital Property in Kansas?
The category of marital property that is subject to division is very broad in Kansas. Certainly, any money that either spouse earned during the course of the marriage would be subject to division. Not only does this include income, but it can also include the increase in the value of Investments and any retirement benefits that are earned. It generally does not include an inheritance that one spouse received from their family. Nonetheless, you can generally assume that if it was money that came into a couple’s possession at any time during the marriage through many possible ways, it would be subject to division.
How Equitable Distribution Works
Equity is another way to say that the division of the property must be fair. What is fair in your case depends on the facts and circumstances of your own individual and unique situation. There is no one ready and automatic answer for every divorce case. You would need to present your best arguments as to why you deserve what you are seeking if your case goes to court.
K.S.A. § 23-2802 is the Kansas law that sets forth the factors that a court may consider when dividing marital property. These factors can include:
- Ages of the parties
- Duration of the marriage
- Property owned by the parties
- Present and future earnings
- Time, source, and manner of acquisition of property
- Family ties and obligations
- Allowance or disallowance of maintenance
- Dissipation of assets
- Tax consequences of the division
- Any other factors the court considers relevant and/or necessary to make an equitable division
Fault is one thing that is generally not a factor in equitable distribution. In the typical case, a spouse may have committed adultery, but it generally does not come into play for equitable distribution of assets. The only way that it may impact how marital property is divided is if one spouse used assets to finance an affair.
There is no set rule as to how a judge would apply these factors. Each judge would have the discretion and leeway to wait for the factors however they feel is correct. Thus, if your divorce is contested, you may not have any control or predictability of the end result. All you can do is present your best arguments through your divorce lawyer and hope that the judge rules in your favor. It is usually in your interest to have an uncontested divorce after you have agreed on a resolution of property distribution.
Equitable Distribution Is What Is Fair, But Not Always Equal
Remember that equitable division does not automatically mean that the assets are divided 50/50. Equitable division is not the same thing as community property, which would be more likely to lead to such a result. Therefore, you need to be realistic in what you are expecting in settlement negotiations. The other spouse would certainly have a right to some of the marital property, even if you were the one who earned most of it. In the end, equitable distribution tries to do what is right, even if it means that one spouse gets more property than the other.
Valuation Issues in Equitable Distribution
Not all issues of property evaluation are cut-and-dry. For example, the marital property can include an illiquid asset, such as a business, which can be challenging to value. Each spouse may have a different interest in how property is valued because it would impact their bottom line going forward. In addition, when the marital property includes the appreciation of an asset that was acquired before the marriage, there may be questions about how much the value has gone up against the purchase price of the asset.
Your divorce may require forensic accountants if there is a significant amount of property or questions about valuation. Be prepared for significant disagreements when a business is involved, which could lead to a contested divorce.
How Spouses Reach an Agreement for Equitable Distribution
Typically, you would negotiate a separation agreement that addresses how all of the assets are to be divided between you and your spouse. You may not begin on the same page, and it may look like your divorce could become a high-conflict one. However, over time and through extensive negotiations, you could come closer to an agreement.
There are many sticking points when you are trying to negotiate an agreement for equitable division of property, which can include:
- The family home: Both spouses may wish to remain in the family home, and they would need to decide which one gets to stay and how to buy out the other’s interest.
- Taxes: Some property carries tax obligations with it because it has appreciated in value during the course of the marriage. The spouse who gets to keep the property must pay the taxes, and they need to be compensated for it in other areas.
- Retirement accounts and pensions: These accounts are subject to division, but the spouse who has accumulated the assets or pension will fight for more than their share, claiming that they were the one who worked to earn the money.
- Alimony considerations: Spousal support and equitable division of property are distinct issues, but they often go hand in hand when the two spouses are trying to negotiate a separation agreement. While one spouse may not qualify for alimony, they may try to get more than half the assets. It is not uncommon for spouses to engage in trade-offs when negotiating the two.
How a Lawyer Can Help with Equitable Distribution of Assets
If you try to negotiate a separation agreement with your spouse on your own, you may make a mistake that can complicate your financial condition, or emotions could spiral out of control and lead to a high-conflict divorce. You should always negotiate with the help of a divorce lawyer who can handle all the details for you. An attorney can speak directly to the other spouse’s lawyer to exchange proposals and counter-proposals. While you would certainly work with your lawyer on strategy, you would be removed from the day-to-day stress that could make a typical situation worse. Hiring a divorce lawyer can reduce the chances of a contested divorce.
Contact a Kansas Family Law Attorney Today
You should get help from an experienced divorce lawyer early in the process so you can both formulate a strategy and work towards the best possible outcome of your case. The dedicated family law attorneys at Colgan Law Firm LLC Have Decades of experience in helping Kansas residents work through their divorce issues. We represent clients in Wyandotte, Johnson, and Leavenworth Counties and in the surrounding areas. You can speak with an attorney today by scheduling an initial consultation. We can be reached through our website or by calling us at 913-721-9999.