Property division is one of the most challenging financial aspects of a divorce as many factors have to be considered to divide the marital assets. The divorcing couple can come to an agreement on how they want to divide the marital assets or ask the court to make the decisions for them.
Even if you are not wealthy, marital assets division can be a complicated process. To guide you through the process of asset division, consider hiring an experienced family law attorney. However, it helps to have a solid understanding of how the division of assets works in Overland Park.
What are Marital Assets?
Marital assets, also referred to as marital property or community property, are the joint property or assets acquired by the spouses during the marriage. Similarly, all debts incurred during the marriage are the liability of both spouses. Examples of marital assets include cash in bank accounts, real estate, personal property, retirement accounts, and gifts.
Kansas Law Regarding Marital Property Division
Under Kansas law, marital property division is based on equitable distribution. This includes assets and liabilities. Equitable distribution means that marital assets are not necessarily equally divided, instead, the court determines what is a fair division.
Note that equitable division does not mean a physical division of property. The court may award a percentage of the total value of the marital assets. This means that it is unlikely to be a perfect 50/50 split between the spouses.
Several factors are considered when determining an equitable split of assets, including the financial contributions of each spouse to the marriage, the length of the marriage, the debt incurred during the marriage, the cost of living, and the earning power of each spouse.
If one of the spouses committed infidelity or was abusive to the other spouse, and that resulted in the divorce, then that could also factor into the court’s decision on how the marital assets will be divided, but is not strongly considered.
Difference Between Separate Property and Joint Property
A Kansas court needs to distinguish between separate and joint property to equitably divide the property. Any joint property belongs to both spouses, regardless of who is the legal owner of the property. Generally, but with some exceptions, as long as the property was acquired during their marriage, all those assets are considered joint property.
Separate property will not generally be subject to the property division. Generally, any assets that one spouse acquired before the marriage or after the divorce will not be considered in the property division. In some instances, assets acquired after the separation are also considered separate property.
In addition, any gifts or inheritance designated for one spouse are generally considered separate property. Any assets that are identified as separate property in a prenuptial or postnuptial agreement are also not subject to property division, if the agreement is valid.
Factors Considered in Property Division in Overland Park
Here are some of the most important factors considered in property division. Of course, every case has unique facts and circumstances, so a court can consider several other factors when deciding on asset division.
Length of the Marriage
The length of the marriage is a key factor in property division. Not only is the length of marriage relevant to the fair distribution of property, but long-term marriages also tend to have more complexity, such as the commingling of assets.
The court is likely to use a straightforward approach to property division for short-term marriages. However, for long-term marriage, the court will consider factors like the standard of living of both spouses and contributions to retirement accounts.
Future Earning Capacity
The court considers earning capacity an important factor in determining fair and just asset division. For example, if a spouse has a long-term health condition that reduces their earning potential, they might get a larger share of the assets. Of course, several other factors are considered when making the decision on asset division.
If one of the spouses had to make career sacrifices for the betterment of the family, and as a result is now unable to earn an income that can support their standard of living, the court can view this as a contribution to the marriage, and award the higher share of income-producing assets to this spouse.
Type of Divorce
There are two categories of divorce – uncontested and contested divorce. In an uncontested divorce, the divorcing couple agrees to all the terms of the divorce, so there is no need for a trial. A contested divorce is when there is disagreement between the couple.
Property division in an uncontested divorce is a significantly simpler process as there is no conflict. However, the court still needs to approve the settlement to ensure it meets the requirements of the law. In an uncontested divorce, if the parties do not reach a settment amongst themselves, then court intervention will be necessary to decide on the division. As Kansas has an equitable distribution law for property division, the court’s interpretation of the law can vary and therefore the outcome can be unpredictable.
Challenges of Marital Property Division
Property division is often a fiercely contested matter in divorce proceedings; here are a few reasons why it can be so challenging:
The value of each item in marital property needs to be assessed. This is often a point of contention between the divorcing spouses. The valuation of items such as fine art, real estate, or jewelry can be subjective, and agreeing on a value can be challenging.
In some family law cases, the divorcing couple owns financial assets, such as derivatives and hedge funds. Their complex structures and nonlinear payoffs make it challenging to establish value. For complicated matters, an expert opinion may be required to determine property valuation; however, the expert option can also be disputed by the divorcing couple.
If there is a deadlock, the parties can decide to jointly select an expert or accept a court-appointed expert. Both parties can also seek alternative dispute resolution like mediation.
Commingling of Assets
It is not always straightforward to distinguish between joint property and separate property, especially when there is a commingling of assets. For example, depositing separate funds into a joint bank account, or using separate funds for mortgage payments, can complicate matters.
Investments and business ventures can also result in commingling of assets. If one spouse used their separate funds for property renovation that resulted in increased property value, it can get complicated to determine the impact of the separate funds and the classification of assets. In some cases, an asset can be intentionally transmuted to separate property or vice versa. For example, a married couple could pool their assets into a single fund for them to use jointly.
Lack of Documentation
Lack of documentation can make it challenging to divide marital property. This is common with marriages that have lasted a long time, and the spouses are not good at keeping financial records. If they received inheritances and gifts with no record or documentation, tracking the source of these funds can be a time-consuming process.
How Can an Experienced Family Lawyer Help?
We have already established that property division is one of the most complex parts of a divorce. It can be overwhelming and frustrating, but it doesn’t have to be that way. An experienced family lawyer can navigate the legal proceedings of a divorce, including asset division.
Divorce proceedings are often emotional for the entire family. An attorney can help you make decisions with a level head and not get distracted by emotions. You want to make decisions based on reason and logic so you don’t end up regretting them.
You need to choose the right attorney for your case. It is a good starting point to consider lawyers who have experience in similar cases. They should be able to negotiate an out-of-court settlement, but if no agreement can be reached, they should be able to represent you in court and present a compelling case on your behalf.
An out-of-court settlement can control the disposition of your assets. It can also save you money by minimizing legal fees. In some cases, a lawyer can find a mediator to help resolve the asset division issues out of court.
Family Law Attorneys at The Bright Family Law Center
Divorce is painful enough without all the emotional distress and financial hardships like the division of marital assets. Allow us at the Bright Family Law Center to help you assert your legal rights in marital assets division.
Our lawyers are well-versed in Kansas law related to asset division and will guide you on the best legal course of action to secure a positive outcome. We also offer other services related to family law, including legal advice and representation in cases of divorce, child custody, child support, spousal support, and child relocation.
Contact our law firm to schedule an initial consultation with a divorce attorney at the Bright Family Law Center.