While every judge has discretion to divide assets in a fair, just and equitable manner, generally, judges are guided by K.S.A. 23-2802 which requires that the courts consider a variety of factors to get to the just and equitable division of assets. The factors the court is required to consider include the following:
- The age of parties;
- The duration or lengthy of the marriage;
- The property owned by each of the parties;
- The parties’ respective present and future earning capacities;
- The time, source and manner of acquisition of the property (i.e. how the property was acquired);
- Each parties’ family ties and obligations;
- The allowance of maintenance, or lack thereof;
- The dissipation of assets, if any that occurs;
- The tax consequences of the property division on the respective economic circumstances of the parties; and
- Such other factors as the Court considers necessary to make an equitable division. {This is essentially the factor that allows a judge to apply his or her discretion to any circumstance during the marriage to get to a just and equitable division of assets.}
The statute also requires, and specifically notes that the court should not give more property to one spouse (or change the presumption of equal division of property) due to the greater dollar earnings of one party or the other during the marriage. This specifically acknowledges that the court values the services of one spouse as a home maker or serving in other capacities during the marriage.
In making a fair division of assets and debts, the Court is permitted to consider the entry value of property owned by either party prior to the marriage or acquired during the marriage by gift or inheritance from a party’s family member that remains in the marital estate (or if the proceeds can be traced to such a source of acquisition). Usually/generally, these items will be restored to the party who acquired the property prior to marriage or the party who obtained the property during the marriage. This value is set aside to the party, in addition to his/her equal share of marital assets. The entry value of gifted or inherited property will generally be restored to the party from whose family it was gifted or from the party whose family originated the money or asset. Any appreciation in the value of separate property during the marriage will be considered a marital asset and subject to division by the Court. Appreciation is generally calculated by taking the difference in the value of the asset on the date the property was received and then the value of the item or asset on the date of valuation by the Court. The definition of separate property is considered by the court, as well as the actual record owner of a given asset or record person who owes on a given liability. While this might be a consideration for the court in awarding the items, these considerations are irrelevant to the division of net worth. Specifically, this means that the mere fact that a house was purchased in one spouse’s name, for example, to obtain superior financing terms, will not influence the court’s determination that the house is marital property if it was purchased with marital funds, jointly by the parties, during the marriage.
How Does the Kansas Court Divides Debts?
Generally, all of the debts of the parties at the time of filing for a divorce are considered marital debts, without a consideration of who incurred the debts. There are certain exceptions or deviations from this that the court may be willing to consider. Some of examples of considerations surrounding debt acquisition may include the following:
- If one party has engaged in xtravagant spending near the date of separation, particularly if it was done without the knowledge or consent of the other party;
- The expenditure for necessities or to preserve marital assets made after separation;
When the court is determining an equitable division of assets and debts, often debts will be considered and often, the court will try to ensure that unsecured debts are paid from assets as part of the court’s overall determination of asset and debt division. If there are not sufficient assets to cover the parties' unsecured debts, the debts should then be divided between the parties in proportion to their gross incomes, as well as adjusted for maintenance paid or received during the pendency of the case. Child support received or paid should not be included in the proration of income as child support is for support of the parties’ children. In regard to secured debt, generally the court will determine that this debt should be paid by the party receiving the asset that secures the debt. The party with the responsibility for paying the secured debt should hold the other party harmless from any liability, for example, if a party is receiving the house, he or she will generally also receive the mortgage on the house and will refinance it into his or her own, separate name.
It is also important to note and be aware that the courts in Kansas will presume that debt incurred after the date of filing for the divorce by either party should be paid by the party incurring the debt. However, if such debt is considered a necessary living expense, it may be divided between the parties in proportions as the Court deems equitable. One factor in this determination will be whether or not temporary maintenance was paid or received. The parties will generally be expected to pay normal living expenses and payments from their regular incomes and not expend marital assets for living expenses in the separation period, prior to a divorce becoming final.
Do you have a case involving simple or complex asset and debt division in Kansas? Call our office today to schedule a consultation so we can discuss your financial situation and reasonable/likely outcomes from the division of your family’s assets and debts. Call Pingel Family Law at (816) 208-8130.