Division of Marital Assets in Divorce - Property Division

Neither Kansas nor Missouri are "community property" divorce states. A divorce court is not required to divide marital assets and debts equally. It must only divide them "equitably." What constitutes an "equitable" division? Certainly the court must at least state on the record that it is considering the statutorily required factors in making a division. Beyond that, however, the divorce court is vested with broad discretion in adjusting property rights, and its exercise of that discretion will not be overturned on appeal absent a "clear showing of abuse." Discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Does it matter how a piece of property or debt is titled?

Upon the filing of a divorce petition, all property and assets of the parties become "marital," i.e., subject to division and re-titling by the divorce court. That is to say, in a technical sense the judge has the authority to consider ALL the property held by the parties, jointly or separately held, no matter how titled.

What things must a court consider when dividing marital property?

All of the factors set forth in the divorce statute must be considered by the trial court. The trial court must consider all the property and all of the criteria set out for dividing property equitably. For example, the court must at least consider the role, if any, of one party receiving a disproportionate share of marital assets. It must consider the time, source and manner of the parties' acquisition of the property, as well as family ties and obligations. It must consider the age of the parties, the duration of the marriage, and the present and future earning capacities the parties. The court will also consider the dissipation of the assets of one of the parties as well as the tax consequences of the property division.

As a practical matter, however, courts have local guidelines that they employ to divide the parties' assets and liabilities. Although not required to do so, divorce judges will generally follow the recommended guidelines for division of property and debts, absent a compelling reason to do so. The typical approach is to divide all "marital" assets and debts equally. Any property acquired prior to the marriage is generally set aside to the party who brought the property into the marriage, with no corresponding offset to the other spouse. Likewise, any property received by one party during the marriage by way of gift or inheritance is set aside to the recipient.

This approach has its advantages and disadvantages. It certainly makes a judge's likely ruling more predictable. However, it also fails to take into consideration the specifics of any particular case. In order to get the judge to abandon the guidelines approach and more carefully consider the particular needs of your case, you need an experienced divorce attorney by your side, both to advise you as to the likelihood of success and to most effectively present your case the judge. Contact a family law lawyer now to represent you.