Division of Marital Assets in Divorce
Property Division Attorney in Olathe, KS
Kansas is not a "community property"
divorce state. 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 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. In a technical sense, that is to say that the judge
has the authority to consider
all the property held by the parties, jointly or separately held, no matter
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 following:
- Time, source, and manner of the acquisition of the property
- Family ties / obligations
- Age of each of the parties
- Duration of the marriage
- Present / future earning capacities of the parties
- Dissipation of the assets of one of the parties
- 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.
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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
Olathe divorce attorney by your side to advise you of your likelihood of success and to most effectively
present your case the judge. Contact an Olathe divorce lawyer from Martin
& Wallentine today to represent you.