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Division of Premarital Assets in Divorce

Premarital Assets may be divided in a Divorce action

In divorce actions, it is common for judges and attorneys to use the terms to “pre-marital” property and “non-marital” property to refer to property that was brought into the marriage (and therefore not subject to marital division) or property that was acquired during the marriage, such as an inheritance, that is not subject to marital division.

These terms, however, are misnomers, technically speaking.  Under Kansas law, ALL assets and debts of the husband and wife are subject to division, according to the judgement of the judge presiding over the divorce case.

Under Kansas law, "[a]ll property owned by married persons . . . whether held

individually or by the spouses in some form of co-ownership . . . shall become marital

property at the time of commencement by one spouse against the other of an action in

which a final decree is entered for divorce." K.S.A. 2017 Supp. 23-2801(a). Further "a

[divorce] decree . . . shall divide the real and personal property of the parties . . . whether

owned by either spouse prior to marriage, acquired by either spouse in the spouse's own

right after marriage or acquired by the spouses' joint efforts." (Emphasis added.) K.S.A.

2017 Supp. 23-2802(a).

A recent case in the Kansas Court of Appeals affirmed this legal principle.  In re Marriage of Wells, published on July 13, 2018, ( Case No. 118,084), Husband appealed the divorce court’s judgment that awarded his ex-wife a portion his pre-marital retirement account.  On appeal, he argued that the judge erred in so doing on the sole basis that the account was acquired before the parties were married.  The Kansas Court of Appeals affirmed the divorce court’s division of the “pre-marital” account on the grounds stated above.

While it is true that most of the time, i.e., in the vast majority of cases, divorce courts will set aside “pre-marital” property to the party that brought the property into the marriage, divorce courts are not required to do so.  It takes an experienced divorce attorney to assess your case and to know what the particular judge in your case will likely do.  Consult an experienced divorce lawyer if you have significant assets that could be put at risk by a divorce case.