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 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 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 Johnson County divorce lawyer by your side to advise you of your likelihood of success and to most effectively present your case the judge.
Contact an Johnson County divorce lawyer from Martin & Wallentine today to represent you.
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