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Marital Property Division

“In Hollywood, an equitable divorce settlement means each party getting fifty percent of the publicity.” -- Lauren Bacall

One of the core functions of marriage is providing a vessel into which the parties’ wealth may be pooled and protected. When a marriage faces dissolution, it is the job of the divorce court to ensure that the assets of the marriage -- the marital estate -- are equitably divided. The court also does the same for marital debts.

Composition of the Marital Estate

The question most frequently asked by clients about marital property division is some variation of this: “Is my spouse going to take Asset X, which I bought with my own money and is titled in my name?” This is a question of what constitutes marital property and what composes the marital estate.

Addressing the former, Kansas is quite schizophrenic when it comes to the question of marital property ownership. Prior to the filing of a petition for divorce, almost all personal property is considered to be separate property, which means that it is only owned by those who hold legal title to it and is not subject to any inchoate spousal ownership interest. Once a Petition for Divorce is filed, however, all assets owned by the parties becomes community property and become subject to an inchoate spousal ownership interest. (Real estate is always community property, even without the filing of a divorce petition.) The sum of the community property after the filing of the divorce petition constitutes the marital estate, which is then divided between the parties by the court.

To pare back the Legalese™, most of the tangible objects that a married individual might own belong to him or her to do with as he or she chooses during the marriage. The moment a divorce petition is filed, the married individual’s spouse gets an undefined ownership interest in all of the property the married individual owns, regardless of how it is titled. An easy way to conceptualize this is that each spouse gets in an interest in all of their partner’s clothing, and can request the court award them the literal shirt off their spouse’s back. 

What “Equitable” Is and Is Not

In light of the marital estate encompassing all of the property owned by both spouses, the prospect of “equitable” division can be fearsome and intimidating. It shares the same root with “equal”, after all, and a straight fifty-fifty partition of the marital estate can often create significant injustice. That is, however, not (necessarily) what “equitable” means in the context of marital property division. Rather, “equitable” means “just”, and is no more than a legal standard: The court’s division of marital property must be equitable in order to be valid, and as any other kind is unlawful and thus void.

In order to make an equitable division of the marital estate, the court is obligated to take into account the unique circumstances of each divorce which is before it. K.S.A. 23-2802(c), which governs what the court must consider in making a property division, commands that the following shall be considered in determining an equitable division:

            (1) The age of the parties;

            (2) the duration of the marriage;

            (3) the property owned by the parties;

            (4) their present and future earning capacities;

            (5) the time, source and manner of acquisition of property;

            (6) family ties and obligations;

            (7) the allowance of spousal support or lack thereof;

            (8) dissipation of assets;

            (9) the tax consequences of the property division upon the respective economic circumstances of the parties; and

            (10) such other factors as the court considers necessary to make a just and reasonable division of property.

This also does not mean that the court is barred from determining a half-and-half partition of the marital estate is equitable. It, rather, means that if the court were determine that such was the case, it would need to be able to substantiate that based upon the factors it is required to consider pursuant to K.S.A. 23-2802(c).

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