It is a common misconception in the United States that divorce means losing half of everything you own to your ex. Simply put, this is not true as every state has unique laws pertaining to property division in divorce. While you can generally expect to divide some of your assets with your spouse in divorce, there are differences among the various types of assets, including whether they qualify for division.
In addition, state laws play a significant role in property division during divorce. Some states follow strict community property laws that demand equal 50/50 division of marital property. Other states, including Kansas, follow equitable distribution laws that strive for fairness over strict calculations.
Equitable Distribution in Kansas
The equitable distribution statute in Kansas exists to ensure the fairest property division possible within each divorce case. The statute recognizes that the legal process of divorce is not just the formal process of ending a marriage. It is also the process of determining property ownership rights and transferring them to each of the divorcing spouses.
As the name suggests, equitable distribution strives for an equitable division of marital assets. It is important to understand that equitable does not always mean equal. When the court decides property division in a Wichita, KS divorce case, the judge will examine numerous factors to determine the fairest possible division of the divorcing couple’s marital property.
How Equitable Distribution Begins
The first phase of the process is determining which assets qualify as marital property. In any divorce case, two main types of property come into play: separate property and marital property. Separate property belongs to only one spouse and typically includes gifts they have received, inheritance from other family members, and assets they owned before getting married. However, in some cases, separate property may transmute to marital property.
The concept of transmutation typically becomes relevant when one spouse’s separate property appreciates in value due to the contributions of the other spouse during their marriage. For example, consider a case where one spouse owned a home before marrying, and the other spouse contributed toward renovations that improved the home’s property value. The scenario would likely qualify the property for transmutation if the property value increased by a substantial margin.
Marital property includes any and all assets and real property the couple obtained while married. This often includes their marital home if purchased together while married, shared vehicles, income earned by both spouses during the marriage, and other assets obtained during the course of the marriage.
How Does a Judge Divide Marital Property?
Once the court has made the necessary distinctions between each spouse’s separate property and shared marital property, the equitable distribution process begins in earnest. As previously stated, the judge will strive for the most equitable, but not necessarily an equal, distribution of marital assets. To reach their decision, the judge will examine:
- Each spouse’s current income. If one spouse has a higher-paying career than the other, the lower-earning spouse will likely receive a larger amount of marital property in an equitable distribution determination.
- Each spouse’s future earning potential. If one spouse is capable of earning much more than the other, the spouse with less earning potential will likely receive a greater percentage of the couple’s marital property.
- The amount of separate property owned by each spouse. Equitable distribution strives for the fairest possible division of property. If one spouse owns vastly more separate property than the other, the court will likely award the other spouse a greater share of marital property to account for this disparity.
- The child custody rights awarded to each divorcing parent. If one parent assumes majority custody over their children, the court may be more inclined to let the custodial parent keep the marital home while awarding other property and assets to the noncustodial parent.
- Any preexisting prenuptial contracts the couple may have in place. The court must determine if a prenuptial contract is enforceable before allowing the terms of the contract to take effect.
- Each spouse’s behavior prior to and during divorce proceedings. For example, if one spouse intentionally wasted marital assets, they will likely receive a reduced percentage of the marital property as a result.
Equitable distribution proceedings can be extraordinarily complex, and it is typically in the best interest of both divorcing spouses to explore alternative dispute resolution. Options like mediation allow spouses to negotiate property division privately rather than leave the final decision in the hands of a judge.
The Importance of Financial Disclosure in Divorce
It is crucial to be completely honest with financial disclosures during divorce proceedings. Unfortunately, some divorcing spouses attempt to hide assets to prevent their division in divorce. Hiding assets causes significant problems for both spouses once the court discovers the obfuscation. If you believe your spouse is hiding assets, they should disclose them in your divorce proceedings. Your attorney may recommend hiring a financial expert like a forensic accountant to examine the disclosure.
Any financial malfeasance prior to or during divorce proceedings will have a significant impact on the outcome of the divorce. In some cases, hiding assets may lead to criminal prosecution for fraud. The party responsible will lose a sizable portion of the marital property they would have obtained had they been honest in their financial disclosure.
Why You Need Reliable Legal Counsel
Equitable distribution is typically more complex than community property laws. However, this method tends to lead to a fairer and more reasonable result for both parties. If you are unsure what to expect when it comes to equitable distribution in your own divorce case, call our firm. It is important to consult an experienced Wichita, KS divorce attorney as soon as possible. Perhaps most notably, your attorney can help you determine whether alternative dispute resolution is an option in your situation.
No matter the challenges you might face with your divorce, hiring legal representation is one of the best things you can do to protect yourself and preserve your interests. If you are interested in mediating your divorce or have questions regarding equitable distribution laws, contact an experienced Wichita, KS divorce lawyer as soon as possible.