How Is Property Divided in a Divorce?

Dividing property in a divorce can often be a complicated process. Marital assets, debts, and personal property all need to be properly considered. Therefore, it's essential to understand how property division works under the law. 

The way property is split varies depending on state laws, the type of assets involved, and whether the spouses can reach an agreement on their own. Without a fair division, one spouse may be left at a significant financial disadvantage after the divorce.

Located in Kansas City, Kansas, Joseph A. DeWoskin, P.C. strives to help individuals work through the challenges of property division while protecting their financial interests. Whether dealing with real estate, investments, or personal assets, a divorce attorney can help make sure that clients receive their fair share.

Understanding how property is divided is crucial for anyone going through a divorce. Read on for more information about how courts handle asset distribution and what factors impact the outcome.

The Difference Between Marital and Separate Property

Before property can be divided, it's important to distinguish between marital and separate property. Marital property includes assets acquired during the marriage, regardless of whose name is on the title. This can include income, real estate, vehicles, and retirement accounts. In most cases, marital property is subject to division during divorce.

Separate property generally includes assets owned by one spouse before the marriage, inheritances, gifts, and certain personal injury settlements. Courts usually don't divide separate property unless it has been mixed with marital assets. 

If separate property becomes commingled with marital funds, it may become subject to division. Because of this, understanding how property is classified is critical when determining what belongs to each spouse. Once property is categorized, courts decide how to divide it fairly, which varies depending on state laws.

How Equitable Distribution Works

Kansas follows the principle of equitable distribution, meaning property is divided fairly but not necessarily equally. Courts consider various factors to determine a fair split, such as the length of the marriage, each spouse’s financial contributions, and their earning potential after divorce.

Judges may also take into account factors like misconduct or financial waste by either spouse. If one spouse used marital assets irresponsibly, such as excessive gambling or spending, the court may adjust the division accordingly. The goal is to make sure that each spouse receives a fair share of marital assets based on their contributions and financial situation.

Factors That Influence Property Division

In Kansas, the courts consider multiple factors when deciding how to divide marital property. Some key factors to keep in mind include the following.

• The length of the marriage: Longer marriages often result in a more equal distribution of assets, while shorter marriages may lead to a more individualized approach.

• Each spouse’s financial situation: Courts consider income, employability, and future earning potential when determining a fair division.

• Contributions to the marriage: This includes both financial and non-financial contributions, such as homemaking and childcare responsibilities.

• Debts and liabilities: Marital debts are typically divided along with assets, meaning both spouses may be responsible for repayment.

• Any existing prenuptial or postnuptial agreements: If an agreement is in place, it may override standard division rules.

By assessing these factors, Kansas courts strive to create a fair distribution that accounts for both spouses' financial needs. However, there are certain aspects of a shared marital estate that can affect property division.

Prenuptial and Postnuptial Agreements

A prenuptial or postnuptial agreement can significantly impact property division in a divorce. These legal documents outline how assets and debts should be handled if the marriage ends. If properly executed, courts will generally uphold these agreements, provided they're fair and not made under duress.

For couples with significant assets, a divorce attorney can help draft an agreement that protects both parties. This can prevent disputes and secure a smoother divorce process if the marriage dissolves. Without an agreement in place, the courts will determine property division based on state laws.

How Business Assets Are Handled in a Divorce

Business ownership adds another layer of intricacy to property division. If a business was established during the marriage, it's generally considered a marital asset, even if only one spouse ran the company. The courts may divide business assets or assign ownership to one spouse while compensating the other.

In some situations, spouses may choose to co-own the business post-divorce or sell it and split the proceeds. However, if co-ownership isn't an option, a buyout may be necessary. The best approach depends on the nature of the business and the relationship between the spouses.

The Impact of Debt on Property Division

Debt is another major consideration when dividing property. Marital debts, such as mortgages, credit cards, and loans, are typically split between both spouses. Courts consider who benefited from the debt and each spouse's ability to repay when determining responsibility.

If one spouse incurred significant debt without the other's consent, courts may assign the liability solely to that spouse. A divorce attorney can help make sure that debt division is handled fairly and that neither spouse is unfairly burdened.

Retirement Accounts and Divorce Settlements

Retirement savings and pensions are often considered marital property, meaning they may be divided between spouses. Courts use Qualified Domestic Relations Orders (QDROs) to facilitate the division of certain retirement accounts without tax penalties.

Spouses may negotiate how to divide retirement accounts or agree to keep their own savings. Understanding the long-term financial impact of dividing these funds is crucial when planning for the future.

How to Divide Your Marital Home

For many couples, their marital home is their most valuable asset, and dividing the home can often be challenging. Some key factors to keep in mind include:

• Who will continue living in the home: If one spouse has primary custody of children, they may be awarded the home to maintain stability.

• The financial ability to maintain the home: Keeping a house comes with ongoing costs, such as mortgage payments and property taxes.

• Options for selling or buying out the other spouse: One spouse may buy out the other's share, or the home may be sold, and the proceeds divided.

• Emotional attachment to the home: Sentimental value can sometimes influence decisions, but financial feasibility will largely be a determining factor.

Determining the best option requires assessing both financial and personal factors. However, the courts will aim to make sure that both spouses have housing security after the divorce.

Contact a Divorce Attorney Today

Dividing marital property can often be challenging, but with open communication, the right planning, and working with an experienced family law attorney, it doesn't have to be. Joseph A. DeWoskin, P.C. is dedicated to providing legal guidance on property division and helping you protect your financial interests.

Located in Kansas City, Kansas, the firm serves clients throughout Johnson County, Leavenworth County, and Wyandotte County in Kansas, as well as Jackson County, Cass County, Clay County, and Platte County in Missouri. Reach out to Attorney Joseph A. DeWoskin, P.C. today to schedule a consultation.