Every state in the country upholds different laws when it comes to property division in divorce. A major part of the divorce process is the legal transfer of ownership rights from a couple’s shared marital property to two single individuals’ separate ownership in fair measure. The state of Kansas upholds an equitable distribution law, which is very different from community property laws seen in California, Nevada, and several other US states.
While community property laws require a completely equal division of property in divorce, equitable distribution laws work differently. The court strives for fairness and an equitable, though not necessarily equal, distribution of marital property in divorce. If you and your spouse are preparing to divorce in Topeka, KS, it’s important to understand how equitable distribution works.
The Three Steps of Equitable Distribution
There are three main steps in the equitable distribution process for property division in a Topeka, KS divorce. First, the court must determine whether a piece of property or a particular asset qualifies as marital property or the separate property of one of the spouses. Separate property typically includes property and assets owned by a spouse prior to marrying, gifts given specifically to one spouse, and inheritance received from other relatives.
In some cases, separate property can “transmute” into community property if the other spouse had a measurable impact on the property, improved it, or increased its value. For example, if you owned a home worth $100,000 prior to marrying and your spouse contributed to renovations that increased its value substantially, the house would likely qualify as marital property in the eyes of the court. It is also possible for separate property to become marital property by converting it into jointly owned property during the marriage.
The second step of equitable distribution proceedings is to assess the value of marital property eligible for division in the divorce. This may require professional appraisals and review from a certified public account, forensic account, or actuary.
The final step of equitable distribution is the actual division of the marital property. If you and your spouse are pursuing collaborative divorce mediation in Topeka, KS, call our firm. It is possible for the two of you to reach mutual agreement concerning how you wish to divide your property more privately. Since you and your spouse know your marriage and individual needs better than anyone, it is possible to reach an agreement without messy litigation if you are willing to cooperate.
Equitable Distribution in Divorce Litigation
Unfortunately, it is not always possible for a divorcing couple to reach mutual agreement through mediation. The final say on their property division may fall to a Topeka, KS family court judge. In this case, the judge has the responsibility to accurately assess the facts of the case and evaluate each spouse across several metrics to determine the most equitable distribution of marital property. Some of these factors include:
- The age of each of the spouses. Under equitable distribution laws, the court must determine if the ages of the divorcing spouses have financial implications, and they will consider these factors in their determinations.
- The duration of the marriage. The longer a marriage has lasted, the more marital property the couple is likely to have obtained.
- The current and future earning capacity of each spouse. If one spouse is less capable of earning a living than the other, or if one spouse earns substantially more income than the other, these factors can significantly influence the final equitable distribution determination.
- The amount of separate property owned by each spouse. If one spouse owns significantly more separate property than the other, it could affect your case. This could sway a judge to award a greater share of marital property to the other to offset any need for alimony or spousal maintenance.
- The time and manner in which the spouses acquired their property and assets. The court must thoroughly review the couple’s financial records to accurately determine who owns which assets.
- The spouses’ separate family responsibilities and relationships with extended family members. The court may award a greater share of equitably distributed property if one spouse retains more familial obligations than the other.
- Alimony payments received by either spouse. If you or your spouse receives alimony from a prior marriage, this will influence the equitable distribution determination in your current divorce.
- Any dissipation of assets. Unfortunately, some people will wastefully spend marital assets once they know divorce is coming as a way to attack the other spouse. This dissipation of assets or frivolous spending, once proven, can be very costly to the spouse who engaged in such behavior.
- Potential tax implications of the property division determination. The court will aim to rule in such a way that the equitable distribution determination does not cause undue tax hardship for either spouse.
These are just a few of the metrics a Topeka, KS judge will use to determine equitable distribution. However, you and your spouse can come to a mutual agreement about some aspects of your property division privately through divorce mediation. For example, you may agree to continue sharing property until your children move out of the family home, or you could agree to liquidate some assets and split the proceeds to avoid unnecessary legal proceedings and further expense for the both of you.
Equitable Distribution of Debts
One of the most contentious parts of the equitable distribution of property in divorce is the need to ensure the equitable distribution of debts as well. Debt functions much the same way as property ownership for the purposes of divorce in Topeka, KS: the court will determine which debts are separately held by each of the spouses and which debts are the responsibility of both spouses. Mortgages, car loans, credit card debts, personal loans, and many other debts all require thorough review for equitable distribution proceedings.
Find Legal Counsel Now
Equitable distribution aims for fairness, but it is very easy for some people to feel that the process is unfair in some situations. You can clarify your understanding of the equitable distribution laws of Topeka, KS by hiring an experienced and reliable family law attorney to assist you in your divorce case. They will help you prepare for the proceedings ahead and ensure you achieve a fair and equitable result in your divorce under Kansas state law.