Divorce is more than just the legal ending of a marriage. It also entails the process of dividing marital property and legally transferring ownership of a divorcing couple’s shared property to the individual ownership of each of the spouses. In fact, property division can be one of the most challenging parts of any divorce. Every state in the US upholds different laws pertaining to property division, and Kansas follows an equitable distribution statute.

If you plan to end your marriage in Topeka, KS, you should begin developing an understanding of the process of equitable distribution. Should you and your spouse take your divorce to trial, the judge overseeing your case will uphold the equitable distribution statute to determine property division. If you prefer to keep these decisions within your control, you and your spouse must be willing to agree to alternative dispute resolution.

Equitable Distribution in Divorce Litigation

In the event you and your spouse are unwilling to compromise or unable to negotiate any aspect of your divorce, it is highly likely you will need to undergo a litigation process to settle your divorce. Divorce litigation is notoriously stressful, protracted, and complex. In the end, the final decision is completely out of your hands.

For these reasons, it is best to avoid litigation if at all possible. For example, while you and your spouse may not agree on most issues, it could be possible for the two of you to reach compromises on certain aspects of your divorce. You can still take advantage of alternative dispute resolution for the things you can negotiate, then move to litigation to have a judge settle the rest. However, if you are unable to negotiate property division, a Topeka, KS family court judge will assess and determine the most equitable, though not necessarily equal, division of your marital property.

Defining Marital Property in a Topeka, KS Divorce

Kansas state law differentiates between two main property types in divorce. Separate property is any property owned by one spouse, including assets they owned before they were married, gifts, and inheritances from family members. If a spouse has separate property that increases in value due to the efforts and/or contributions of the other spouse, it may legally qualify as marital property for the purposes of property division in divorce.

Marital property includes any and all property and assets a married couple obtains during the marriage. In Kansas, marital property typically includes income both spouses earn while married, jointly purchased real property, and investment accounts to which both spouses contributed. If your divorce is heading for litigation, you can expect the Topeka, KS family court system to thoroughly investigate your financial records before a judge completes an equitable distribution determination.

How Will a Judge Determine Equitable Distribution?

It is a common misconception that divorcing your spouse automatically means parting with half of your assets and property due to the divorce proceedings. In an equitable distribution state like Kansas, the family court system strives for fairness and equitability, meaning the result is unlikely to be a completely even 50/50 split. When a judge decides property division in a Topeka, KS divorce, they must evaluate several factors:

  • The judge will determine the amount of separate property each spouse controls. If one spouse owns a great deal more separate property than the other, the judge will likely award the other spouse a larger portion of the marital property to make up the difference.
  • When the divorcing couple has children, each parent’s custody rights and child support obligations will influence equitable distribution proceedings. For example, if one parent obtains majority custody, it would typically suit the children’s best interests for them to remain in the family home instead of the court compelling the couple to sell the home and divide the proceeds.
  • The court will evaluate each spouse’s behavior prior to and during divorce proceedings, especially when it comes to their financial disclosure and their use of marital property. For example, if one spouse intentionally squanders marital assets with the intention of depriving the other spouse of marital property, the court will view the behavior unfavorably.
  • A judge strives for the most equitable distribution of property possible. As a result, they must weigh each spouse’s current income and their future earning potential. If one spouse earns significantly less income or has limited job prospects compared to the other, it matters. This spouse will likely receive a larger share of marital property to account for the difference.

Every divorce case is unique, and these are only a few of the possible factors that can affect equitable distribution. It is vital to understand that the result of property division is unlikely to be exactly 50/50, and one spouse may receive 60%, 70%, or even 80% or more of the couple’s marital property. One major disadvantage to undergoing equitable distribution determination in court is the fact that the final decision rests entirely in the hands of the judge.

Private Negotiation of Property Division in Topeka, KS Divorce

Many couples in Kansas and throughout the US are choosing alternative dispute resolution to maintain more control over their divorce proceedings. It is possible to privately negotiate property division in your divorce through mediation. The process is straightforward as long as both spouses are willing to negotiate.

Divorce mediation is entirely private. You, your spouse, and your respective attorneys will meet with a neutral mediator who will help you draft your divorce agreement. It is possible to cover many different issues through mediation, including property division, alimony, and evaluation of prenuptial contracts. You cannot, however, settle anything related to child custody or child support through mediation. You and your spouse may negotiate a parenting plan, but you will need to submit your proposal to a Topeka, KS family court judge for review and approval.

Negotiating property division privately allows you and your spouse to reach a more personalized agreement compared to that provided by Kansas family court. While mediation offers you the chance to keep your divorce proceedings private and maintain greater control over the outcome of your divorce, you will still need reliable legal representation to guide you through this process. Contact an experienced Topeka, KS divorce attorney as soon as possible if you have concerns about property division during your divorce.