Kansas and Missouri Divorce Attorneys
Kansas and Missouri courts are required to divide the real and personal property as well as the debts of the parties in a Divorce action. Simply put, if you’re getting divorced your “stuff” is going to be split between the two of you. Courts in both states are directed to perform a fair, just and equitable, or, not unreasonable and unconscionable division of marital property. Marital property generally means all jointly acquired property (i.e. acquired during marriage) or, in the case of some assets acquired prior to marriage, the increase in value of an asset since the date of marriage.
While Missouri law specifically gives a party back their property acquired before the marriage or during the marriage by gift or inheritance, Kansas law includes such property as marital and subject to equitable division. However, in Kansas, depending on the circumstances of the case, it is usually considered fair, just and equitable to give a party back their property acquired before the marriage or during the marriage by gift or inheritance.
The most important first step in dividing your joint property is identifying it. Think of your marital estate as a big basket with all of your property neatly packed inside. Your property includes everything you own or possess, from your 401k at work to your vinyl record collection at home. The divorce action requires you to shift all of that property from one big basket into two smaller baskets of an equal or “equitable” value. In order to do this, all of the marital property must be unpacked from the big basket and laid out so that each item can be identified and valued. Once everything has been identified and valued the Court is given the authority to dispose of it as it deems fair, just and equitable.
How Kansas and Missouri Define Marital Property
In Kansas, KSA 23-2801 defines marital property as, “[a]ll property owned by married persons, including the present value of any vested or unvested military retirement pay . . . or, professional goodwill to the extent that it is marketable for that particular professional . . . or acquired by either spouse after marriage, and whether held individually or by the spouses in some form of co-ownership, such as joint tenancy or tenancy in common, shall become marital property at the time of commencement by one spouse against the other . . .”
In Missouri, RSMo 452.330 defines “marital property” as “all property acquired by either spouse subsequent to the marriage except:
- Property acquired by gift, bequest, devise, or descent;
- Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
- Property acquired by a spouse after a decree of legal separation;
- Property excluded by valid written agreement of the parties; and
- The increase in value of property acquired prior to the marriage or pursuant to subdivisions (1) to (4) of this subsection, unless marital assets including labor, have contributed to such increases and then only to the extent of such contributions.”
The Court can divide your property, it can give your property to your spouse and it can order the sale of your property and order how to divide the proceeds from sale. In most cases, a fair settlement between the parties will be beneficial for both spouses as opposed to putting the fate of your “stuff” in the hands of a stranger, i.e. the judge. However, trials exist for a reason and when two spouses simply cannot or will not agree, the judge decides for them.
Both Kansas and Missouri have property division statutes which outline factors for courts to consider when dividing property. The Kansas statute, K.S.A. 23-2802(c) directs Courts to consider the following:
- The age of the parties;
- the duration of the marriage;
- the property owned by the parties;
- their present and future earning capacities;
- the time, source and manner of acquisition of property;
- family ties and obligations;
- the allowance of maintenance or lack thereof;
- dissipation of assets;
- the tax consequences of the property division upon the respective economic circumstances of the parties; and
- such other factors as the court considers necessary to make a just and reasonable division of property.
Likewise, Missouri’s statute RSMo 452.330.1 is similar to that of Kansas. Missouri Courts are directed to consider:
- The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;
- The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
- The value of the non-marital property set apart to each spouse;
- The conduct of the parties during the marriage; and
- Custodial arrangements for minor children.
A Court’s division of marital property is not solely limited to consideration of the above factors. Every case is different, every family is different. At the end of the day the same principle of a fair just and equitable division enables Courts to divide all marital estates, no matter the size or make-up. From marriages with no assets and tremendous amounts of debt, to high income/high asset divorces with millions of dollars changing hands, the Court makes its determination in the same manner. When it comes to dividing an estate as you can imagine, the potential for disagreement is great. Choosing to fight over who gets the forks and who should get the spoons is likely not a good use of your time or money. The courts would agree.
The best result is typically achieved when both spouses can help control the outcome and make it fit their own specific set of needs and circumstances. For example, if your marital estate is limited in assets but heavy on debts and one of those debts is your student loans you may want to look back at your disbursement history. If you were in school when you got married or went back to school after you were married and took out student loans to pay for it, instead of fighting over forks and spoons, you should start collecting your student loan disbursement history, cross check that with the amount you actually needed for tuition and books in each semester and figure the difference between the amount you needed solely for school purposes and how much you took out. If you took out extra on top and those excess funds were used for marital purposes, i.e. rent, groceries, food, clothing, virtually anything other than school, there is a good chance your spouse owes you an equitable share of that sum.
How is this fair, you may ask, when a non-borrowing spouse’s name is not on the note of indebtedness to the student loan company? The simple answer is, because that’s what our statutes say is fair. The better answer is that’s what makes sense. If the judge is required to settle all claims between the parties and one party incurred a debt for the betterment of the family, then the other party should equitably share in that debt. In general, it doesn’t matter whether it’s you or your spouse who is individually obligated on a note or debt, so long as the debt or was acquired during the marriage.
The same goes for assets, such as real estate or retirement and investment accounts. If it was acquired during the marriage, it’s marital regardless of individual ownership or title. For example, if you were married prior to taking your current job, and, since being hired your employer provided retirement plan has increased in value to $100,000.00, your spouse is entitled to an equitable division of that $1000,000.00 account. This is because all $100,000.00 in retirement funds were earned during the marriage. This is marital property.
A step further, let’s say you took that job ten years prior to marriage and that on the day you were married your retirement account had $50,000.00 in it. Your spouse would only be entitled to a share of the $50,000 increase, leaving the first $50,000.00 earned prior to marriage off the chopping block. This first $50,000 is considered pre-marital property.
Whether your case involves a relatively low asset estate and the debts of the marriage outweigh the assets, or, if your case involves high assets, complicated investments, business ownership, family trusts or high-income earnings, it is paramount for there to be absolute transparency “across the v” to ensure a fair, just and equitable division. The Norton Hare divorce team is equipped with a diversification of counsel and staff, suited to meet the needs of each individual client.
Most marital estates are fairly simple to divide. On average a divorcing couple will have one or more pieces of real estate, a vehicle or two, some retirement or investments and a host of joint personal property items in form of household goods and furnishings. Larger marital estates with more complex asset and debt structures, will require a more specialized touch which Norton Hare can provide.