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Kansas Property Division
Property Distribution Laws in Kansas

In Kansas, the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the property is divided by the District Court within the Judgment of Divorce.

Kansas is an equitable distribution state. When the parties are unable to reach a settlement, the District Court does it for them. Equitable does not mean equal, or even half, but rather what the District Court considers fair.

Factors in Equitable Distribution

In making a property award, the court considers:

  • 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.

Sometimes, a spouse unintentionally transmutes separate property into marital property by changing it to joint ownership. The court presumes that the spouse intended to make a gift of the property to the marriage and treats the property as jointly owned.

Marital and separate property can also be mixed together. This is called "commingling." Some couples combine their separate assets intentionally; others do so without thinking about it. For example, one spouse's premarital bank account can become marital property if the other spouse makes deposits to it; or a house owned by one spouse alone can become marital property - in whole or in part - if both spouses pay the mortgage and other expenses. When the spouses arent able to decide what belongs to whom, the judge decides whether any or all of the commingled property is a gift to the marriage or whether the original owner should be reimbursed in whole or in part.

Spouses divide assets by assigning certain items to each other. Spouses swap assets to achieve a rough equality, possibly with an equalizing payment if one spouse gets substantially more than the other, or by selling property and dividing the proceeds. They can also agree to continue to own property together but most people don't do this, because they don't want to continue dealing with each other. Some couples do agree, for example, to keep the family home until children are out of school. Others may keep investment property in hopes it will increase in value.

The couple must also assign all debt accrued during the marriage, including mortgages, car loans and credit card debts, to one of the spouses.

Marital Property and Separate Property

Marital property includes most assets and debts a couple acquires during marriage. Property is separate if a spouse owned it before marriage or acquired it during marriage by gift or inheritance. Separate property also includes items purchased with or exchanged for separate property and earnings on separate property.

Valuing and Dividing Property

First, the court will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Couples who need help determining the value of certain property may hire professional appraisers. Some financial assets, such as retirement accounts, can be difficult to evaluate, and you may end up needing the assistance of a financial professional, such as a CPA or an actuary.

The Marital Home

In Kansas, as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) are deducted from the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.

From there, couples choose one of three options to divide the equity:

  • The spouses sell the home and divide the proceeds.
  • One of the parties may refinance the home and buy out the other party.
  • One spouse (usually the custodial parent) remains in the home with the exclusive use and possession for a certain period of time (for example, until the youngest child graduates from high school), then either buys out the other spouse or sells the home and divides the proceeds.

Pensions and Retirement Accounts

In Kansas, vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.

Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.

In Kansas, the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:

  • Defined Contribution Plans: A defined amount of money belonging to the employee. The employee and/or the employer make defined contributions. The balance of the plan is constantly changing, but its value is definable at any given point. 401(k)s, 403(b)s and profit sharing plans fall into this category.
  • Defined Benefit Plans: A retirement benefit where an employer promises to pay a benefit to an employee sometime in the future, based upon some type of formula. Normally, this formula is based on the employees salary near the end of his or her career and the number of years he or she worked for the employer before retirement. Defined benefit plans are much more complicated to value and often require the professional evaluation of an actuary to determine exact values.

In Kansas, if spouses share in each others retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, how such benefits should be paid, etc.

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