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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:
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:
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:
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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