Family Law Blog
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What's Mine Is Yours
Often when divorcing spouses seek the counsel of Topeka divorce lawyers, they bring with them concerns about their personal property, to which one or both spouses have formed a meaningful connection. But who decides which spouse gets what after a marriage ends? Unfortunately for some, it does not just come down to whose name it is in. Instead, Kansas's marital property laws allow for the courts and spouses alike to be fair and flexible when dividing up property during divorce.
Marital Property refers to any property that is acquired by spouses during their marriage. Often, this even extends to items acquired while the couple just lived together before getting married. Separate Property, on the other hand, is the property that is owned prior to marriage, or acquired by only one spouse during the marriage or after separation. Some states consider all marital property to be "community property" and require its equal division during divorce. No doubt, you've heard disastrous stories about divorce in one of these states but have no fear! Kansas is not a community property jurisdiction.
Under Kansas law, any separate property may be traded, sold, or otherwise disposed of at the will of its owner during the marriage. However, all property owned by married people, whether held individually or by the spouses in some type of co-ownership, becomes marital property as soon as one spouse files for divorce. And because each spouse has a common ownership interest in marital property, Kansas courts are required to make a "fair, just, and equitable" division of the divorcing couple's property.
How is that different from community property? Well, fortunately, "equitable" does not necessarily mean "equal," so our Kansas courts can find that a little unequal treatment in property distribution is necessary when it comes to inherited items and gifts. Several counties have accounted for just such circumstances in their local court guidelines. The Shawnee County Family Law Guidelines, for example, consider the value of property when it is gifted to or inherited by a spouse during marriage, to be Individual Property. This is not to be confused with Separate Property, which we know converts into Marital Property upon filing for divorce. Individual property, is in fact a sub-type of Marital Property; a distinction that ensures the item is reserved for its intended recipient after the couple divorces. Though it is still counted in the couple's combined net assets, when it comes time for distribution, equitable division or fairness dictates that each spouse should be awarded the inheritance they received from their own family as part of their property award.
by Beth Crosland, J.D.