Separate/Individual Property in Divorce
Sept. 24, 2019
In Kansas, individual property is defined as follows:
1. The entry value of property owned by either party prior to the marriage, and brought into the marriage;
2. The entry value of property received during the marriage by will or inheritance from the party's family member. Generally, it is the relationship of the donor(s) to the party in the marriage and not the designated donee or intent at the time of the gift that will determine the individual status of the property;
3. Then entry value of the property received during the marriage by gift from someone other than the spouse or children of the parties. Again, it is generally the relationship of the donor(s) to the party in the marriage and not the designated donee or intent at the time of the gift that will determine the individual status of the property.
As a general rule, individual property will not be divided, but restored at its entry value, at the time of the marriage, to the party for or by whom it was acquired before consideration of the division of mutual property, so long as the property still exists and can be traced. When individual assets are sold and the proceeds used to purchase other assets, or when individual assets are traded for other assets, the new assets may be considered individual to the extent of the value of the original individual assets, so long as the value of the individual asset can be traced.
In Missouri, courts will assume that all property acquired during the marriage is marital property, unless it can be proven that it is separate property. Separate property is defined as follows:
1. Property acquired by gift, devise, or descent;
2. Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
3. Property acquired by a spouse after a decree of legal separation;
4. Property excluded by a valid written agreement of the parties;
5. The increase in value of property acquired prior to the marriage or pursuant to paragraphs 1 through 4 above, unless marital assets including labor, have contributed to such increases and only to the extent of such contributions.
Generally, property owned by one spouse prior to the marriage will remain separate property and will be awarded to the owner of that property. Further, property which would otherwise be separate property will not become marital property solely because it became commingled with marital property.
The burden of proof is on the party claiming the separate nature of the property to prove with clear, cogent and convincing evidence that the property should be characterized as separate property. Mere conclusory testimony of one party, without corroboration, will not satisfy the required threshold of proof. The best way to prove property is separate is to provide a history of documentation.