What Am I Entitled To in a Divorce?
July 13, 2021
Divorce rates nationwide have been on a decade-long decline, according to data compiled by the Centers for Disease Control and Prevention (CDC). The rate in Kansas went from 3.6 divorces per thousand residents in 2008 to 2.3 per thousand in 2018. In neighboring Missouri, the rate fell from 3.7 to 3.0 per thousand in the same period.
A U.S. Census Bureau survey lists the top three reasons for divorce as incompatibility (43%), infidelity (28%), and money issues (22%).
No matter the statistics or cause, divorce is an emotionally — and often financially — trying time. Divorce can be even more challenging and complex when there are children and property involved.
If you’re considering divorce, have been served papers, or have already begun the process, you no doubt have many questions, especially regarding the division of assets and how that affects your future.
If you’re in the Overland Park or Johnson County areas of Kansas, or even in the neighboring state of Missouri, call me at Rundberg Law, LLC. I am licensed in both states and will answer all of your questions. I will guide you throughout the divorce process to help you get a fair division of assets.
Marital Property vs. Separate Property
Both Kansas and Missouri are “no-fault” divorce states. A divorce can be granted based on an assertion by either or both spouses that the union is incompatible and irretrievably broken. Both states are equitable distribution states, which means the property will be divided fairly, but not necessarily equally. Each spouse is not automatically entitled to fifty percent of the marital property. The ultimate distribution, if decided in court, will be based upon various factors.
Each state recognizes the existence of both marital property and separate property. In Kansas, marital property consists of all assets and debts acquired during the marriage. In Missouri, all property acquired during the marriage is assumed to be marital. In both states, if an asset is titled only in the name of one spouse, that does not make it individual property.
In Kansas, separate property is anything acquired before marriage by either spouse or anything that is obtained through inheritance or in the form of a gift during the marriage. However, appreciation in the value of separate property is a marital asset. Missouri treats non-marital property a bit differently. It presumes that property acquired before marriage is separate and that property acquired during the marriage is marital.
The Source of Funds Rule
The principle called “the source of funds rule” will be used to determine if property is marital or not. If you can prove that you acquired an asset during the marriage in exchange for an asset you had prior to the marriage, or with any funds you had prior to the marriage, then that property remains separate property. Appreciation is the value of separate property during the marriage is not a marital asset. This proof must be proven by clear and convincing evidence.
In either state, if the separate property becomes “commingled,” it can cease being non-marital and become marital, in whole or in part. This typically happens when marital funds are used to improve, maintain, contribute to, or pay off debt on separate property.
When deciding how to distribute the assets of your marriage equitably, judges in either state will rely on certain commonly held considerations. To determine what is considered equitable distribution, judges will normally consider the following:
The economic and financial circumstances of each spouse and their future earning potential
The length of the marriage
The age of each spouse
The time, source, and manner of acquisition of property
Each spouse’s separate property
The spouses’ behavior during the marriage — marital fault that results in an economic impact or the dissipation of marital funds
Custodial arrangements for the children involved, if applicable
The Uncontested Divorce Alternative
If the spouses can agree upon what they consider to be an equitable distribution of assets, they can present this to the court for consideration in what is known as an “uncontested” divorce. The big consideration here is whether the spouses can put emotions and past feelings aside long enough to reach an agreement.
The best route to an uncontested divorce is through the help of a divorce attorney who can advise you about what division of assets and liabilities is best for you. Arguing matters in court will be costly in both time and money, to say nothing about the continued stress. There are no guarantees for how a judge will decide how assets and liabilities will be divided.
Let Rundberg Law, LLC Help You
Divorce is not something you want to attempt on your own. You will be much better off if you have the guidance and counsel of an experienced divorce attorney. Attorney Ron Rundberg will help you assess your assets and liabilities in an effort to ensure you're not taken advantage of. Emotions often run high in a divorce case and can make it difficult for you to determine what division is appropriate for your situation.
If you’re facing any stage of divorce, merely considering it, or you've been served notice by your spouse and have court proceedings that are pending — contact me at Rundberg Law, LLC. I am located in Overland Park, Kansas, but am licensed to practice in both Kansas and Missouri. I have helped countless others in your position. Call for a free consultation and let’s work toward an equitable solution for you.