individually or by the spouses in some form of co-ownership . . . shall become marital
property at the time of commencement by one spouse against the other of an action in
which a final decree is entered for divorce.” K.S.A. 2017 Supp. 23-2801(a). Further “a
[divorce] decree . . . shall divide the real and personal property of the parties . . . whether
owned by either spouse prior to marriage, acquired by either spouse in the spouse’s own
right after marriage or acquired by the spouses’ joint efforts.” (Emphasis added.) K.S.A.
2017 Supp. 23-2802(a).
A recent case in the Kansas Court of Appeals affirmed this legal principle. In re Marriage of Wells, published on July 13, 2018, ( Case No. 118,084), Husband appealed the divorce court’s judgment that awarded his ex-wife a portion his pre-marital retirement account. On appeal, he argued that the judge erred in so doing on the sole basis that the account was acquired before the parties were married. The Kansas Court of Appeals affirmed the divorce court’s division of the “pre-marital” account on the grounds stated above.
While it is true that most of the time, i.e., in the vast majority of cases, divorce courts will set aside “pre-marital” property to the party that brought the property into the marriage, divorce courts are not required to do so. It takes an experienced divorce attorney to assess your case and to know what the particular judge in your case will likely do. Consult an experienced divorce lawyer if you have significant assets that could be put at risk by a divorce case.