Some Issues Concerning the Property of Married Persons in Kansas

Publication year1999
CitationVol. 68 No. 09 Pg. 18
Kansas Bar Journals
Volume 68.


Journal of the Kansas Bar Association
September, 1999


John C. Peck [FNa1] [FN1]

Copyright (c) 1999 Kansas Bar Association; John C. Peck

I. Introduction

Ask someone what marital property is. You'll probably get various responses like - it is property a married couple has at any given time during the marriage; it is property acquired during the marriage; or it is property owned jointly by the couple. Black's Law Dictionary defines marital property as "property of spouses subject to equitable distribution upon termination of marriage" or "[p]roperty purchased or otherwise accumulated by spouses while married to each other and which, in most jurisdictions, on dissolution of the marriage is divided in proportions as the court deems fit." [FN2] The lay understanding focuses on the marriage, while Black's dictionary focuses on divorce.

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Kansas statutes use the term more narrowly than do the definitions from the vernacular or from Black's dictionary. In Kansas, marital property as the term is used in the statutes technically comes into being only upon the filing of divorce under K.S.A. 60-1601 to -1622. Prior to the filing of divorce, a husband and a wife may own some property separately and some property jointly. K.S.A. 1998 Supp. 23-201 states that at the filing of the divorce all property, regardless of when or how acquired or how held, becomes marital property. So technically marital property does not exist as such in Kansas prior to the filing for divorce. This use of the term most closely fits Black's first definition and makes Kansas, in Professor Swisher's classification, an "'all property' equitable distribution state." [FN3]

In this article I discuss several issues regarding property ownership and disposition during marriage and property division at divorce. While most of these issues do in fact concern marital property as our statutes define the term, others do not. Hence, the title to this article.

The main sources of law on these issues for Kansas practitioners are K.S.A. 23-201 to -208 (married persons) and K.S.A. 60-1601 to - 1622 (divorce and maintenance), appellate court cases, and Kansas Supreme Court rules. [FN4] Some local bar associations have guidelines. [FN5] Two handbooks on Kansas family law are available. [FN6]

II. Property of married persons, in general

A. The statutory framework

The general rules regarding the nature of ownership of property held by married persons are found in K.S.A. 1998 Supp. 23-201(a) and K.S.A. 23-202, and -204. K.S.A. 1998 Supp. 23-201(a) says that property brought into the marriage or received after the marriage by gift or inheritance, except a gift from the other spouse, remains the person's separate property and is not subject to the disposal by the person's spouse or liable for the spouses's debts. K.S.A. 23-202 empowers married persons to convey their real and personal property. Under K.S.A. 23-204, married persons may carry on any trade or business, perform any labor or services, and keep the earnings as separate property.

When a person files a divorce, subsection (b) of K.S.A. 1998 Supp. 23-201 comes into play: "All property owned" by married persons becomes "marital property" at the time one spouse files for divorce. ]From that moment until the divorce decree divides the property, each spouse has an undetermined "common ownership" in the marital property, the extent of which is to be determined by the court under K.S.A. 1998 Supp. 60-1610, a part of the divorce statutes.

The first three words of K.S.A. 1998 Supp. 23-201(b) are key - "all property owned." "All" indicates a legislative intent to bring literally every bit of property of whatever kind and in whatever form under the umbrella of the divorce court's dispositional powers. While the word "property" seems clear, a look at the rest of K.S.A. 1998 Supp. 23-201(b) and cases from Kansas and other states indicates that, over time, such a word needs clarification. For example, we have had to add military retirement pay and professional goodwill expressly to the statutory section, and the Kansas Supreme Court has dealt with patents as marital property. [FN7] Other states have dealt with the question of whether professional degrees such as the M.D., M.B.A., or J.D. are property. [FN8] Property "owned" would include property held in fee simple as well as lesser vested and contingent interests, even though difficult to value, but not mere expectancies.

Thus, in general, Kansas is a separate property state, which means that property brought into the marriage (K.S.A. 1998 Supp. 23-201(a)) or acquired during the marriage (K.S.A. 23-201(a) and -204) remains the separate property of each spouse during the marriage, until commingled, gifted, or otherwise converted to jointly held property. But on the filing of divorce, all property becomes "marital property," a kind of jointly held property, subject to division of the divorce court.

*20 B. History of the statutory framework

These statutory sections are part of what was originally the 1868 Married Womens' Act, which provided that real and personal property brought into marriage by a woman remained her separate property after the marriage; that a married woman could sell her property; and that a married woman could carry on a trade or business and keep the earnings as her separate property. Amendments in 1976 "desexed" the statute by changing the words "married woman" to "spouse." [FN9]

In 1978 the Legislature added to K.S.A. 23-201 a subsection (b) to identify "marital property." The 1978 version of the subsection, however, included as marital property only property acquired by either spouse after marriage, except for property received as a gift or inheritance during the marriage. [FN10] It also excluded from marital property the property brought into the marriage and property covered by a written agreement. Subsection (b) also gave each spouse a common ownership in marital property and made this marital property subject to disposition by the court under K.S.A. 60-1610 of the divorce statutes. [FN11] Thus, the original 1978 version of K.S.A. 23-201(b) included as marital property only some property accumulated after the marriage, making Kansas at that time a "'dual property' equitable distribution state" in Professor Swisher's classification. [FN12] The genesis of the 1978 amendment was a tax reason - to make transfers of appreciated property from one spouse to the other in a divorce settlement agreement a non-taxable event, to circumvent the Davis rule. [FN13]

The 1981 Legislature amended K.S.A. 23-201(b) to broaden marital property to include "all property" owned at the time of filing for divorce." [FN14] The 1987 amendments to subsection (b) added military retirement pay as a specific type of included property, [FN15] and the 1998 Legislature added professional goodwill as a specific type of included property. [FN16]

III. Property during the marriage, prior to filing for divorce

A. K.S.A. 1998 Supp. 23-201(a).

As stated above, K.S.A. 1998 Supp. 23-201(a) and K.S.A. 23-204 provide that any property brought into the marriage or acquired after the marriage belongs to the owner. One exception in K.S.A. 1998 Supp. 23-201 to outright ownership of separate property by one married person is property received as a gift from the person's spouse. Although not apparent from the language of the section, the purpose of this provision is probably to allow creditors to go after property given as a gift by the debtor to the debtor's spouse to avoid the claim. For example, in Waltz v. Sheetz, [FN17] H gave a deed without consideration to W while H was indebted to the bank. The court held that real property received by W as a gift from H remained subject to execution in collection of his debts, that such a gift was fraudulent as to creditors regardless of motive, and that "at best she holds the title in trust for the payment of his debts." [FN18]

K.S.A. 1998 Supp. 23-201(a) states that the property of one person is not liable for that person's spouse's debts. Does subsection (a) conflict with the common law necessaries doctrine, under which a husband must pay for necessaries for his wife? Does Kansas even still recognize the common law necessaries doctrine? In St. Francis Regional Med. Center, Inc., v. Bowles, [FN19] the hospital sued W on H's unpaid medical bills, for which only H and not W had contracted. Both parties agreed that the necessaries doctrine was unconstitutional based on Orr v. Orr. [FN20] W argued that the doctrine should be abolished, while the hospital argued that the appropriate remedy was to retain the doctrine but apply it equally to both husbands and wives. The court held that the doctrine applies equally to both spouses, but that the creditor must first pursue collection against the recipient spouse. Besides the St. Francis case, K.S.A. 59-2006 obligates married people to support their spouses if the spouse is committed to a state institution. So it looks like, despite K.S.A. 1998 Supp. 23-201(a), one spouse's property may indeed be subject to the debts of the other spouse in the cases of necessaries or of a commitment to a state institution.

B. K.S.A. 23-202 & K.S.A. 1998 Supp. 59-505.

K.S.A. 23-202 appeared originally as Section 2, Chapter 62 of the 1868 Married Womens' Act. It provided that a married woman could sell her real and personal property and contract concerning the property. The 1976 Legislature amended K.S.A. 23-202 to "desex" the section and to enable a married person to contract about any subject, not just about real and personal property.

While K.S.A. 23-202 appears to give both spouses unfettered power to dispose of their separately...

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