During a divorce, each party may fight to keep certain items that have sentimental value, such as jewelry, art pieces, or antiques passed down through generations from one side of the family. However, many heirlooms and antiques may also have considerable monetary value. If you are going through a divorce, and your ex refuses to return an item you inherited from your loved ones, there are ways for you to claim ownership.
What If I Inherited the Heirloom Before the Marriage?
Kansas Statutes Annotated (K.S.A.) 23-2801 identify that ALL property owned by married persons “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, separate maintenance, or annulment.” Thus, on the surface, it appears that Kansas laws do not distinguish inherited property from other property acquired during a marriage. However, that is not quite the case.
Kansas courts typically will consider how property was obtained by the parties when determining how to divide property.
Two of the largest districts in the State of Kansas- the 10th (Johnson County) and the 3rd (Shawnee County) both include provisions that identify that any property received during the marriage by will or inheritance will likely be deemed separate property. Additionally, various Supreme and Appeals Court cases have provided clarification as to how District Courts should account for and divide property that originated through inheritance.
As a matter of precaution, parties should always establish and keep evidence of when they inherited an heirloom to prevent any future disputes when dividing assets between the two parties.
What If Your Spouse Has Increased the Value of The Heirloom?
If the item was repaired or refurbished using marital assets (money earned during the marriage), such as an antique vehicle or boat, your spouse may have a right to claim interest in the increased value of the property. Thus, it may be necessary to keep track of the value of property before and after it is repaired or refurbished.
What If My Son or Daughter, Who Is Now Divorcing Their Spouse, Gave My Family Heirloom That Was Once Theirs to Their Ex?
If your child, at any given time, gifted an item to their ex-spouse that was once a family heirloom, the ex has no obligation to give the item back since it was a gift.
Usually, these items are passed down to a person’s respective children, but if that is not the case, the only alternative way to gain ownership of the heirloom again is to negotiate. The other spouse might be interested in this negotiation by exchanging some marital property, other items, or assets of interest, etc.
How Can I Handle This Situation in the Best Way Possible?
The best way to handle the situation is to keep track of every item, where it came from, and who is seeking ownership of the item. Ultimately, things go much more smoothly when both parties are respectful as to which item belongs to who or which side of the family had original ownership.
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