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This content is for informational purposes only and is not intended to provide legal advice.
How do courts decide how to divide assets and debt in a divorce? How can they be sure the division is fair? What goes into the decision? We spoke with Judge Paul Burmaster of the Johnson County Kansas District Court to get the answers to these questions and more.
Judge Paul W. Burmaster currently serves as the 2nd most senior judge in the Family Division of the 10th Judicial District Court in Johnson County, Kansas. Burmaster has enjoyed a diverse career in the legal profession. Since assuming the bench in July 2019, his role as a key decision-maker in divorce, parentage, and protection order cases has underscored his commitment to children and families. Before taking the bench, Judge Burmaster had a successful private practice, where he demonstrated versatility across criminal, civil, and juvenile cases since 1994. Known for his courtroom acumen, Burmaster has tackled an array of criminal matters, from DUI to First Degree Murder, amassing a substantial 40+ career jury trials and countless bench trials.
We first asked Judge Burmaster how he makes his decision when dividing assets and debt. His answer was surprising. “The truth is, I try to avoid it. I tell the parties that no matter how long a trial we have, I’ll never know all that they know. That the parties themselves are in the best position to know how assets and debts should be divided. But, if they can’t reach an agreement, then I will have to decide for them. I tell them they likely will have some regrets about that.”
But what if the parties can’t reach agreement, what then? “Then I have to weigh the evidence presented,” says Judge Burmaster, “and try to determine what is fair, just, and equitable.” According to Judge Burmaster, that generally means reaching a division that is fair and reasonable to both parties. Reasonable is important because it’s the standard by which a divorce ruling is judged on appeal. “If a judge abuses his discretion,” says Judge Burmaster, “then the judgment may be set aside by the Court of Appeals. However, to reach that conclusion, the appellate court would have to find that the trial court judge’s ruling was arbitrary or fanciful instead of reasonable. That is a difficult standard to meet.”
The fair and just portions of a judge’s ruling seem straightforward. But what is meant by “equitable?” Why not just say “equal?” Because, according to Judge Burmaster, that is nearly impossible to measure. “When people divorce and divide their things, their stuff, they are dividing not just monetary value but emotional value as well. We all get attached to our things and consequently the value of those things is affected by that attachment.” According to Judge Burmaster, the judge must set aside emotion and try to make an objective and detached decision about what is fair. “But absolute equality would be impossible. There are too many factors to make that a reality.”
To ensure the best outcome, Judge Burmaster and the other Johnson County Judges request that parties prepare a spreadsheet with all of the assets and debt in question. “It makes it far easier to visualize and compare what is to be divided,” says Judge Burmaster. He says it also makes sure that both parties have considered everything that is at stake. “It can even lead to an agreement by the parties. Once they know all that they have, all that is at stake, they are in a much better position to make a good, informed decision. And ultimately, that’s what both the parties and the Court wants.”
What about debts, how are they treated? “Basically, the same. Almost all debt created during the marriage is a joint debt. Both parties owe it, even if only one name is on the credit card,” says Judge Burmaster. However, there are exceptions. “Student debt, for example, generally stays with the person who got the education because it will directly benefit them going forward.”
Judge Burmaster cautions that like anything else in the law, there are a lot of things to consider. It’s well worth your time to consult with experienced, competent counsel. Court isn’t a game, but like a game there are rules. It takes years of school and years of practice to get a good handle on those rules. Without a lawyer, you may fall victim to your lack of experience. “If there is a lot at stake, it is well worth your time to consult with a good attorney.”
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