How colorado courts divide property in divorce matters
Property Division in Colorado: What You Need to Know
Let's talk about property division in Colorado amidst divorce. Though property division can be tricky and often times quite convoluted, we are here to help make sense of how the Colorado court treats this issue and how you can leverage it to your advantage. The first thing you need to know, and often times requiring reiteration during the process, is that Colorado is an equitable distribution state. That means the court aims to divide property fairly between divorcing spouses, based upon consideration of their entire circumstances.
WHAT PROPERTY WILL BE DIVIDED IN A DIVORCE PROCEEDING IN COLORADO?
The step a Court must take in deciding the distribution of property in a divorce proceeding, is to first determine what property is divisible. Only marital property is divisible. Let’s differentiate marital property from separate property.
According to C.R.S. §14-10-113(2), marital property includes all property acquired by either spouse during the marriage (including any acquired property since the time of separation and prior to any agreement or decree), except:
Property received as a gift or inheritance.
Property acquired in exchange for property owned before the marriage or received as a gift or inheritance.
Property acquired after a decree of legal separation.
Property excluded by a valid agreement between the parties.
Just this first step, determining whether property is marital or separate, can be contentious and an HB Law attorney can advocate on your behalf so to protect your separate property from division.
If i own separate property, it is not considered when dividing marital property, right?
This is a common misconception - just because property is deemed separate, either by the Court or by agreement of the parties, its value which one spouse is receiving is still a factor the Court considers when dividing the remaining marital property.
How Does the Court Divide Marital Property?
Once the Court determines what property is in fact marital (this issue can be litigated or agreed upon by the parties), the Court then looks to its handy list of factors in which it must consider when dividing marital property, as laid out in C.R.S. §14-10-113(1):
Contributions of each spouse to acquiring marital property, including as a homemaker.
The value of property set apart to each spouse (i.e. separate property).
The economic circumstances of each spouse at the time of the division, including the desirability of awarding the family home to the spouse with primary custody of the children.
Any changes in the value of separate property during the marriage or its use for marital purposes.
Let’s break down a couple key concepts
So, what does all this legal jargon mean in practice? Here are a few key points:
No fault state: Colorado courts cannot legally consider marital misconduct when dividing property. Therefore, no, you cannot take your spouse for all they are worth because they slept with their secretary - the Court simply does not care.
Gifts and Inheritances: These are usually considered separate property and stay with the original owner. This includes a gift from one spouse to other, such as the wedding ring.
Presumption of Marital Property: Anything acquired after your wedding and before a divorce decree is presumed to be marital property. This means that if you do not want your entire retirement account to be considered marital, you carry the burden of proving it or a portion thereof is separate property.
Increases in Value: If you brought property into the marriage (like a house or investment account) and its value increased during the marriage, that increase is considered marital property. For example, if you owned a retirement account prior to the marriage but made contributions to that account during the marriage, those contributions and any further increase in value due to interest and market fluctuations is considered marital.
Does property division affect spousal maintenance (alimony)?
Spousal maintenance (aka alimony or spousal support) is somewhat intertwined with property division. C.R.S. 14-10-114 (Colorado’s spousal maintenance statute) requires courts to consider the value each spouse receives from the allocation of marital property, among other things, when determining whether to award spousal maintenance. In other words, the division of marital property must be determined prior to maintenance and the value each party receives in marital property will inform the spousal maintenance award. Read more about spousal maintenance here.
When Things Get Complicated
Drawing the line between marital and separate property can be tricky but also opportunity for negotiation and settlement - as with every step, really, of your divorce matter. Some situations can further convolute the issue or property division - pensions, high asset accounts including retirement or investment accounts, and self-employed parties can trigger the need for expert evaluations.
As with most issues when facing a divorce, it is often times not as easy as it may seem or we wish it to be - that is where we come in. The experienced family law attorneys at Harwich Brickey, LLC are here to help you navigate the complicated and overwhelming process of divorce. Every case is unique, so getting personalized advice is crucial. Call us today to secure representation that is tailored to you and your needs - our attorneys answer the phone!