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Marital Property Division
Colorado is an “Equitable Division” State, Not a Community Property State

marital property division

Colorado Springs Divorce Attorney

Colorado is not a community property state, which would have meant that all martial property would be divided equally. Instead, Colorado is an “Equitable Division” state. Still seems like we’re saying equal, doesn’t it? Nope.

  • Equitable simply means “fair” it doesn’t mean “equal”
  • Colorado is a “fair” division state where the court tries to allocate property, assets and debts in a fair manner after taking into account many factors such as
    • the contributions of each party to a particular asset
    • the value of the property as compared to other items of property
    • whether the property is income generating such as an investment or brokerage account or rental property

In practice, many attorneys have followed a rule of thumb in which assets are presumed to be divided equally with assets being divided in proportion to income. This is a dangerous assumption that ignores the realities and complexities of marital property. Not all property in the possession of the parties is necessarily “joint” or “marital” property. Property falls into two main categories (1) sole or separate property belonging to one party or the other or (2) joint or marital property belonging two both parties. Only the second category is divisible by the court. However, whether an item of property can be carved out as sole or separate depends on many factual and legal arguments.

For example, if one party purchased a house prior to marriage and the house was sold or transferred during the marriage to buy a second home, it’s not as simple as saying that the second house is joint property subject to division entirely as marital property. Instead, an analysis must be performed to determine if a separate property interest was maintained or can be carved out or traced back to the original home. Complicating the situation a bit more, any appreciation in value in the first house could be considered marital (assuming the parties did not enter into a premarital agreement or prenup). So, in this crude example, the first house has components of both separate and joint property and the second home has components of joint property and any sole or separate property interest that can be carved out from the first property. The same principles hold true for all marital assets

 

What about Assets I brought into the Marriage or an Inheritance Received during the Marriage?

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During the divorce process the court will consider whether items of property or assets are individual (i.e. sole or separate) property or whether the items are considered marital property. Parties will benefit when they retain a lawyer to assist them in tracing assets and proving up separate property interests.

  • A lawyer who can carve out or protect a separate property interest is extremely valuable especially in cases where the property, cash or assets may have been commingled or combined with other assets.
  • The ability to trace assets or large financial transactions is critical to establishing property as separate property.
  • Once a court determines property to be separate, it is no longer up for discussion in the division of other marital assets.
  • Oftentimes, a party had financial assets or a retirement plan going into the marriage or may have received a gift or inheritance during the marriage. If properly protected and asserted through the divorce or legal separation proceedings, these assets are no longer in harm’s way of being the subject of the court’s division of martial property.
  • Separate property interests can be difficult to determine and the burden is on the party asserting a separate property interest to prove that the asset in question is actually separate property. In other words, property is not, by default, considered sole or separate.

A divorce or legal separation action typically covers a variety of issues from the division of marital assets, spousal maintenance, parenting time and child support, and the division of marital debt. With the complexities and intertwining of all things financial, having an experienced attorney to advocate for your financial position makes all the sense (and dollars) in the world.

Trying to leave an asset or property interest out of your divorce proceedings is a very bad idea. Really bad. Problems are created when parties fail to include an asset or debt as part of the initial divorce. If hiding an asset is intentional or fraudulent, the responsible party may be subject to paying the attorney fees and costs of the other party spent in recovering their portion or interest in hidden or concealed joint or marital property. On the other end, if a party neglects to request division of a particular asset, the party may be time-barred from bringing new issues back to court unless those issues involve the enforcement of an order or orders related to children.

Consult an experienced family law attorney to protect your property or to contest the classification of property as separate or joint assets of the marriage.

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