Colorado Springs Asset Division Lawyers

Helping You Seek Fair Distribution of Property at Separation

Asset division is one of the most important aspects of divorce. At Drexler Law, in Colorado Springs, we have the experience and knowledge to protect your property, the well-being of your family, and help you seek a fair outcome. There are many complex laws involved, so having the help of an experienced Colorado Springs divorce lawyer can help you prevent problems down the road.

What Does Equitable Division Really Mean?

Unlike community property states where all marital property is divided equally, Colorado is an equitable division state, meaning property is divided fairly — not necessarily equally. Equitable seems far too close to equal for most people, so the common misconception is understandable. Equitable can be defined as fair and impartial, which is a more acceptable definition. The court will review the relevant circumstances and the established case law when determining a fair and impartial allocation of marital property.

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 follow a rule of thumb in which assets are divided equally in proportion to income. This is a defective assumption that ignores the realities and complexities of marital property; however, the analysis is useful when exploring settlement positions and whether there are valid arguments and factual support for a different allocation.

Joint vs. Marital Property

Not all property is necessarily joint or marital property.

Instead, property falls into two main categories:

• Sole or separate property belonging to one party or the other
• Joint or marital property belonging to both parties

Only the second category is divisible by the court. However, whether an item can be carved out as sole or separate depends on many factual and legal arguments. The first category of property is also referred to as a Separate Property Interest. It is possible, and often encountered, to have a claim of marital property in an asset that started out as separate property.

For example, if a spouse purchased a house before the 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 simply because it was acquired after the date or marriage. Instead, courts must determine if a separate property interest was maintained or can be carved out or traced back to the original home. As you can imagine, this can be a document intensive effort. The burden to establish a separate property interest, regardless of the form of property, is on the party claiming the separate property interest.

Also common are increases in the value of separate property (appreciation). In the above example, if the same spouse had maintained the separate home but the home increased in value after the date of marriage, Colorado law (in the absence of a marital agreement to the contrary) would allow division of the appreciation in value between the parties with the first spouse retaining the home but left with the task of buying out the second spouse or the second spouses share of the appreciation. The same principles hold true for all marital assets, not just real estate or real property.

Consider the engagement ring a husband provides to his wife. The law is well-established that the ring should be considered pre-marital property of the wife, as the ring was exchanged for the promise to marry the husband, which she did (let’s ignore now the situation where wife calls off the wedding but keeps the ring). But what if the diamond ring appreciates during the term of the marriage? What if the husband bought the wife a new ring as an anniversary present but purchased it with the joint credit card that had not been paid off by the date the divorce was finalized? And then what if wife took her old engagement ring to the jeweler to have it set in a new setting with other various stones that sparkle from any distance?

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

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. 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 has financial assets or a retirement plan going into the marriage or 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 divided as marital 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.

Why Hiding Assets is Risky

Trying to leave an asset or property interest out of your divorce proceedings is generally a very bad idea. No kidding; it can be really bad.

If hiding an asset is seen as intentional or fraudulent, the responsible party is liable for paying the attorney fees and costs of the other party spent in recovering their portion or interest in hidden or concealed marital property.

On the other end, if a party neglects to request the 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.

Contact Drexler Law if you are considering whether an asset must be disclosed or if you believe the other party is concealing assets. Asset location and forensic investigation are key in tracing and discovering assets. If you believe money has disappeared and there isn’t a logical explanation, call us immediately because waiting could mean the difference between finding an asset now or spending serious money later to find it.