Who Determines How Assets Are Divided In A Colorado Divorce?

Who Divides Assets in Colorado?

The shortest answer regarding “who” actually divides property is this: the Court tries to let you and your spouse work out an arrangement that is equitable to both parties. In Colorado, Courts require mediation before anyone sets foot in a courthouse for their “Final” or “Permanent” Orders Hearing. This is because the Courts understand that out of everyone in the world, you and your spouse know your means, abilities, and desires the best. It is easy to think any property division should simply just go down the middle at a 50/50% split. But equitable does not always mean fair. The Courts have every right to determine a settlement is not equitable to both parties and ask that the parties attempt to do it over again with some instruction from the Court. That’s why it’s important to be represented by an attorney. We can determine the best equitable outcomes for you as well as discuss other options based on goals and desires. If an agreement cannot be reached, the Court will step in to allocate property.

Think About What Kind Of Property Do You Have

Do you own a home? An investment account? What about credit card debt? When did you purchase that home? Was it before or during your marriage? What money have you used to pay its mortgage? Your attorney will go through these questions with you and the reason for that is because Colorado is called an Equitable Distribution State. That means – when you purchased something 20 years before your marriage, and you still have that item or account today—that is probably still your separate property. Items you own or trusts you were given before the marriage do not become part of the marriage unless certain factors are met. Here at Modern Family Law, we’re able to walk through your assets and items to determine if they are marital (purchased during the marriage or assumed into the marriage) or separate property (all your own.) Even if you have something you obtained prior to marriage, like an investment account, there may be gains or losses during the marriage that need to be assessed when factoring property allocation in a dissolution.

What Do Courts Consider When Dividing Property?

Colorado follows C.R.S. 14-10-113 to divide property. A Court is asked to evaluate property based on the following factors:

1. The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

2. The value of the property set apart to each spouse;

3. The economic circumstances of each spouse at the time of the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time; and

4. Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.

I’m Not On The Loan or Deed. Is the House Mine Too?

Colorado’s Equitable Distribution laws mean that when either spouse purchases property during the marriage – regardless of whose name its under – it still belongs to the marriage. There are certain exceptions to this rule. Gifts from one spouse to the other during the marriage can be classified as separate property under CRS 14-10-113(2)(a).  Gifts from friends or family, or “bequests, devises, descent” or inheritance are not marital property. However, there are times when a spouse “co-mingles” a property and it becomes “assumed into the marriage.” Your attorney is there to determine if there has been co-mingling or an assumption into the marriage, and if so, how to proceed.

Ultimately, Colorado recognizes that spouses often have different roles in the marriage, but that these roles serve important purposes. Homemakers save money on childcare and upkeep home maintenance. Breadwinners contribute to future plans such as retirement accounts and real estate purchases. Both are important roles, and both have made sacrifices for the sake of the other. Therefore, when Colorado Courts consider how to divide property, it is looking for an equitable result. That does not always mean an even split. That also does not always feel fair. It is important to speak to your attorney on the reasons why Courts award certain property one way or the other to understand the true fairness and equitability behind the Court’s motivations.

Colorado is a No Fault State

Regardless of the actions or misconduct, either of you have performed during the marriage – that will not have any impact on how the Court allocates your property. If a spouse leaves the home before or after a divorce was filed, that in no way means that spouse has given up a right to claim portions of that property or the contents inside. While fault-based divorce states still exist, Colorado will not hear allegations of adultery, abuse, or other forms of fault for the sole purposes of property allocation.

Property Acquired During a Divorce Is Still Marital

Under In re Carruthers, property acquired after marriage, but before final dissolution is considered marital. 577 P.2d 733 (Colo. Ct. App. 1977). This can be frustrating for people who are trying to move on with their lives. At Modern Family Law, we understand the desire to move on and so we work with our clients to help them understand their options when considering purchasing property before dissolution is final.

Can Separate Property Still Be Considered Marital?

Yes. Separate property can still be considered marital. Under In Re Marriage of Campbell, if the property was acquired either before the marriage, then a marital portion may exist if “its present value exceeds its value at the time of the marriage or at the time of the acquisition if acquired after the marriage.” 599 P.2d 275 (1979). This means, if there are gains in certain kinds of properties like homes, investments, or retirement accounts, your spouse could still be entitled to the gains during the marriage. There are tools that can help protect this from occurring, such as pre-nuptial agreements or strategies. It is important to speak to a family law attorney about your separate property interests if you are even contemplating marriage. Sometimes these properties can also be worked out through post-nuptial agreements as well, even if the marriage is not broken.

Does Property Division Impact Spousal Support Awards?

Yes. Separate property can still be considered marital. Under In Re Marriage of Campbell, if the property was acquired either before the marriage, then a marital portion may exist if “its present value exceeds its value at the time of the marriage or at the time of the acquisition if acquired after the marriage.” 599 P.2d 275 (1979). This means, if there are gains in certain kinds of properties like homes, investments, or retirement accounts, your spouse could still be entitled to the gains during the marriage. There are tools that can help protect this from occurring, such as pre-nuptial agreements or strategies. It is important to speak to a family law attorney about your separate property interests if you are even contemplating marriage. Sometimes these properties can also be worked out through post-nuptial agreements as well, even if the marriage is not broken.

Modern Family Law

Modern Family Law’s team of experienced family law attorneys takes a compassionate approach to the practice of family law. Using innovative technology to create an effective and efficient process for our clientele, our attorneys approach each case as a collective effort to find the best long-term solutions for each family. Our attorneys currently practice in Colorado, California, and Texas. Click the following link to view all of our family law locations. For more information please give us a call or fill out a short form online to sign up for a free consultation today! Let us make a positive difference in your life.