How is Marital Property Divided in Colorado?
Colorado, as a marital property state, follows the principles of equitable distribution, ensuring that the division of property is fair to both parties.
While the road ahead may have its complexities, becoming informed about how property division works in Colorado can help you work through this process with clarity and confidence.
Equitable Distribution in Colorado Divorces
What is equitable distribution?
“Equitable distribution” is a legal term that refers to the just and fair allocation of marital property in the event of a divorce.
In a nutshell, it means that marital property—assets acquired during the marriage—will be divided in a way that the court deems fair. Keep in mind that “equitable” doesn’t always mean an equal 50/50 split. Instead, the court considers the unique circumstances of each case to determine what’s fair for both parties. Often it is also equal.
However, not all property is subject to division in a divorce. There are two main types of property: marital and separate.
Marital property includes assets you and your spouse acquired together during the marriage. Things like your house, cars, savings, stocks, even retirement accounts, and pets.
Separate property includes assets you owned before tying the knot and gifts or inheritances you received during the marriage. In most cases, separate property remains with the original owner. However, this is a more nuanced area or property division (more on this below).
When dividing marital property, the court considers several key factors. For instance, how long were you married? What are your financial needs? What did you contribute to the marriage – financially and otherwise? What about your spouse? What are the future financial prospects for each spouse?
You and your spouse can work together and agree on how your marital property will be divided. If the two of you agree, craft a written Separation Agreement detailing how the property is going to be divided and submit it to the court for approval. The agreement must be fair, and both parties must sign it. If the court approves the agreement, it becomes legally binding.
If you cannot reach an agreement, the court will use the principle of equitable distribution to make a fair division based on your unique circumstances.
Marital vs. Separate Property
Let’s take a closer look at these two property types.
Marital property = the assets and property you and your spouse accumulated during the marriage.
Here are some examples that are typically considered marital property:
- Real estate: house, condo, or land
Vehicles: Cars, trucks, motorcycles, boats, and recreational vehicles
- Financial Accounts: Joint bank accounts, savings accounts, and investment portfolios
- Retirement Accounts: Contributions to retirement accounts, 401(k) plans, IRAs, and pensions
- Stocks and Bonds: Investments in stocks, bonds, and mutual funds
- Business Interests: Ownership interests or shares in businesses, partnerships
- Furniture and Appliances: Household furniture, appliances, and electronics purchases
- Jewelry and Personal Items
- Collectibles and Art: Collections, artwork, antiques, and other valuable items
It is important to note that this list is not exhaustive, and there may be other assets that qualify as marital property depending on the specific circumstances of the marriage.
Pets acquired during the marriage are also considered marital property and may be subject to division.
When it comes to dividing assets, marital property is subject to equitable distribution, meaning the court will work toward a fair division.
On the other hand, separate property is about the assets you brought into the marriage individually and any gifts or inheritances you received during the marriage.
For instance, a family heirloom you inherited from your grandmother or an investment account you had before tying the knot would be considered separate property.
In most cases, separate property remains solely with the original owner and isn’t divided in the divorce.
Now, here’s where things can get a little tricky.
Sometimes, separate property can become “commingled” with marital property.
For example, if you deposited an inheritance into a joint bank account, it could be considered part of the marital estate.
Key Factors That Influence Equitable Property Division
When it’s time to divide marital property in a Colorado divorce, you have a couple of options.
If you and your spouse agree on how to divide your assets, you may be able to skim this next section. The court will typically honor your arrangement.
Can’t find common ground
If you can’t agree on who gets what, the court will make a decision based on several factors.
Factors Weighed In Determining Equitable Division of Assets
When making decisions on property division, the court considers the following key factors:
Length of the Marriage
The duration of your marriage matters. A longer marriage typically means more shared assets and intertwined financials.
Financial Contributions and Needs
Who brought in the income, and who managed the household? The court will look at each spouse’s contributions—financial or otherwise—and their current and future financial needs.
What is your and your spouse’s earning potential in the future? Does either one have limited earning opportunities?
If you have small children, the court may consider who the primary caregiver is and how that impacts their financial situation and housing needs.
Although separate property is (usually) kept separate in a divorce, the court will look at each spouse’s separate property and how it affects the overall division of assets.
Health and Age
Does either your or your spouse have medical needs? Age and health can influence property division, especially if one spouse has significant medical needs or is approaching retirement.
If you and your spouse have reached a mutually agreeable property division arrangement or have a prenuptial agreement in place, the court will take that into consideration.
Note: the court considers and weighs these and many other factors case by case.
The Property Division Process
What are the steps you need to take in this property division process?
It will take some effort to work through the steps. However, if you and your spouse agree, the process can go faster and smoother.
Create a thorough list of both marital and separate property, including real estate, bank accounts, retirement funds, vehicles, and personal belongings. Include any shared debts: mortgages, credit card balances, loans, etc.
Once you have your list, determine the value of each asset. While some items, like bank accounts, have a clear value, others, like real estate or business interests, may require appraisals or expert valuations.
With a clear understanding of your assets, you and your spouse can discuss how to divide them. You can work together informally or with a mediator or an attorney. You are looking for common ground to reach a mutually agreeable arrangement.
Once you’ve agreed on who gets what put it all into a Separation Agreement, this document outlines the terms of property division. You and your spouse must sign the separation agreement.
The signed Separation Agreement is submitted to the court for review. The judge will assess whether the agreement is fair and, if so, will incorporate it into the final divorce decree. Once approved by the judge, the agreement becomes legally binding.
Note: Property division can be complex, especially when dealing with high-value assets or complicated financial situations. It’s always advisable to seek legal guidance to protect your interests.
Q: Can I keep my inheritance in a divorce?
A: Generally, an inheritance received by one spouse during the marriage is considered separate property and is not subject to division in a divorce.
However, there are exceptions.
If the inherited assets become commingled with marital property or are used for the benefit of the marriage, they may be considered part of the marital estate.
Q: How is the family home typically divided in a divorce?
A: The division of the family home can vary depending on the circumstances. Some options include selling the house and splitting the proceeds, one spouse buying out the other’s share, or one spouse continuing to live in the house while the other receives assets of equivalent value.
Considerations like child custody and financial needs often influence the decision.
Q: What happens to our joint debts in a divorce?
A: Joint debts are divided. The court will consider each spouse’s ability to pay and financial circumstances when allocating responsibility for debts like mortgages, credit cards, and loans. The Separation Agreement should include debts as well.
Q: Can we divide our property without going to court?
A: Absolutely. If you and your spouse can agree on property division, you can draft a Separation Agreement outlining the terms. Once signed by both of you, it’s submitted to the court for approval.
Q: What if my spouse is hiding assets during the divorce?
A: Hiding assets during a divorce is both unethical and illegal. If you suspect your spouse is concealing assets, gathering evidence and seeking legal assistance is important. The court has the authority to address hidden assets and ensure a fair division.
As you move forward, consider consulting with a qualified family law attorney who can provide tailored guidance and support based on the specifics of your situation.
With the right knowledge and resources, you can chart a course toward a fair and amicable resolution that allows you and your spouse to embrace new beginnings.
The path ahead may be uncharted, but you have the ability to steer your own course and make informed decisions that align with your best interests.
Disclaimer: This article is for informational purposes only and should not be construed as legal advice. Each divorce case is unique, and readers are encouraged to seek professional legal guidance for their specific circumstances.