LAW OFFICES OF KELLI J. MALCOLM
BRINGING LAW TO THE PEOPLE
States take different approaches in determining to whom the property belongs when it is acquired during the marriage. Obviously, the property that one acquired before marriage belongs to that person.
However, any increase of separate property value is considered marital property and is subject to division. What happens to a spouse’s property upon divorce in Colorado?
Generally, there are two practices states may follow in respect to the marital property. The first is “community property.” The other is “separate property,” or “equitable distribution.” Community property suggests that everything acquired during the marriage is to be shared equally in the case of divorce.
Meanwhile, equitable distribution calculates who gets what based on a few factors, including:
- The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as a homemaker;
- The value of the property set apart to each spouse;
- The economic circumstances of each spouse at the time the property division becomes effective, including the desirability of awarding the family home or the right to live therein for a reasonable amount of time to the spouse who has greater custody of any children; and
- Any change in the value of the separate property of the spouse during the marriage or the diminution of separate property value for marital purposes.
Colorado marital law follows an equitable distribution. Simply put, this means that marital property is divided equitably. The default rule in Colorado is that marital property is divided 50/50.
If one party believes they are entitled to more, it is their burden to prove why. For example, if one party used the value of the separate property to acquire a marital property, it shows they contributed more to the marital property and have a claim to more than the default 50% of it.
On the other hand, if a separate property’s value increases during the time of marriage, such an increase is considered marital property. If separately owned land increases in equity, the extra value is to be shared 50/50.
Spouses’ debt is also shared upon divorce. Regardless of whose name in on the credit card, any debt incurred during the marriage is split in half amongst the two spouses.
Separate vs Marital Property
In a Colorado divorce proceeding, the first thing the two parties should do is organize everything into a separate property category, and a marital property category.
Whatever is deemed marital property will be left for the court to divide on equitable terms. This includes everything acquired after the marriage and prior to divorce, even if the title to the property is in one name or in co-ownership.
Excluded from the marital property are:
- Gifts or inherited property
- Property acquired by the exchange of pre-marital separate property,
- Property acquired by the exchange of property acquired by gift,
- Property acquired after a decree of legal separation, and
- Property excluded from division by agreement of the parties.
Everything else is assumed to be marital property, which in Colorado is divided equitably.
It is a daunting task to record everything acquired prior to and during the marriage. To start, draft a list of everything regardless of whether it is in one name or both. Start with large titles such as bank accounts, real estate, investment portfolios, vehicles, insurance plans, inheritances, furniture, and valuables.
From there, try tracing back who purchased what and when, and then try placing a monetary value on each asset. For some of these, an assessor may be helpful. For instance, the more accurate a value put on real estate the better, so a comparative market analysis will be helpful.
The Kelley Blue Book may be a good resource to assess the value of your vehicles.
How the Court Divides Marital Property
The court has the power to divide marital property as it deems fit. During this determination, the court does not consider marital misconduct but only divides property in proportion to what the court seems is just.
The division of property is dependent on the divorcing couple’s unique circumstances. After considering the facts, the court assesses the distribution factors described above and shall do its best to divide the property in an equitable manner.
How to Know You Receive an Equitable Share
Given the factors above, one should work with their lawyer to ensure they have first secured all their desired separate property. When it comes to marital property, one should look to hire a lawyer who is experienced in protecting their clients’ property rights.
A strong counsel will help accurately calculate contributions to the marriage regardless of whether one earned greater or lesser income than their spouse.
Contact the Law Offices of Kelli J Malcolm Today
Divorces are a tough stage in life. It is best to ensure your property rights are protected. If you are considering divorce and need assistance in protecting your assets, you need an attorney with experience in the division of property in Colorado. Contact the Law Offices of Kelli J Malcolm at 720-261-7287 for a free 30-minute phone consultation.