The process of dividing assets and property during a Colorado divorce proceeding can be confusing and frustrating. If you’re not aware of the distinctions between separate property and marital property you could be taken advantage of during a dissolution of marriage action. This article by Littleton Divorce Attorney Bonnie Shields will help you understand your rights to property during a divorce.
Property Division During Divorce
Colorado courts are given a great deal of discretion when it comes to dividing property during a divorce suit. Generally speaking, the court will divide your property based on what it determines is “equitable.” However, there are some limitations on the court’s discretion. The most important limitation is that a court can only divide marital property, and cannot touch each party’s separate property. This distinction is set out below.
Aside from only being able to divide marital property, the court’s “equitable division” of property is guided by a series of statutory factors that the court should consider to keep the division of property somewhat fair. These factors are found in Colorado Revised Statute §14-10-113 and include, but are not limited to:
- The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
- The value of the property set apart to each spouse;
- The economic circumstances of each spouse at the time 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
- 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.
What is Separate Property?
A court cannot give your separate property assets to your spouse during a divorce proceeding, however the court can consider the amount of separate property each party has when it determines how the marital property should be divided. So what is separate property? Colorado Revised Statutes §14-10-113 provides the following list:
- Gifts & Inheritances (regardless of whether received during the marriage);
- Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift or inheritance;
- Property acquired by a spouse after a decree of legal separation;
- Property that is agreed to be separate by a valid marital agreement; and
- All Property Owned Prior to the Marriage.
It’s important to note that while all of these items are separate property, any appreciation or income that comes from these assets is marital property. A proper calculation should be made regarding the value of separate property at the time of the marriage so that as much of your separate property can be reserved for you.
What is Marital Property?
The court has broad discretion to divide marital property assets. The marital property assets are everything that doesn’t fall into the category of separate property. This means that virtually all assets acquired after the date of your marriage are marital property, even if you paid for the asset by yourself and titled the asset in your name alone. Likewise, all appreciation and income from separate property assets are also deemed marital property. If you want to exclude a piece of property from division because you purchased it yourself you must obtain a valid marital agreement that designates the property as separate.