November 14, 2017

How is our property divided in my divorce?

Divorces not only split relationships but the couples’ property as well. The division of property is one of the major issues in a divorce case. Property includes tangible items, as well as the intangible, and more importantly debts. This blog outlines the statute that Judges follow in order to determine the disposition of property. The Colorado Revised Statute 14-10-113 lays out the rules for the division of property.

Relevant Factors

The Court considers a few factors in determining how property is divided. First and foremost, the statute clearly states that “marital misconduct” shall not be a part of the Court’s decision. The Court will however consider the following factors under 14-10-113(1):

  1. The contribution of each spouse to the acquisition of marital property. The Court also considers the contributions by a “homemaker” spouse.
  2. The value of the property set apart to each spouse.
  3. The economic circumstances of each spouse at the time of the property division.
  4. Any increase or decrease in value of the separate property of the spouse during the marriage or the depletion of separate property for marital purposes.

The statue is written broadly like this so that it can be flexible and even creative with the division of property.

Marital Property v. Separate Property

The other big section in this statute discusses what is marital property and what is separate property. The statute chooses to define what is considered separate property in order to define what is marital. Separate property according to the statute is the following:

  1. Any property acquired by gift, bequest, devise, or descent;
  2. Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descendent;
  3. Property acquired by a spouse after a decree of legal separation; and
  4. Property excluded by valid agreement of the parties.

Separate property is not considered in the division of property. As a lawyer I always create a spreadsheet of marital sets in order to determine an equitable division. If property is considered separate, it does not go onto the marital spreadsheet for consideration.

One of the many problems parties have regarding separate property is the action of co-mingling it with separate property. A good example of this is if one spouse acquires a house prior to the marriage and then later marries. Is that property is considered separate? If the parties move into the house and start improving the house, or both make payments on the mortgage, the parties consequently have co-mingled the property making it marital. In situations like this, the Court will look at the value of the property at the time of marriage and at the time of divorce and consider the difference in value as the marital equity. Any equity acquired prior to the marriage may be considered separate.

Examples of Property Divided by the Court

There are some rather obvious pieces of property that are divided by the Court, while others are not. Here are examples of some property to keep in mind that are divided during the divorce:

  1. Real property/marital home
  2. Vehicles—cars, motorcycles, mopeds
  3. Personal property—clothing, jewelry, other personal effects
  4. Home Appliances—TVs, washer and dryers, kitchen appliances
  5. Retirement Accounts—Military retirements, 401ks, IRAs
  6. Stock and Bond Accounts
  7. Life Insurance Policies
  8. Debts—Secured and Unsecured
  9. Just about anything else you can think of!

Equitable not Equal

The Courts do not necessarily equally split property in a divorce. Instead, the Judge will use the standard of equity. In other words, what the court considers fair. This concept helps explain why the factors stated above fell as though they are broad. The Court does not want to limit itself in how it can divide property. The Court often uses the language “fair and conscionable” when making a ruling in the official Decree. Keeping that concept in mind can help the division of property in your own case.

Christopher Nicolaysen is a Family law Attorney who practices in Colorado Springs, CO. He graduated from Denver Sturm College of Law, and has been practicing law for several years now. Christopher Nicolaysen is passionate about helping you solve your family matters. Learn more about his experience here.

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