In any divorce or legal separation proceeding, there are three main categories of issues that need to be addressed.
The first is spousal maintenance, also known as alimony. Is maintenance appropriate in the matter? If so, what amount should maintenance be set at, and for how long should maintenance be paid from one party to the other?
The second category is essentially everything having to do with the parties’ children. If there are no minor children, then almost always there is nothing to address on this front. However, if there are minor children from the marriage, then issues like custody, parenting time, decision-making responsibility, child support, etc., will all need to be addressed by the Court.
The third category is the division of property between the parties. Colorado Revised Statute 14-10-113 addresses disposition of property in a proceeding for dissolution of marriage or a proceeding for legal separation in the State of Colorado.
One thing to remember here is that Colorado is a no-fault state, which means the Court does not consider any marital misconduct when dividing the marital property between the spouses. The statute states that a Court is to divide the marital property between the spouses in such a way as the Court deems fair after considering all relevant factors. Those factures include the following:
(a) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as a homemaker;
(b) The value of the property set apart to each spouse;
(c) 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
(d) 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.
One of the questions we are asked a lot when representing clients in dissolution of marriage proceedings is “what is marital property”? Colorado Revised Statute 14-10-113 addresses this as well. Essentially, “marital property” means all property acquired by either spouse throughout the duration of the marriage except:
(a) property required by gift, bequest, devise, or descent. For example, if your grandma passed away during your marriage and left you the family farm in her will, that would not be considered marital property for the purposes of equitable property division during a divorce.
(b) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent. So, if you bought a motorcycle and paid for it in full before the beginning of your marriage, and then traded it straight up for a different motorcycle during your marriage, the motorcycle that you traded for would not be marital property, but would be your sole and separate property.
(c) Property acquired by a spouse after a decree of legal separation. If you acquire property after your decree of legal separation or decree of dissolution of marriage is entered, then it is yours and is not marital property.
(d) Property excluded by valid agreement of the parties. If you and your spouse entered into a prenuptial agreement, and that agreement excluded certain property from being classified as “marital property” in a subsequent divorce proceeding, then that property would likely not be considered by the court as marital, as long as the agreement was valid.
Another thing to consider is that marital debts will have to be split up as well during a dissolution of marriage proceeding. The balances on car loans, credit cards, student loans, etc., all will need to be divided in a fashion that the Court deems equitable. On this note, it is important to know that equitable means fair, equitable does not mean equal.
Overall, property division in a dissolution of marriage or legal separation proceeding can be somewhat straight forward and simple, or very complicated. Sometimes parties don’t have a lot of marital assets, have only been married for a short period of time, and/or mostly agree upon how the marital assets and debts should be equitably divided.
Other times, things can be contentious and difficult. Maybe the parties have high value assets and debts and can’t agree on how to split them up, or maybe the parties are just no longer getting along and have trouble coming to an agreement on anything. If the parties cannot seem to agree on their own, the Court will almost always order mediation. If mediation is unsuccessful, then eventually, if the parties cannot settle the case, the issue of disposition of marital property will be dealt with in a contested hearing, and a Judge will make the determination as to how everything should be split up. While it is almost always best for the parties to agree on how to split up the marital property outside of the court, if one or both parties is being unreasonable, sometimes there is no other choice but to let a Judge decide how everything will be divided. However, there is always a fair amount of risk that goes along with having a stranger in a black robe divide up almost everything you own.
If you are considering divorce or are currently in the midst of a dissolution of marriage proceeding or a proceeding for legal separation and have questions about the division of property in your case, please feel free to reach out to us, The Attorneys of Highlands Ranch. We are experienced family law attorneys, and we are here to help. Call us for a free consultation.