Dissolution of a marriage can be as logistically difficult as it is emotionally difficult. This is particularly true when the divorcing spouses are unable or unwilling to divvy up the assets and debts they accrued during the marriage. Recognizing that this is the case for just about all divorcing couples, Colorado’s laws are designed to step in and mediate the dispute.
Colorado follows the principle of equitable division, meaning the property will be divided equitably. However, this does not necessarily mean that the property will be divided equally. What is equitable may not be actually equal. There are, of course, numerous factors that are taken into consideration when the division is made.
First, it helps to know what property is actually divisible and what is not. Property that is acquired during the course of the marriage – regardless of which spouse acquired it – makes up the marital estate. Property here is not limited to physical items such as houses, cars, appliances, etc. It includes assets such as stocks, bonds, checking accounts, and retirement plans. It also includes debts, such as mortgages, car loans, liens, and other indebtedness. Thus, marital property encompasses pretty much anything of value – either positive or negative – acquired by either spouse through the marriage.
There are, of course, exceptions for certain types of property. For example, inheritances are usually considered separate property, that is they belong to the spouse to whom they were given and are not considered part of the marital estate. As such, upon dissolution of the marriage, the inheritance would not be included in the marital estate that would be divided up. In the situation, however, where the inheritance assets are commingled with the marital assets, like if monies are deposited in the joint checking account and used to benefit both parties, the inheritance may no longer be considered separate property and thus be susceptible to being divided upon divorce.
A court deciding how to equitably distribute the marital estate is required by the law to look at all relevant factors. Those factors include each spouse’s contributions to the marital property (including if one spouse cares for the home), each spouse’s economic position as of the time the division would take effect, and separate property.
Even though the couple has petitioned to divorce and divide their assets, the court can still consider assets that are acquired before the marriage is officially dissolved. Similarly, property obtained after the dissolution cannot be considered, for example, in subsequent requests for additional hearings, etc. The division of the marital property will also be a factor in determining if a spouse gets maintenance and the amount of that maintenance. If a spouse is already receiving a substantial portion of the estate, they may not have as strong of a position to seek maintenance.
As always, if you are facing a divorce and will need to have the court decide the distribution of the property for you, it is vital to have knowledgeable counsel with you every step of the way. Carolyn Duncan is that counsel who can guide you and also advocate for you to get you the most equitable distribution of the assets possible. Contact her today for more information.