An important component of the divorce process is dividing the marital property and debts, but what constitutes marital property? Marital property is any property (or debt) acquired during the course of the marriage except:
- Property acquired by gift, bequest, devise, or descent (inheritance);
- Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
- Property acquired by a spouse after a decree of legal separation;
- Property excluded by valid agreement of the parties.
Property acquired during the marriage is marital regardless of how it is titled or financed unless it meets the above exceptions. This means that even if your name is not on your home or on the mortgage, the home is still likely marital property if it was purchased during the marriage. Taking marital property during the marriage and keeping it in a separate name or bank account does not create separate property. In addition separate property can be converted to marital property if it is comingled with marital property.
Comingling occurs when a spouse takes separate property and mixes the separate property with marital funds. If the separate property cannot be easily traced back to its separate source then it will be considered to have been comingled with marital property and as a result be considered marital property and is essentially gifted to the marital assets. A common issue of comingling is when a spouse sells a home owned prior to marriage and puts some or all of those funds into a home that is purchased during the marriage. If the other spouse contributes funds as well those previously separate monies have now been comingled and are likely to be considered a gift to the marital estate.
The most common variety of separate property is property that was owned or purchased prior to the marriage. However, an increase in value to separate property during the marriage is considered marital property. For example if a party owned a home prior to marriage and during the course of the marriage the house went up $30,000 in value, the $30,000 increase in value would be considered marital property and is subject to division in the divorce. The same is true with retirement accounts, 401k’s and pensions. If a party’s individual retirement account was worth $10,000 prior to getting married and is worth $25,000 at the time of the divorce, the difference of $15,000 is considered marital property and is subject to equitable division during the divorce. The increase in value can be from further contributions to the account or interest earned on the account or both.
Marital debts can be just as important, or more important, than marital property. Just like marital property, marital debts are those debts acquired by either party or both parties, during the marriage. This can include car loans, credit cards, student loans, and any other debt, regardless of whose name is associated with it. The responsibility for the marital debts will be allocated between the parties in the same manner that marital property is divided.
Colorado is not a “community property” state. In “community property” states, all of the property owned by the parties prior to the marriage is included in the marital estate and is therefore subject to division. As described above, a Colorado divorce court will only divide the assets and debts acquired during the marriage, and won’t divide separate property acquired before the marriage. While Colorado courts lack the authority to divide that separate property, the Court is permitted to consider the value of any separate property owned by either party in determining what is a fair distribution of marital property.
Marital property and debts are divided equitably without regard to marital misconduct, in such proportions as the court deems just after considering all relevant factors including:
- 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.
Equitably does not mean equally; rather it means fairly and justly. Sometimes an equitable division will be an equal division of marital property, but the court is not required to create a perfectly equal division of assets. Routinely what is a fair division of assets and debts in the eyes of the Court is not an equal division. This is particularly true where one party earns significantly more than the other party or where one party has substantially more separate property than the other.
As part of the property division the court can require the sale or liquidation of marital property in order for it to be divided by the parties. The Court can also require professional valuations be conducted to determine the value of marital property for purposes of dividing the property appropriately.
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