Wondering if a Colorado Springs judge will divide the property in your divorce 50/50? Learn how equitable distribution affects Colorado divorces.
“Equitable Distribution” of Marital Property Is Not The Same As Equal Distribution
A common question asked by divorcing couples in Colorado Springs is whether their property, possessions, assets, and debts will be divided in the divorce 50/50. The short answer is that it can be 50/50 – if both spouses agree on the terms. But if a couple can’t agree on how to value and distribute all the property and assets accumulated over their years together, a judge will do it for them. And while the principle that El Paso County judges use to divide marital property is called “equitable distribution,” that doesn’t mean “equal” distribution and may result in a final settlement far from 50/50.
Marital Property vs. Separate Property
The first thing couples need to understand about property division in a Colorado divorce is that not all property owned by the spouses will be subject to equitable distribution.
In a divorce, property and assets are put into two distinct classes: “marital property” and “separate property.” Marital property is everything that either one or both spouses acquire during their marriage. Separate property is generally those assets each spouse had before or when they got married. This could be anything from a record collection to a vacation home. Separate property can also include any inheritance or gifts a spouse receives during the marriage. However, any increase in value or appreciation of separate property while married is generally considered marital property.
El Paso County judges will only divide and distribute marital property in a divorce, not separate property. One of the best ways to ensure you receive your fair share is to locate documents regarding finances, assets and liabilities before filing for divorce.
“Equitable Distribution” of Marital Property in Colorado
Once the parties or a judge determines the universe of marital property, a legal principle called “equitable distribution” controls which spouse will get what assets.
It is essential to understand that “equitable” is not the same as “equal.”
Equitable does not mean a 50/50 divorce decree. Instead, Colorado law takes into account several factors to determine how a couple’s assets can be fairly and equitably distributed. And, contrary to what an innocent spouse may think, marital misconduct is not a factor in the judge’s decision on how to divide the property.
What Factors Does A Judge Consider When Deciding How to Divide Marital Property?
Colorado divorce laws state that a family court judge will look at the following factors in determining how to split marital property and assets between the parties:
- the contribution that each spouse made to the acquisition of marital property, including contributions of a spouse as a homemaker;
- the value of the property each spouse receives as part of the property award;
- the economic circumstances of each spouse at the time the property division is to occur, including awarding the family home, or the right to live there, for reasonable periods, to the spouse with whom any children reside most of the time; and
- any increases or decreases in the value of the spouse’s separate property during the marriage or the depletion of the separate property for marital purposes.
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Does a Judge Divide the Marital Home In a Divorce 50/50?
For many, if not most divorcing couples, their home is the single largest asset they own; it is significant not only for its monetary value but also for its emotional meaning. When dividing the value of a marital home, a Colorado Springs judge will determine the amount of equity in the property and split that amount between the spouses, with adjustments and buyouts made if one of them will keep the home. Equity consists of the home’s market value minus any liabilities on the property, such as mortgages, taxes, home equity loans, or other liens.
A Colorado judge can divide the marital home’s equity between the spouses in one of three ways:
- the divorcing couple sells the house and divides the sale proceeds.
- one spouse retains ownership and “buys out” the other spouse.
- if the couple has children, the custodial parent stays in the home with the exclusive use and possession for a specified time (such as until the kids go to college), then either buys out the other spouse’s interest in the house or sells the home and divides the proceeds as stipulated in the divorce decree.
What can make property division particularly tricky and prevents a 50/50 divorce settlement are issues relating to the proper valuation of property, the allocation of liabilities and debts, and the distribution of such assets as pensions, retirement accounts, and profit-sharing plans.
Fair Is Fair: How To Ensure You Get What You Are Entitled To In Divorce
Even though a judge won’t necessarily divide assets in a Colorado divorce 50/50, ensuring each spouse receives a fair and equitable share of marital property is critical. Having an experienced Colorado Springs divorce attorney on your side can ensure that you will leave your marriage with all of the assets to which you are entitled so you can move forward with security and confidence.