Who Gets What in a Divorce?
Just as the physical and emotional separation involved in a divorce can be taxing, so too can be the process of separating the property and assets a couple acquired during their marriage.
If the parties can’t reach an agreement as to the division and distribution of their property, the court will do it for them. The law governing property and asset division in Colorado is often complicated and disputes over property can be contentious, requiring a divorce lawyer who fully understands the principles that determine who gets what when a marriage ends.
What is Property Division in Colorado?
When property is divided in a Colorado divorce, the first step is determining what assets are “marital property” and which are “separate property.” Only marital property is subject to division and distribution in a divorce.
Generally, separate property are those assets each spouse had at the time they got married as well as property one spouse obtained by gift or inheritance during the marriage.
Marital property is whatever was acquired during the course of the marriage, including the increase in value or appreciation of separate property during the marriage.
“Equitable Distribution” of Marital Property in Colorado
Marital property in a Colorado divorce is divided by using a legal principle known as “equitable distribution.” It is important to understand that “equitable” does not mean “equal.” Rather than simply dividing property 50/50, Colorado courts will consider a number of factors in determining how to fairly and equitably distribute a couple’s property.
One factor a court will not consider as part of its analysis is marital misconduct.
Specifically, the following considerations go into a judge’s determination as to how property is to be divided between the spouses:
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 given to each spouse in the property award;
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.
How is the Marital Home Divided?
For many, if not most couples, their home is the single largest asset they own, and one that is often of great emotional value in addition to its economic value.
In dividing the value of a marital home, a Colorado court will attempt to determine the amount of equity in the property and divide that amount between the parties, with adjustments and buyouts made if the home is to be retained by one of the spouses.
The equity is the market value of the home, minus any liabilities against the property, such as a mortgage, taxes, or home equity loans.
Equity in a marital home can be divided in one of three primary ways:
The spouses sell the home and divide the proceeds
One spouse retains ownership, refinances the home, and “buys out” the other party
When children are involved, the custodial parent remains in the home with the exclusive use and possession for a certain period of time (until the kids go off to college, for example), then either buys out the other spouse or sells the home and divides the proceeds.
What can make asset division tricky and complex are issues relating to the proper valuation of property, the allocation of debts and liabilities, and providing for the distribution of such assets as pensions, retirement accounts, profit sharing plans, and the like.
Ensuring that each spouse receives a fair distribution of marital property that reflects the proper value of that property and complies with the law is a task that no one going through a divorce should attempt without sound guidance and counsel from an experienced Colorado divorce attorney.
Also read: Choosing a Colorado Springs spousal maintenance attorney to preserve your best interests.