Marital Property: What’s Mine Is Not Yours. Or Is It?

Divorce is usually not an easy decision, and hardly ever a simple process. When it comes to division of assets, what constitutes martial property is one of the first in questions that must be asked. Colorado is a separate property state. This means that in the case of a divorce, all assets will be divided into one of two categories: marital property or nonmarital (separate) property.

In Colorado, only the marital property and debt can be fairly and equitably divided. Nonmarital, or separate, property is most commonly property that was acquired prior to the marriage. However, property acquired during marriage can be classified as nonmarital property if it was inherited or gifted specifically to one spouse.

It often seems apparent what should and should not be marital property. However, there are some common ways in which spouses intending to buy or create nonmarital property for themselves get it wrong.

On the example of homes, if a spouse purchases a home in in their name only, he or she may think it is safe to assume that the home will be theirs to keep in the event of a divorce.  This is not the case.  Property purchased during the marriage is marital property regardless of who’s name the property is titled in.  Title does not control in Colorado domestic relations court; timing does.   Unless the property is awarded to one spouse in a valid marital (postnuptial) agreement, found to be meet the criteria for a valid intra-marital gift, property purchased during the marriage by either spouse is marital property subject to division in a divorce.

Likewise, all bank accounts opened during the marriage are marital property subject to division in a divorce unless exempted by valid marital agreement.  These are all things to consider before taking a stand on what belongs to you and what belongs to your spouse. Occasionally couples decide to continue managing or owning assets together after they are divorced, however this creates a separate set of problems and is typically not advised.

Appreciation, the increase of  value of separate property during a marriage, is also martial property in Colorado subject to division. This is best explained by way of hypothetical:  Let’s say that prior to getting married Wife owned a house worth $300,000.  Wife is married to Husband for 10 years and then gets divorced.  The value of Wife’s house at the time of her divorce is now $500,000.  Under these circumstances $200,000 of the value of Wife’s home would be marital property subject to division between both spouses in the divorce.  Factors such as Husband’s contribution to maintenance and/or preservation of the asset would be relevant to the question of whether a 50/50 split of the $200,000 is “fair and equitable”, however it would not create any more or any less martial property in the value of the home. The remaining §300,000 stays Wife’s separate property and is not divided in the divorce.  Contributions by Husband to the maintenance of the property and payment of bills may be accounted for in other ways, but it is rarely done so by awarding him, the non-titled spouse, an ownership interest in the home.

A skilled family law attorney will analyze the division of a particular martial estate free from emotion and opinion about things like fault that tend to skew clients’ judgment, and which frequently prevent divorce litigants who do not have attorneys from ever making any real progress towards wrapping up and ending their marriage.

A divorce is not a simple, straightforward process. At Boal Law Firm, we strive for the best possible outcomes for our clients. With skilled, experienced representation and individualized care, we can help you navigate the complex, often perilous process of your divorce in Colorado domestic court and get you the outcome that you deserve. Visit our contact page for information on scheduling a consultation to today.

2018-07-17T19:16:51+00:00May 19th, 2018|Blog, Child Custody, Divorce|0 Comments