Property division can be one of the most contentious parts of a divorce, especially for couples who have high value or a large amount of assets. The process of listing assets can be complicated in its own right, then is followed by the difficult task of dividing the property between the two parties. Enlisting the services of a Colorado Springs divorce attorney is crucial for support during this time.
If you are beginning or currently entering the divorce process, learning what to expect when it comes to property division can help prepare you for the journey ahead. Here we review common questions about the different types of property and how they are allocated by the Colorado courts.
How Is Property Divided in a Colorado Divorce?
The state of Colorado is an equitable division and no-fault state. This means the property is divided between spouses in accordance with a standard that is fair and impartial, but not necessarily equal. This also means that marital misconduct is not taken into consideration when allocating assets.
In order to achieve fair distribution, the court reviews a variety of factors. Each party's economic circumstances, financial, emotional, and physical contribution to the marriage and child custody responsibilities are evaluated to determine individual support needs and advantages. A judge will consider how these circumstances have contributed to the marriage at the time of the divorce, throughout the course of the marriage and how each party may be impacted after the divorce.
For example, if one parent is awarded primary physical custody of the minor children they may be awarded the family home. Or the higher-earning spouse may be responsible for a higher portion of marital debts. If one spouse was the primary homemaker while the other generated most of the income, the judge may consider the homemaker's physical and emotional contributions to the marriage. Again, the goal is to achieve equitable distribution.
Determining Marital vs. Separate Property
The two main types of property taken into inventory during the divorce process are marital property and separate property. Marital property is any asset that was acquired during the course of the marriage except for gifts, inheritance, or property excluded in a prenuptial agreement. Separate property denotes assets that were acquired before the marriage or the exceptions mentioned above.
Even if only one spouse is listed as the owner of an asset, if it was gained during the course of the divorce it is still considered marital. This includes:
- Real estate
- Bank accounts
- Retirement accounts and pensions
- Investment accounts
- Stocks and bonds
- Motor vehicles, boats, etc.
- Club memberships
- Frequent flyer miles
Anything listed as marital property can be divided between spouses. But remember, it is not a 50:50 division, it is an equitable division. The judge may also compare or equate the value of different assets when allocating them. Instead of dividing each item between the two individuals, they may give different items of equal value to each party. For example, instead of splitting the house between the spouses, one could be awarded the home and the other could be awarded cars or bank accounts.
Regarding separate property, each individual retains the property held upon entering the marriage.
The help of an El Paso County family law attorney is immeasurable during this time. They will ask about property that may be overlooked and can help uncover assets that one spouse may be attempting to hide. Their job is to represent you so that you may receive the division you deserve.
How Debts Affect Property Division
Marital debts include any debt incurred throughout the marriage, even if it is in the name of only one partner. Debts, like marital property, are also distributed equitably in Colorado. In some cases, this could mean the higher income earner assumes more of the debt after the divorce. In others, the person who incurred most of the debt could be responsible for a larger portion. It really depends on the specific circumstances. Debts may include:
- Car payments
- Credit card statements
- Medical bills
- Student loans
Debts incurred prior to the marriage remain the responsibility of the individual. Matters may become complicated in situations where one spouse had debt prior to getting married, but refinanced during the marriage. A property division attorney can help you better understand and navigate this undertaking.
How is the Marital Home Divided?
The court will first determine the equity of the home and then divide that amount between the parties. This division is usually allocated in one of three ways:
- The couple may sell the home and share the profit. This share could be 50:50 or could have one party retaining more depending on what is the fairest outcome.
- One party could keep the home by buying out the other. In this scenario, the house would need to be refinanced and ownership would be transferred.
- If children are involved, the court will want to do what is in the best interest of the minors. In some situations, one parent may be allowed to stay in the home for an allotted period of time in order to care for the children and provide them with stability. For example, the custodial parent may retain ownership of the home until the children turn 18. Then the divorcees may be provided with the option to sell and split the profits or one may buy out the other's portion.
The decision of what to do with the home can cause a lot of emotional distress, especially if the home has significant emotional or sentimental value. The couple may work together to come to an agreement. If they cannot reach a compromise, the judge will make a fair decision on their behalf.
How a Lawyer Can Help You Protect Your Share of the Marital Property
Many divorcing couples attempt to divide the marital property without the help of legal representation. While this may work in rare situations, if there are a significant amount of marital assets or if matters become contentious at any point, a divorce lawyer is your strongest advantage.
A family law attorney provides many services. They will ensure no property is overlooked, assist you in mitigation, build a case for your economic situation and represent you in front of a judge in order to obtain the most favorable outcome.
Even if you and your spouse have a civil and collaborative relationship, a lawyer will help you navigate the many complications that may arise during the division of property. If you and your ex-partner have a bitter relationship or struggle to reach an agreement, an attorney can help the two of you reach a compromise quickly or represent you fairly in front of a judge.
At The Law Office of Jean M. Wilson in Colorado Springs, we are dedicated to helping you receive a fair outcome. We understand the emotional turmoil of this time in your life. Let us focus on the divorce proceedings so you may focus on the many other adjustments of this period. Book your consultation with our Colorado Springs family law firm today and begin your journey of coming out of this happier and stronger.