Strategically helping Colorado clients through divorce & custody cases

Articles Posted in Property Division

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529523323-300x200By: Jessica A. Bryant

After getting married it is not uncommon for people to change the beneficiaries on their various accounts (life insurance, stocks, retirement accounts, etc.) to their new spouse.  In the event of a divorce, most types of accounts allow the beneficiary to be changed (be cognizant of the automatic temporary injunction that goes into place when a divorce is filed that prohibits changing the beneficiaries of certain accounts without agreement or court order until the case is completed).  However, one exception to this ability to always change the beneficiary, is a pension account.  Most pension beneficiary rules have a time frame after which the beneficiary cannot be changed.  For example, sometimes, when the person retires, that triggers the event such that their beneficiary designation becomes irrevocable.  So the question may arise, if a divorce is filed after the beneficiary designation becomes irrevocable, does the fact that you are a beneficiary of your spouse’s pension plan, or vice versa, mean that you have a marital property interest in their pension? Continue reading

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240_F_27035570_gIfSgivcriIQhbNmeQU6B6WqHT5bllnH-300x225By:  Curtis Wiberg

Over the last several years, Denver real estate prices have increased rapidly and significantly.  In many Denver divorce cases, the largest asset needing to be divided is the marital home.  If the parties have resided in the marital home throughout the course of the marriage, keeping current on payments, and in this market where house prices have been rising, oftentimes a divorcing couple will have built up significant equity in the home (Equity = Sale Price minus Existing Mortgage owed). This valuable asset is something that will need to fairly divided between the parties as part of any divorce resolution.

The most accurate and assuredly fair way to divide the home equity is to sell the marital home.  What better way to determine how much home equity there is to divide than to go through the process and see how much is left over after sale and closing?  Even if the parties determine to sell the house, some issues can still arise if the sale is done during the divorce.  For instance, if the house in need of repair to get the home ready for sale, the parties need to figure out how to pay for these repairs and agree on a contractor. Some parties insist on doing the repairs or improvements themselves, which is an endeavor that can lead to tension and conflict in marriages that don’t even involve divorce.   Continue reading

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guinness-1362297By: Janette Jordan

It’s a hard question to answer, but one that is often asked.  What happens to the pets in a divorce? As if divorces weren’t emotionally wrenching enough, the thought that you also have to decide where your pets go, or with whom, or who has the final say can be extremely difficult.  We understand that to a lot of people, the pets are part of the family.  To some, they are considered their children. But how do the courts treat them?

In Colorado, one of the most pet-friendly states in the Country, the courts sadly still view pets as property, pursuant to C.R.S. 14-10-113, and something to be divided in a divorce proceeding. If children are involved, your case will naturally involve determinations of parenting time, decision-making, and child support.  When pets are involved, the courts will treat them as an asset, something to be allocated to one party or the other.  Unfortunately, we have a ways to go in recognizing our furry friends as more than property, unlike a court in a Maryland divorce with pets which actually entered custody orders regarding the family dog.  Furthermore, unlike other assets, such as a bank account, you cannot literally divide a dog or cat.  Continue reading

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furniture-1-1425794-300x234By:  Stephen J. Plog

In the past, you may have heard stories about people fighting over the pots and pans as part of their divorce case.  When stories like this are told, it is usually done to emphasize how acrimonious a divorce case might have been.  However, we, as divorce attorneys, have literally seen people fight over pots and pans and have even written about such, some years back, in a prior divorce blog post regarding battles of tangible, marital property.  Though attorneys will generally indicate to clients that most courts do not want to get involved with dividing up dishes, furnishings, pictures, appliances, and other household items, in some cases there may actually be items of tangible, personal property of value which need to be factored in to the marital estate and divided.   The impetus for deviating from the norm of just physically splitting the household goods between the parties is going to be value.   Couches, televisions, and the like are just like cars.   They are generally going to be depreciating assets which, though important from a use standpoint, have no significant monetary value.  However, items such as artwork, guns, collectibles, jewelry, coins, etc. might.

In instances in which there are significant, distinct property items, or even just one item, which either spouse believes to be of worth, the situation might call for obtaining a formal appraisal, much as one might do with a house or other piece of real estate.  The challenge people might face is finding an appraiser or “expert” to do the valuation.   Keep in mind that whether for settlement or court trial purposes, a value needs to be determined and just going into court and saying, “I think this necklace is worth ‘$'” would be a risky, if not a silly approach.  Additionally, when looking for someone to appraise personal, tangible property, your divorce lawyer is going to be looking for someone with the credentials or experience to be worthy of potentially coming to court to testify as an “expert” within the meaning of Colorado Rules of Evidence.    Courts want to know that the person coming in to speak about a specific piece or classification of marital property knows what they are talking about.   Of course, valuations of personal property, including reports and testimony, cost money.   Thus, the initial determination, which may take some guess work on the part of both attorney and client, is whether, from a cost/benefit analysis standpoint, it’s really worth it to even raise the issue, engage the expert, etc.

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chasing-the-markets-1241622-300x200By:  Curtis Wiberg

Colorado law requires a Court dividing a marital estate in a divorce to divide the estate “equitably”, meaning fairly. See C.R.S. § 14-10-113. More often than not, an equal division of marital assets is the fairest result and the norm in most cases.  However, equal is not always fair, and a glaring examples of this is evident when one party has built up a PERA retirement account, while the other has paid into Social Security.  This article will focus on PERA, the unequal allocation of marital property after consideration of Social Security benefits, and a 2005 Appellate Court decision.

PERA (Public Employee Retirement Account) accounts are considered, under Colorado law, to be a marital asset. Social Security benefits, on the other hand, are forbidden under federal law from being valued and divided as a marital asset in a divorce. PERA employees, such as teachers or other government workers, receive their benefits built up from their public employment in lieu of Social Security, rather than in addition to Social Security.  Thus, by electing to take part in PERA, they are divested of certain Social Security benefits. Continue reading

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property-market-1223813By:  Stephen J. Plog

As indicated in various, previous posts over the years, one of the primary issues which can arise in any divorce case is the division of marital property. While reading the news the other morning, I came across a story regarding the case of an English couple battling over their divorce and division of property.  The gist of the article tied into an appellate ruling related to division of the marital estate and whether that division would deviate from the norm based on the husband’s contributions.  Specifically, the parties were arguing over how to divide their $225 million marital estate, with the husband arguing he should receive a greater share than normal due to his special contribution to the marital estate.   The special contribution the husband claimed was the fact that his superior intelligence or “genius” lead to the creation of the vast amount of wealth to be divided.    The English appellate court ultimately ruled against him.

While analyzing this and other cases, the author pointed out that under English law, the norm is to divide a marital estate equally.   This is also the norm in most Colorado divorce cases, whether that norm is arrived at through settlement or a hearing with the court.  Given that many of our notions of legal fairness stem from English law, I was not shocked to learn this.   Of course the bigger aspect of the article was the issue of how British courts might treat contribution of one spouse towards the marital estate as a basis for deviating from the norm of equal and awarding the greater contributor a greater piece of the proverbial pie.   Given my years of experience and familiarity with Colorado family law, I immediately started pondering the issue of contribution and how often it’s really a factor in a Colorado divorce case. Continue reading

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yellow-flag-in-pocket-1510212By:  Curtis Wiberg

Sometimes a high profile divorce can help teach a lesson on key issues that exist in an everyday Colorado divorce. The divorce proceeding currently underway in Texas involving Denver Bronco wide receiver Emmanuel Sanders is one such case.

Gabriella Sanders filed for divorce in October 2016, in Texas. Within the last two weeks, the website TMZ broke the news that Gabriella Sanders alleges that Emmanuel Sanders committed marital “atrocities,” including spending thousands of dollars on multiple other women for the purpose of having extra-marital affairs. To add to the salaciousness of the allegations, Gabriella claims that Emmanuel lied to the Broncos of needing to be excused from practices in November to attend the birth of his baby when really he wanted time off in order to pursue these sexual relationships.  In fact, Gabriella did not give birth to their baby until the second week of December. Continue reading

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calculator-and-pen-indicating-work-study-1632106By: Curtis Wiberg

When parties are getting a Colorado divorce, each party and the Court need to know what the marital estate consists of. To achieve that, Colorado Rule of Civil Procedure, Rule 16.2, was enacted requiring each party to disclose just about everything about the financial information they possess. The specifics of what that entails were discussed in detail in a prior article written by this firm.

Since the enactment of Rule 16.2, the Colorado appellate courts have interpreted and applied this rule, and have clarified further what duties of disclosures parties in a divorce or custody matter owe to each other.

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division of property
Plog & Stein, P.C. will be hosting a FREE Divorce and Real Estate Seminar.  Come join us at our DTC office on December 7, 2016 at 6:00 p.m.  for a free seminar focusing on the ins and outs of dealing with real estate in your divorce.

In conjunction with a local real estate agent, Krissi Spohn of Coldwell Banker, and a local mortgage broker, Plog & Stein will be hosting this informational seminar.  Learn about your rights and options  related to the marital home, second properties, and time shares.

In any divorce, there are an array of issues tied into how to deal with your home.   Is one party keeping the home?  How is the home valued?   How do you deal with the refinance process?   What will a the court do when it comes to dealing with the marital home?   These questions and many more will be addressed, including as relates to sale and refinancing.    The seminar is free.   Knowledge is priceless.

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pet-1543980By:  Sarah T. McCain

Man’s (or woman’s) best friend, just like your child, will be near and dear to your heart long after your marriage may end.  When going through the divorce process, often the family pet becomes part of the equation for many individuals, but is your dog or cat a consideration for the court?  The answer is, “yes.”  Unfortunately, as of today’s statutes, animals are not given much thought by Colorado divorce courts from an emotional or feelings standpoint.  Rather, the law leaves family pets essentially viewed as any other piece of marital, personal property.   This does not mean that you should completely ignore your pets when going through a divorce, but taking this issue to the judge may not result in the outcome you anticipate will happen. Judges will generally not be dividing custody or transferring animals back and forth between parties to a divorce case.  This is, in part, because courts have to divide property by allocating it specifically to someone.

As such, when possible, it’s best to try to negotiate terms regarding the possession, ownership, and care of your animals and to get those terms put into a written agreement.   That written agreement can then be made an enforceable order of the court.  In essence, though a judge might not put the necessary thought into how to deal with the family pets, you have the power to come to agreements regarding those pets which you believe are in their “best interest.”   Of course, animals come in all shapes, sizes and types.   Not all animals are considered pets, such as livestock on a ranch.   When trying to reach an agreement regarding animals, where should you focus?  Will you treat the family dog different from the cows or goats on your farm?  How will you divide them?