Strategically helping Colorado clients through divorce & custody cases

Articles Posted in Property Division

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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?

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stock-photo-87360451-two-hands-holding-jigsaw-pieces-to-finish-house-shape-puzzleBy: Jessica A. Bryant

One common question that arises when people are contemplating a Colorado divorce, or entering into a marriage and wanting to protect themselves for the future, is how to make sure their spouse can’t get their pre-marital or other separate property items in a divorce.

Separate property takes several different forms, including:

– Property obtained by gift or inheritance (ex: trust funds, funds received from a deceased relative, real estate received by inheritance, funds provided by gift, etc.);

– Property obtained in exchange for property owned prior to the marriage or property received by gift or inheritance (ex: trading in a car you had before the marriage for a new car, using funds from the sale of a home obtained by inheritance to purchase a new home, etc.);

– Property obtained after a decree of legal separation is entered (if you go the route of seeking a legal separation instead of a divorce, once you get that decree, property you acquire is considered separate);

– Property agreed to be separate by valid agreement of the Parties (i.e., pre-nuptial or post-nuptial agreements but the statute specifies the agreement must be valid so it is advised you consult with a Colorado divorce attorney before entering into and relying on such agreements to ensure validity) Continue reading

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stock-photo-26487950-house-in-coloradoFREE Divorce and Real Estate seminar! June 15, 2016 at 6 p.m. 18801 E. Main Street, Suite 250, Parker. Call Plog & Stein at (303) 781-0322 to reserve your seat or email us through the firm website.  Seating is limited.

In conjunction with a local, Parker Colorado real estate agent who is certified as a specialist in divorce and real estate, and a local mortgage broker, Stephen Plog will be speaking at a bi-monthly real estate seminar focusing on real estate and divorce.

Mr. Plog’s portion of the seminar will discuss the implications of Colorado divorce and real property, whether related to a primary residence, investment property, or other real estate.   When dealing with divorce and your home, there are various outcomes which can happen.  There are also many things to consider, such as whether to keep the property or sell it, how to deal with a jointly financed property, and more.

Learn your options and rights when it comes time to resolve how your home will be handled as part of the dissolution of your marriage.  Colorado’s real estate market is booming, including in Douglas County. Making sense of how to handle your real property in this market matters.   Understanding how to keep the equity you are likely entitled to is a key part of any divorce negotiations or litigation. Continue reading

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stock-photo-34334226-retirementAs experienced Colorado divorce attorneys, we deal with all aspects of asset division.  This can include division of real property, personal property, investment accounts, retirement accounts, and almost any other type of property you can imagine.  Beyond the normal questions that arise when dividing property and debt in a Denver divorce case, PERA (Public Employee Retirement Account) accounts come with additional questions and issues that need to be resolved. First, under Colorado law, a court cannot forcibly divide a PERA account. This means that, without agreement, the judge or magistrate hearing your divorce case cannot give your spouse a portion of your PERA account. This is different than any other type of retirement account which can be divided by a special order to avoid adverse tax consequences (unless you or your spouse want to withdraw funds immediately, in which case, the taxes and penalties will still apply). However, this does not mean that, if your spouse is the one with the PERA account, this is the end of the analysis. While Colorado judges and magistrates may not be able to forcibly divide a PERA without agreement of the parties, they can give the non-PERA spouse more of the other marital property or less of the marital debt to off-set the other spouse’s receipt of the entire PERA. Additionally, the court can order the spouse with the PERA to pay a certain amount to the other spouse each month upon retirement. Thus, effectively the main difference is that the PERA-receiving spouse is responsible for making the payments to the other spouse, as opposed to PERA making the payments directly, which could lead to tax complications or questions.

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By: Stephen J. Plog

As experienced Colorado divorce attorneys, we are extremely familiar with the numerous issues people might argue over in any case. As stated in prior blog posts, the primary issues in any divorce case can be child custody, spousal support (maintenance), child support, division of debt, and division of property.
Continue reading