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Articles Posted in Property Division

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In my experience, nothing seems to annoy a judge more than being required to allocate who gets the personal property acquired during a marriage – TVs, beds, tables, paintings, etc. Accordingly, most attorneys tell their clients to try figure it out among themselves.  When valuing personal property in a divorce, unlike insurance valuations, courts generally use “garage sale” values to determine what tangible personal property is worth, and almost invariably, it’s not worth much. Keep in mind that courts are vested with discretion to divide marital property in a divorce as they deem to be fair.

Thus, when you are paying your attorney $250 – $350 per hour, arguing over who gets the 2 year old flat-screen or the used king-sized bedroom set, the divorcing couple needs to make a cost-benefit determination of whether a fight over a possession is financially worth it, or whether to just take a deep breath and buy a replacement item. Continue reading

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By: Jessica A. Saldin

In most divorce cases, the parties are either still living together when the case begins or have recently separated.  However, it is also not uncommon for parties to have separated several months, or even years, before the divorce case is filed.  In my experience that can be for a variety of reasons.  In some cases the parties wanted to take time to attempt reconciliation.  In others, the parties simply never got around to filing. Furthermore, in some cases one party left and the other party did not want to file because they did not want the divorce to happen.  In sum, there may be a variety of other reasons why spouses wait lengthy times to file for divorce.  Regardless of the reasons, if the parties do get to the point of filing a divorce case, a common and reasonable question many parties ask is: what, if any, effect could this long period of separation have on the division of marital property and debts?  When reading this article, keep in mind that the court has the power to divide all marital property accrued up to the date of the decree.

The only time that marital property and/or debt acquired during a period of separation will be automatically set aside as one party’s separate property or debt is if it was a period of legal separation.  Legal separation is a formal legal process, similar to a divorce, and whether it may be the best fit for your situation will be discussed in a future blog post.  If you have received a decree of legal separation, property obtained after that point will be considered your separate property.  If you are not legally separated, though, and have only physically separated, the answer to the effect such separation has on the property and debt division is not as clear cut.

It is important to be aware of the fact that property acquired during the marriage, even during long periods of physical separation, is considered marital property.  Same with debt accrued during that time.  Therefore, if you are considering a divorce, it is best to start the process sooner rather than later to get resolution and to avoid property you acquire being considered marital property (to which your spouse could be entitled) and debt your spouse acquires being considered marital (part of which you could get stuck paying). Continue reading

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In prior blog posts, we have discussed the duty of financial disclosures in a divorce.  Under Colorado Rule of Civil Procedure 16.2 (e), Colorado law not only requires an absolute duty to disclose one’s financial situation, but also how a failure to accurately disclose, whether by non-disclosure or misstated disclosure, allows a court to re-allocate the assets of a marital estate within the 5 years  subsequent to the final Decree of Dissolution, once a material omission of disclosure is shown.

The Colorado Court of Appeals has since, recently, taken that a step further.  Whereas a spouse, presumably before, had to come to court with proof or knowledge that the other spouse materially misrepresented or omitted disclosure of a material asset, now the Court of Appeals lowers significantly the threshold upon which a spouse can re-open litigation over the division of a marital estate.

In Marriage of Durie, 2017 CA 1295, the court permitted a spouse to reopen a case under C.R.C.P 16.2 (e) based upon “information and belief” that a material omission or misstatement of disclosure occurred, and that by meeting a showing beyond just vague “suspicions and speculations,” that party could additionally seek “discovery” (a procedure authorized by court rule to allow one party to obtain information and documentation from the other party) to attempt to demonstrate that the other party failed in its obligation to provide accurate information. Continue reading

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money-symbols-abstract-5-1169282By: Sarah T. McCain

When dividing property and debts during your Colorado divorce proceeding, there are a number of factors to consider prior to simply dividing the property equally down the middle. There are a number of articles on this blog addressing what is marital property and what is not. Please review those postings for further information on that issue. In summary, the court is only looking to equitably divide marital property. Property owned prior to marriage can be separated as pre-marital property so long as you meet the burden of showing, through appropriate documentation, that this property was not only pre-marital but that it was not commingled in any fashion with marital property, during your marriage. Remember that the burden of providing that documentation is on the person making the pre-marital or separate property claim. Furthermore, if you are making a claim that the other party’s pre-marital property has increased during your marriage, once again, the burden is on you to ensure that you have the documentation to prove that the other party’s gained value during the marriage.  Continue reading

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In Denver area divorces, a court is charged with the responsibility of equitably dividing marital property under C.R.S. 14-10-113.  Marital property is generally defined as any property acquired during the marriage, regardless of how that property is titled.  The exception to this general rule is for property acquired by a spouse by gift or inheritance, or property brought into the marriage by a spouse (provided that that property is not comingled or gifted to the other spouse during the marriage).  These exceptions allow a court to characterize those items of property as a spouse’s “separate property.”

Even with these exception to the general rule, property brought into the marriage or acquired by gift or inheritance can gain value, or “appreciate,” during the marriage.  The increased portion gained on the separate property is considered marital property, and that gained value is something the court is properly charged with dividing. Continue reading

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dow-jones-2-1458944-300x226By: Jessica A. Saldin

When proceeding through a divorce case in Colorado, there are sometimes unique property items that raise special questions when it comes to the treatment of those items for division purposes. For example, trusts, business interests, PERA accounts, etc. all have unique aspects which have been discussed in previous blog posts.  Another property item that has unique qualities is stock grants or stock options in a divorce.  Depending on the status of those items, they may not even be considered a property item that is up for discussion.  If the stock options are vested, they are considered property and would then be divided as any other property item (i.e., is it marital or separate, if marital how is it going to be divided to reach an equitable distribution- see prior blog posts on the determinations of marital v. separate property and how marital property is divided). Continue reading

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In a typical divorce where a couple are owners of a home, that home is often one of the most valuable assets of the marriage, and the issues of possession and division of the net equity can become a greatest sources of dispute.  The court is tasked with a duty to equitably divide the parties’ assets and debts under C.R.S. 14-10-113 and the timing of this division generally occurs at the time of the final orders and decree.  

Because the net equity can be a ready source of cash at the time of sale or refinancing, parties are often desirous of tapping into that asset while the divorce is ongoing.  At times, they agree to allowing one party to refinance and buy out the other spouse from their share of the equity, or just selling the house and dividing the net proceeds from the sale at closing.  Under CRS 14-10-107, an automatic temporary injunction goes into effect, at the commencement of the divorce, against both parties,  which prohibits disposal of marital property without an order of the court or by mutual agreement. If the parties agree to the disposition of property during a divorce, they can submit their agreement to the court, for it to become a court order.

There are divorces, however, in which one party wants to sell the marital home as soon as possible and the other refuses. What then? The Colorado Court of Appeals addressed such a case in In re: Marriage of Gavend, 781 P.2d 161 (Colo. App. 1989).  Continue reading

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By Michelle L. Searcy

In my most recent article, I discussed methods of your assuring separate property remains separate in terms of preserving good evidence for use in a dissolution of marriage (divorce) case.  However, Colorado statutes still define marital property as including increases in the value of separate property during the marriage.  Since often separate property consists of investment assets, this results not only in the difficulty in proving pre-marital value but in the possibility of being required to pay the other spouse their share of the increase in value.  In this blog post, I will discuss how parties to a marriage and/or divorce can avoid such difficulties through valid marital agreements. Continue reading

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By: Michelle L. Searcy

In Colorado, everything acquired by either party during a marriage is presumed to be marital property regardless of title or possession, with a few limited exceptions.  Section 14-10-113(2), C.R.S. lists those exceptions as:

 

 

 

  1. Property acquired by gift, bequest, devise or descent;
  2. Property acquired in exchange for property acquired in exchange for property acquired by gift, bequest, devise or descent;
  3. Property acquired by a spouse after a decree of legal separation; and 
  4. Property excluded by valid agreement of the parties.

Therefore, if your Great Aunt died and left you her car, it is your separate property.  If you trade that car in for another car of equal or lesser value, the replacement car is separate property.  A legal separation likewise protects your interest in property you obtained after the decree of separation is entered.  The final exception requires that the parties voluntarily entered into a marital agreement (post-nuptial agreement) that complies with all of the requirements of section 14-2-309 that was made at a time when the parties intended to remain married.  Regardless of exceptions, your actions can potentially lead to your separate property in a divorce being considered marital.  Continue reading

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By: 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