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Articles Posted in Property Division

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house-for-sale-1236738-300x203By:  Curtis Wiberg

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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unique-1-1209075By 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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unique-1-1209075By: 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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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