By Michelle L. Searcy
Colorado law requires the court to “divide the marital property, without regard to marital misconduct, in such proportions as the court deems just, after considering all relevant factors…” §14-10-113(1), C.R.S. People commonly refer to this provision as “no fault.” While it seems a simple concept, parties are often unaware of their own attempts to inject fault in a property division. Most folks understand that the court is not concerned with who cheated or who decided to end the relationship, but there are other issues that may come up in a divorce where the parties may want to argue that the property division should favor them due to the acts of the other party.
One of the relevant statutory facts concerns “the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker.” §14-10-113(1)(a), C.R.S. The first aspect of this factor that one must consider is the contribution language. I often hear how one party’s retirement should be theirs alone because they put in the work that allowed the retirement to grow. However, by statutory definition, the retirement is included as marital property because it is acquired during the marriage. §14-10-113(2), C.R.S.
That the court is not likely to award most or all of the retirement assets to the one whose job resulted in the account lies in the portion of the statute that requires the court to consider the contributions of homemaker spouses. The idea behind this is that by one spouse taking care of the home, that person assisted the working spouse to be better able to acquire retirement assets. If your spouse is not a homemaker, but instead a lower earning worker, the court will most likely find that the contributions to household expenses by the lower earner made it possible to acquire retirement quicker. While I focused on retirement assets, this analysis applies to all marital property. Additionally, an argument by the primary breadwinner that he or she begged the other spouse to find a job, or a better job is likely to fall on deaf ears as well.
In a property division battle, you can expect that the court generally will start with a mindset of 50/50. Whether the percentage shifts in one direction or another depends on other circumstances, most of which have nothing to do with “fault.” If one spouse inherited (as their separate property) a large sum or valuable property, such as real estate or business interests, the court may determine it equitable for the other spouse to take more of the marital property because the court lacks authority to diminish separate property interests. §14-10-113(1)(b), C.R.S. In such a case, the disproportionate award considers only economic factors, not fault.
While the court cannot transfer separate property to the other spouse, sometimes one party has depleted separate property for marital purposes, which is a factor for the court to consider in a property division. §14-10-113(1)(d). The court may consider a property division that reimburses some or all of the depleted property. However, any increases in the value of separate property during the marriage are considered by the court to be marital property, subject to equitable division. Thus, if you inherited a house in 1984, your spouse will likely receive a significant portion of the increase in value. Once again, this will not be impacted by fault-based considerations, such as the spouses lack of interest in the property or requests throughout the years to get rid of it.
There is one circumstance where the court will consider fault – economic fault, meaning that one spouse has depleted marital property improperly. Keep in mind that both parties have a right to use marital property during the marriage. Also, this concept is applied narrowly to avoid the prohibition against marital fault. Thus, if one spouse purposefully inappropriately depletes marital property during the marriage, the court can award additional property to the non-depleting spouse based on the value of the property depleted. However, such depletion must be significant. Once a showing of dissipation is made, the other spouse has the burden of proving the expenditures were reasonable. If economic fault is found, the effect is likely to be limited to the value of the property depleted, not extending to an overall disproportionate property division. Equitable does not mean equal, so the court can order an unequal property division based on other life circumstances, such as disability, disease, or a temporary inability to earn. It will not, however, based an unequal division on the arguments and blame that are so common when relationships fail.
Also, it should be noted that fault is also not assigned in a divorce when dealing with issues of alimony (maintenance). For example, things like infidelity are not going to divest a spouse of the right to receive maintenance.