The 411 on Divorce in Colorado

October 17, 2014

Divorce in Colorado is essentially about the division of assets, determining if any party owes the other maintenance or any other financial obligations, and, if children are of the marriage, determining the allocation of parental rights and responsibilties. In determining the division of assets, many factors come into play.  The first step is determining which assets are actually marital property. Colorado Revised Statute 14-10-113 regulates the division of marital property in a divorce. Marital property is defined as any property which either spouse acquires during their marriage, except for property acquired by gift, inheritance or property excluded by a prenuptial agreement. Contrary to popular belief, the manner in which the property is titled is not conclusive.  

 

Thus, for any property obtained during the marriage, where one spouse has sole title, the property may still be deemed marital and divided between the parties. This often includes bank accounts, retirement accounts, pensions, club memberships, frequent flyer miles, stock options for past services, and any tangible property such as automobiles.  Additionally, any property that may have been acquired prior to the marriage, but has increased in value during the marriage, is considered to be marital and is subject to division. A typical example is if one spouse bought a house and then married. Since the value of the house will most likely increase while the parties are married, the increase in value of the house becomes marital property.

 

Moreover, debts incurred by either spouse while married, may also be subject to division. For example, student loans that were incurred during the marriage or any types of credit cards either spouse may have applied for during the marriage. Moreover, debts are often associated with an asset, and the court will often assign these debts to the spouse who retains the asset.

 

If the property is deemed marital in Colorado, the property is then divided between the parties equitably. This is called “equitable division”. Colorado is an “equitable division” state. This essentially means that the courts have considerable leeway in deciding how to divide marital property. The courts look at four factors when dividing marital property:

  •  The contributions of each spouse;

  •  The value of property set apart to each spouse;

  •  The economic circumstances of each spouse; and

  •  Any increase, decrease or depletion in the value of any separate property during the marriage.

 

Subsequent to considering these four factors, the courts divide marital property equitably between the parties. Marital property does not need to be divided equally, but only needs to be divided equitably. The purpose of dividing marital property is to allocate to each spouse what equitably belongs to him or her.

 

Another major issue in divorce is that of Maintenance (also known as "Alimony" and/or "Spousal Support"). Spousal maintenance may be appropriate if a spouse needs support and the other spouse has the ability to pay support.  An award of maintenance shall be in an amount and for a term that is fair and equitable to both parties and shall be made without regard to marital misconduct. The court shall consider all relevant factors, including but not limited to:

 

(I) The financial resources of the recipient spouse, including the actual or potential income from separate or marital property or any other source and the ability of the recipient spouse to meet his or her needs independently;

(II) The financial resources of the payor spouse, including the actual or potential income from separate or marital property or any other source and the ability of the payor spouse to meet his or her reasonable needs while paying maintenance;

(III) The lifestyle during the marriage;

(IV) The distribution of marital property, including whether additional marital property may be awarded to reduce or alleviate the need for maintenance;

(V) Both parties’ income, employment, and employability, obtainable through reasonable diligence and additional training or education, if necessary, and any necessary reduction in employment due to the needs of an unemancipated child of the marriage or the circumstances of the parties;

(VI) Whether one party has historically earned higher or lower income than the income reflected at the time of permanent orders and the duration and consistency of income from overtime or secondary employment;

(VII) The duration of the marriage;

(VIII) The amount of temporary maintenance and the number of months that temporary maintenance was paid to the recipient spouse;

(IX) The age and health of the parties, including consideration of significant health care needs or uninsured or unreimbursed health care expenses;

(X) Significant economic or noneconomic contribution to the marriage or to the economic, educational, or occupational advancement of a party, including but not limited to completing an education or job training, payment by one spouse of the other spouse’s separate debts, or enhancement of the other spouse’s personal or real property;

(XI) Whether the circumstances of the parties at the time of permanent orders warrant the award of a nominal amount of maintenance in order to preserve a claim of maintenance in the future; and

(XII) Any other factor that the court deems relevant.

 

After considering the provisions of this section and making the required findings of fact, the court shall award maintenance only if it finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it inappropriate for the spouse to be required to seek employment outside the home.

 

 

Legal Separation: Some people may not want to proceed with Divorce, but still want to be legally separated.  Colorado law recognizes that people may still need to be married officially for benefits, heatlhcare, tax purposes, and other reasons.  As such, you can petition the court for Legal Separation in lieu of Divorce.  Legal Separation means neither party can remarry until the Legal Separation is converted into a Divorce ("Dissolution of Marriage"), but for al legal purposes the parites are legally separated with the benefit of marital status.

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