One of the toughest issues in any divorce is dealing with the division of assets and property. When couples share a life together, the boundaries between yours, mine, and ours tend to get blurry, especially if marriages last a long time. This becomes problematic when married couples divorce and must try to agree on how their assets should be divided. Under Colorado law, property division between ex-spouses in a divorce must be “equitable,” but it isn’t always easy to determine what that means in a legal sense.
So, what happens if your ex tries to force the sale of your house in the name of equitable distribution during divorce proceedings? The answer is hardly simple since it depends heavily on your individual circumstances, but the Denver family law group at Halligan, LLC is here to help.
Our lawyers have assisted hundreds of individuals and families throughout Colorado with a wide variety of divorce cases, and we are not afraid to tackle even the most complex issues. Read on to learn more about property division in a Colorado divorce, or contact us online to schedule your confidential case review now.
How is Property Handled in a Colorado Divorce?
Like most states, Colorado subscribes to the concept of “equitable distribution” for all divorce proceedings that occur in the state. It is a common misconception that marital property is required to be divided equally. Equitable distribution means the division of marital property must be “fair” by law, which does not necessarily mean an equal division. In Colorado divorces, several factors are considered when determining the division of marital property.
It’s important to note that not all assets or property in a marriage are legally considered “marital property” for the purposes of divorce. Some assets are considered “premarital property” or “separate property,” and Colorado courts do not have the authority to require the division of these assets (with some exceptions). That being said, the increase in value of separate property during the marriage is considered marital property. For this reason, one of the first steps in any divorce is an analysis of each spouse’s assets and debts to determine whether any such assets or debts should be considered separate.
What is Separate or Pre-Marital Property?
In Colorado, there is a presumption that all property acquired during the marriage is marital property subject to division. Separate property, sometimes referred to as pre-marital property, is usually any property that one party owned before they married their spouse, though there are certain exceptions. Separate property is not limited to what was owned prior to the marriage, and can include property acquired through gift or inheritance. Under Colorado law, the following may be considered separate property, which is not an exclusive list:
- Property owned by a spouse prior to the marriage
- Rents, issues, profits, and proceeds from any real and personal property owned by a spouse prior to the marriage
- Property received by a spouse as a gift or inheritance from a third party
- Property a spouse obtains through the exchange of other separate property
- Any presents or gifts given to a spouse by the other spouse during their marriage, which can include jewelry, money, household goods, and apparel
Separate property is not subject to division by the court; however, any increase in value of separate property during the marriage is considered marital property and is subject to division by the Court.
Therefore, if you owned a home prior to your marriage and subsequently kept it in your own name, your home would still be considered separate property, but any increases in its value would be marital property. It’s common for real estate values to increase over time, so a careful analysis is often required in cases involving separate real estate property in a divorce.
Additionally, if you jointly title your separate property, it may be considered a gift to the marriage and therefore would be marital property subject to division.
What is Marital Property?
For the purposes of divorce proceedings in Colorado, marital property is defined as all property obtained by either spouse subsequent to the marriage, whether or not the titles for such properties are held by one or both spouses. The only exceptions are if the property can be proven to be separate property, pursuant to the above definitions. That means that titling a house in your name only does not necessarily protect it from division if it’s determined that the home is marital in nature.
Can My Soon-to-Be Ex Sell Separate or Marital Property?
Determining which assets are separate property and which are marital property can be tricky, and in some cases, certain assets may take on the characteristics of both. If you started your retirement account before the marriage, it’s likely considered separate property by law; however, only the value as of the date of the marriage would be considered separate property - any increase would be considered marital property subject to division.
In any case, it’s a good idea to consult with an experienced Denver divorce attorney to learn more. A lawyer can help you understand the laws that apply to your case, explain the options available to you, and represent your best interests in court.
Contact the Family Law Advocates at Halligan, LLC
If you’re going through a divorce in Colorado, you need a knowledgeable family attorney on your side. The experienced legal team at Halligan, LLC focuses exclusively on divorce and family law, and it is our mission to help families like yours. Call us at (720) 608-2361 or contact us online to get started with your consultation now.