Q. How will our property and debts be divided?
A. Colorado is what is known as an "equitable distribution" state. This means that the court must divide marital property fairly and equitably, but not necessarily equally. The court divides marital property after considering several different factors and without regard to marital misconduct. Prior to dividing property, the court must first determine whether property is "marital" or "separate" property. Marital property includes marital assets and marital debts acquired during the marriage, such as houses, businesses, investments, pension plans, automobiles, 401(k) accounts and increases in the value of separate property. Separate property means property acquired by gifts and inheritances during the marriage as well as property acquired before the marriage. Determining whether an asset is marital or separate in nature can be very complicated.
Q. What if my spouse has everything in his/her name?
A. How property is titled is not necessarily a determining factor for property division. What matters is whether the property is marital or separate property. For instance, if a residence is titled only in the name of one of the spouses but it was purchased during the marriage with marital funds, it is still marital property and subject to division by the court.
Q. What if I have received gifted or inherited property during the marriage?
A. Separate property belongs to the individual who received the property by gift or inheritance. However, any increase in the value of separate property during the marriage is marital property and is subject to division. For example, a house inherited by one of the spouses during the marriage would be that party’s separate property, but any appreciation in the value of the house during the marriage would be marital property. Property acquired prior to the marriage is that party’s separate property (with some caveats), but any increase in value during the marriage is marital property.
Q. What if there is a dispute about the value of certain property?
A. There are several ways to determine the value of property, such as using an appraiser.
Q. How are pensions or retirement accounts divided?
A. Pensions and retirement accounts that are marital in nature are divided fairly and equitably.
Q. What if I owned property before I was married? Can my spouse get half of that?
A. The short answer is no because it is your separate property. However, if you have titled your separate property jointly (i.e., titled your pre-marital residence in both of your names after the marriage), that property will be presumed to be a gift to the marriage and, therefore, marital property.
Q. What if my spouse accumulated a large amount of debt without my knowledge? Am I responsible for half of the debt?
A. Under Colorado law, debt acquired during the course of the marriage is marital and subject to apportionment by the court. However, Colorado law gives the court discretion to divide property and debts justly, after considering several factors, which may result in your spouse paying a larger share of the debt. An experienced family law attorney will be able to best assess your situation and advise you of your options.
This information is not to be interpreted as providing legal services, nor as proposing any form of legal advice. By providing this general information, no attorney-client privilege is established. If you are uncertain about your legal rights, you should consider consulting with a qualified attorney. Specific questions should be directed to Kama McConaughy Sarkissian at (303) 649-0999.
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