Author: Maria DiManna

An important part of the divorce process in Colorado is figuring out how to divide marital property. The procedure generally involves two steps. First, it must be determined what the marital property is. Second, the marital property must be divided equitably. But who decides how the assets are divided?

What is ‘Marital Property?

First, it is important to define marital property. State law defines “marital property” as “all property acquired by either spouse subsequent to the marriage.” Anything that isn’t marital property is considered “separate property,” and will not be divided for property division in a divorce case.

Separate property is generally defined as being anything acquired by either spouse prior to getting married. It also includes certain types of property acquired during the marriage that is excluded from the marital property definition, such as any property

• Acquired by gift, bequest, devise, or descent
• Acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent
• Acquired by a spouse after a decree of legal separation
• Excluded by valid agreement of the parties (e.g., by a prenuptial agreement)

The division of assets in a divorce case is almost always harder and more emotionally taxing than it initially might seem. This is especially true for high-net-worth couples and couples who either jointly own a business or have complex business interests that are difficult to quantify monetarily. Unfortunately, it is also not uncommon for a spouse in a contentious divorce to either hide or undervalue assets, which can require a long and drawn-out divorce process.

Equitable Division

Once marital property has been identified and valued, it is then subject to equitable division, if the couple has not already divided the marital property amongst themselves! If the couple has decided not to divide the property themselves, the court and the judge will then decide how to divide the assets equitably. The word “equitably” in the context of divorce property division means that marital property must be divided fairly, but not necessarily 50-50.

By law, a judge that is presiding over the dissolution of marriage case in Colorado is required to consider a variety of factors in making sure that the marital property is divided in this way. Those factors are the contribution of each spouse during the marriage; the value of the property set apart to each spouse; the economic circumstances of each spouse at the time the marriage terminates; and any increases or decreases in the value of the separate property of either spouse during the marriage.

Who Decides?

As mentioned above, there are two parties that can decide how assets are divided. If the couple is on good terms or is going through mediation, it is possible that the couple can divide their assets amongst themselves. This is ideal, as it allows for each person to get what they want in a way that they deem fair. It also allows for a more streamlined divorce process with less court time necessary. However, this is not always possible in a contentious divorce. If it is not possible in your divorce, the court and the judge will be the ones who divide up the assets. The judge will divide the assets in a way that they deem equitable, not necessarily fair.

Marital Debt

It warrants mentioning here that any debt that was acquired during a marriage in Colorado becomes part of the equitable division equation during a divorce. In other words, a divorce court is empowered to allocate debt in a way that’s fair under the circumstances. A common misconception is that debt that’s been acquired in only one spouse’s name during the marriage is automatically classified as separate property and thus not subject to division. That isn’t necessarily true, and in fact, most debts acquired by either spouse during a marriage will be deemed marital property and divided accordingly.

Contact Divorce Matters® Today

The team at Divorce Matters® has helped thousands of clients and counting navigate the Colorado divorce process and get a fresh start in life. We are compassionate and experienced advocates who focus exclusively on family legal matters, including but not limited to equitable divorce property division, spousal maintenance (alimony), child custody and support, prenuptial agreements, collaborative divorce, appeals, and more.

To schedule a consultation, either call Divorce Matters® at 720-679-7881 or complete this convenient online form.

One of the most searched questions on our website is “Can my husband sell our assets before the divorce?” The short answer is yes, your spouse can sell all your assets before the divorce is filed. There is nothing that specifically prevents them from doing so.

Despite the selling of your assets before the divorce being technically allowed, there are some things to take into account if your spouse is selling off your assets. Any proceeds from such sales would be considered marital property and would be divisible in the divorce process. The court may also penalize the selling party if the court finds foul play. Foul play could be defined as trying to hide or reduce the value of assets so that they are not discovered in the divorce process. The Court will also look to determine whether the property was sold for fair market value. If the items were sold for less than fair market value, then the court may impose additional value on the sale for a more equitable distribution of the marital assets throughout the divorce process.

Everything we’ve discussed so far refers to pre-divorce sales of assets. But the situation changes if the Petition for the Dissolution of Marriage has already been filed. Once the Petition for the Dissolution of Marriage has been filed, there is an injunction, or block, in place which prohibits the sale (or disposal) of marital assets. If one party violates the injunction and sells marital property, they may be found in contempt of court and penalties can be assessed against them by the court. In this case, there is an exception if the assets are sold or disposed of in normal business dealings.

The sale of real estate is also (generally) preventable after the filing of the Petition for the Dissolution of Marriage. This is because title companies often perform a search of the owner’s names and, if they determine that a Dissolution of Marriage is in progress, will typically refuse to sell the property without the other party’s consent. This is true for properties in one or both of the parties’ names. Even if you have not yet filed for divorce, you may be able to contact the title company and halt the sale. Most title companies do not want the liability of a court battle and will therefore most likely halt the sale. One may find the name of the title company by contacting the seller’s realtor. Any other property titled in both people’s names, like cars or other vehicles, will need both signatures for sale.

It is important to keep in mind that the reason for sale may also play a role in how the court handles the selling of assets. A seller needing to sell an item to obtain money to live is much different than a seller simply selling an item to spite their spouse.

Overall, most large items will not be able to be sold without both people signing the documents. As for smaller items, they can be sold, however, their proceeds will still be considered marital property and will be divided accordingly. It is also important to note that selling assets may make your spouse look unfavorable and unethical to the court.