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Who Determines How Assets Are Divided During Divorce?

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.