Family Law, Divorce, Custody and Child Support Attorneys in Colorado Springs, Colorado

“What’s the Rule?”

Generally speaking, any asset acquired by a party following the date of the marriage is presumed to be marital property, and therefore subject to equitable division by the divorce court.

Also, there are statutory provisions defining separate property as any property that was obtained by gift or devise (inheritance), or obtained by exchanging a gift or other separate property for another asset. Property acquired by a spouse after a decree of legal separation, or other property excluded by agreement of the parties, will also be considered a party’s own separate property.

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Keeping Property “Separate”

Married couples all have different mechanisms for handling family expenses and income.  Sometimes the parties only have joint accounts, sometimes there’s only separate accounts, and sometimes they have joint accounts for expenses and separate accounts for “their stuff”.

With couples who separate out their income and have separate accounts, there is often an expectation that the money in those accounts belongs solely to them and that should a divorce occur, they get to keep it all.  This is a mistaken assumption most of the time.

Absent a prenuptial agreement, a marriage is a partnership where spouses surrender financial separateness.  Income from your job becomes a marital asset.  Profits from stocks, IRAs, or businesses becomes divisible.  A spouse may acquire interest in property that the other spouse owned before the marriage.  So when we see couples who marry, and yet try to concoct arrangements to defeat marital interest in things like bank accounts, businesses, and retirement accounts, we scratch our heads.

A reality check is needed when a divorce is filed.  These efforts to take marital funds and stake them out as separate property will generally fail.  While a party may, in fact, be awarded all of the cash in this “separate” back account, the court may offset that value with another asset or debt.

There can be separate property of the parties in a divorce, even in long term marriages.  It’s important to seek out the advice of a lawyer in helping to identify separate property since it can make a huge impact on the allocation of assets.

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So What’s a Court to do?

The court will apply various factors to determine how marital assets should be divided between spouses. These factors include the contribution of a spouse as homemaker, the value of a spouse’s separate property, the economic circumstances of each spouse, and any increase or decrease in the value of separate property of the spouse during the marriage.

There are other considerations impacting the statutory provisions governing classification and distribution of marital property, and our office is ready to assist you and help you work through the distribution of assets of your marriage.

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