Marital Fault or Economic Fault? What Colorado Courts May and May Not Consider
Brandi Petterson - Colorado Divorce Lawyer
“Marital fault†(also referred to as “marital misconductâ€) is a phrase frequently used when one spouse places the blame for a marriage not succeeding on the actions of the other spouse. Colorado courts are not permitted to consider marital fault upon distribution of assets or debts during a dissolution of marriage action. C.R.S. §1 4-10-113. However, Colorado courts have held that should a party to a dissolution of marriage proceeding deplete an economic resource of the marriage, they court may consider such “economic fault†during its division of assets.
Generally, only the marital property existing at the time of the dissolution of marriage is available for distribution between the spouses. The only exception is that a court can value marital property that has been dissipated as of the date it still existed.
The concept of depleting the economic resources of a marriage may seem straightforward. However, pursuant to the temporary injunction that goes into place once a petition for dissolution of marriage is filed with the court, and subsequently served on the other party, both spouses are permitted to utilize the assets of a marital estate for “reasonable and necessary†living expenses. As the Court may consider the economic fault of a party based on actions committed prior to and after the commencement of the divorce, the line between reasonable spending, and depletion to the extent of economic fault, may blur easily.
The concept of economic fault is more widely applied to situations that occur prior to the commencement of a dissolution of marriage action. For instance, in In re Marriage of Hunt, the Court of Appeals stated that “’economic fault’ is a limited concept which comes into play only in extreme cases such as the spouse’s dissipation of marital assets in the contemplation of divorce.†909 P.2d 525, 542 (Colo. 1995).
The divorce process is often emotional and stressful. The period of time leading up to the commencement of a divorce action is sometimes even more trying. Individuals who are typically cool-headed may make rash decisions during these times. Actions by one spouse that are deliberate and committed under circumstances where the other spouse is not consulted or given the potential to mitigate potential damages, can be considered as economic fault by the Court. One situation where the Court differentiated between marital fault and economic fault occurred where a husband stopped making lease payments on a business lease owned by husband and wife. In re Marriage of Jorgenson, 143 P.3d 1169 (Colo. App. 2006). The actions by husband were considered economic fault.
In conclusion, it is important to keep the concept of economic fault in mind, especially when making decisions concerning the assets of your marriage, if you anticipate a divorce in your future. Actions taken that may be construed as depleting an economic resource of the marriage may be used against you and, therefore, may impact the amount of property you receive upon the distribution of assets.
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