PROPERTY ISSUES IN A COLORADO DIVORCE

As part of thinking about a Divorce, one should consider what exactly are their financial needs each month for their existing lifestyle today, what those needs will be in three years and what they will be in ten years. Based upon our clients age and work history, we craft a plan for the division of marital assets and consider the issue of alimony whether one is potentially paying alimony or will be receiving alimony. Our goal in the divorce process is to preserve our client’s financial stability today, three years from now and for retirement, whether retirement be next year, five years from now or twenty years from now. Fellows & Quenzer provides its clients with tools to create realistic budgets to know what is a reasonable and realistic division of assets and what is a reasonable amount of alimony, if any. We look at today as well as the long term future in helping our clients determine what position they need to take on property issues in the divorce process.

There are three main financial issues to be considered in a Colorado Divorce, (1) Division of Marital Assets and Marital Debts, (2) Award of Maintenance (Alimony) and (3) Award of Attorney Fees.

PROPERTY DIVISION - DEBT DIVISION

The law can be complex in regards to property and debt division in a divorce. How the Courts are to consider the division of assets and debts is governed by Colorado Revised Statutes 14-10-113. The Court will only divide and allocate assets that are defined as “marital assets”. This definition is addressed in the section below. The property assets usually at issue in most divorce cases are the marital residence and the retirement accounts. Often the valuation of a pension is a disputed issue in a divorce case. Colorado is not a community property state where everything is divided 50-50 automatically. In Colorado, the Court can decide to divide marital assets and debts 50-50, but it is not required to make such a division. The division can be 100% to one party and zero to another party. The Court looks at a list of specific factors to decide how to divide the assets and debts in a manner deemed fair and equitable. The contribution of a spouse who is a homemaker is a stated factor and such contribution is valued by the Colorado courts. Prenuptial Agreements and Post Nuptial Agreements, if they exist for the parties, can be a substantial factor in determining the division of marital assets and debts as well as defining what is a marital asset for the parties in their unique divorce case. The concept of “fair and equitable” seems to vary slightly from Judge to Judge as it is a somewhat subjective standard.

MARITAL PROPERTY VERSUS SEPARATE PROPERTY

In general terms, “Marital” property are assets that have occurred during the marriage from the wedding day until the day the divorce is official. These are assets that will be subject to division during a divorce. In general terms “Separate” property or “Premarital” property, are assets that were acquired either before the wedding day or are special types of assets received during the marriage and kept separate by not commingling the separate property assets with marital property assets. Marital property can include the appreciation of a separate property asset during the marriage. What exactly is marital and part of the asset pie to divide in the divorce and what exactly is separate property and not subject to division can be a complex mix of legal issues. How the Courts define assets as marital and as separate is governed by Colorado Revised Statutes 14-10-113.

Even if assets are deemed separate property for the divorce and not subject to division by the Court, the separate property can still be a factor in the divorce for the issue of alimony. Some facts of interest to determine whether an assets is separate of martial are 1)whether property was acquired previous to the marriage, 2) whether it has now been commingled together with marital assets, 3) who is on the title, 4) who actually paid for the asset, 5) how it was paid for, 6) whether it was inherited, 7) who has the debt for the property, 8) the actual value of the property today as well as on the date it was acquired and on the date of the wedding, etc…

MAINTENANCE (ALIMONY)

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ATTORNEY FEES AWARDED

How the Courts are to consider awarding attorney fees to one party from the other party is primarily governed by Colorado Revised Statutes 14-10-119. It is a very short statute consisting of two sentences that leaves great discretion to the Judge. Colorado intends the award of attorney fees to level the playing field so that both parties are able to have an attorney represent them in a divorce or custody case. The Court looks at the financial resources of each party and if one has significantly larger resources available to them than the other party, an award of attorney fees can be made on a temporary basis in the beginning of the case as well as on a permanent basis at the end of the case. This is an area where rulings can differ from Judge to Judge under similar fact circumstances. This is a statute that can provide a person with limited financial resources the ability to hire a competent attorney to defend their rights in a case where otherwise such a person would be unable to afford an attorney for their case. This is often a hotly disputed issue in a divorce or custody case.

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