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Marital and Non-Marital Property

In Colorado divorces, courts identify property owned by married persons as falling into one of two categories: marital property and non-marital property. Marital property is anything that is acquired during the marriage, subject to certain exceptions. Non-marital property includes gifts given to just one of the parties, property acquired after decree of legal separation, an inheritance received in the name of one spouse only, or property set aside by a valid prenuptial agreement, and property owned by one spouse prior to the marriage. However, in certain circumstances, part of the value of non-marital property held by one spouse is sometimes considered by the court in dividing the marital estate.

Marital Property and Equitable Distribution

If property, including real estate, is determined to be marital property, it is considered part of the marital estate that is divided fairly and equitably between the spouses. This does not necessarily mean equal. Courts look at several factors, including the contributions of each spouse to acquiring the property (including the noneconomic contributions of a homemaker spouse), economic circumstances of each spouse like current income or earning potential, and increases and decreases in the value of separate property owned by each spouse. If one spouse earns and/or has the ability to earn considerably more money than the other, he or she may receive a smaller portion of the marital property. However, spousal support may also be awarded to the lower income-earning spouse instead of marital property to offset a gap in earning potential.

Courts also look at the value of non-marital property each spouse owns at the time of the divorce. If one spouse earns considerably less money than the other, but owns non-marital real estate with a considerable amount of equity, the division of the marital property could produce a different result, i.e. instead of the person who earns less getting a larger portion of the marital assets, the higher income-earning spouse may still end up with more marital assets.  This is because the appreciation of value of the non-marital property during the marriage is considered martial property in the divorce that the lower income-earning spouse is receiving which is taken into account in the property division. 

The amount of marital debt that each party is ordered to pay also effects the distribution of property between the parties, i.e. a spouse who is ordered to pay a large marital debt obligation may be awarded more marital property in return.

As valuation of assets and debt can be complex and confusing, it is best if possible to have a Colorado divorce attorney, such as Brain Boal of the Boal Law Firm, PC, represent you in contested divorce proceedings, or to negotiate and draft a marital settlement agreement that is fair but protects your interests, so that you have the best possible chance of ending up with what is most important to you.

Contribution Factors

Some of the things, other than income, that a court will look at to determine marital property division, include:

  • How much each spouse contributed to the acquisition of certain marital assets, including contributions as a homemaker, or supporting a spouse who was in school for a degree to better his or her income;
  • Which spouse has or will have primary parenting responsibility for the children;
  • Value of the property, whether real estate, retirement accounts, personal property and other property;
  • The depletion of separate property for marital purposes.

Furthermore, property acquired by the spouses during the divorce process, but before the divorce decree is entered, is considered marital property.

Contact Boal Law Firm, PC

If you are considering divorce or if you have been served with divorce papers,  contact Boal Law Firm, PC for a consultation to discuss your rights relating to property division in your particular case, even if you are fairly certain that your divorce will be amicable, and especially if you think you or your spouse has valuable non-marital property or if you think your spouse is hiding assets from you and the court.

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