What is Marital Property?

During a Colorado Divorce the court has broad authority to divide a couple’s property in a manner that seems “equitable” to the court. This equitable division of property is based on a categorization of property as being either marital or separate. Understanding this distinction between marital property and separate property is important for understanding your rights in a divorce.  This article from the Littleton Divorce Attorneys at FlinLaw will help you understand what marital property is and how it is divided.

Marital Property in Colorado

Colorado divorce law defines marital property as any property acquired after the date of marriage and before the date of dissolution, except:

  1. Property acquired by gift, device, bequest or descent;
  2. Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired acquired by gift, device, bequest or descent;
  3. Property acquired by a spouse after a decree of legal separation; and
  4. Property excluded by valid agreement of the parties.

See C.R.S. §14-10-113. The above items are deemed separate property and therefore cannot be divided by a court.

Commingling and Appreciation

Even though some property is not initially deemed marital under the Colorado Uniform Dissolution of Marriage Act, appreciation on your separate property is deemed marital property subject to division. Likewise, commingling marital and separate assets can make it difficult to determine which assets are marital and which are separate, potentially resulting in an over inclusion of separate property in the marital estate. Both of these problems can result in items you believed were your own separate property being handed over to your spouse in a divorce.

Fortunately, you can avoid these unwanted results by executing a marital agreement which will classify with more specificity which assets are marital and which are separate. A marital agreement can either be prenuptial (meaning executed prior to the marriage) or antenuptial (meaning executed during the marriage).

How is Marital Property Divided

The Colorado Uniform Dissolution of Marriage Act requires that courts divide marital assets in an “equitable” fashion. To be clear, “equitable” does not mean “equal.” The courts are instructed to consider all relevant facts and circumstances, including:

  • The contribution of each spouse to the acquisition of the marital asset, including the contributions of a homemaker;
  • The value of the property set apart to each spouse (separate property);
  • The economic circumstances of each spouse at the time the division of property is to become effective, including a preference to keep children in the family home; and
  • Any increases or decreases in the value of separate property or the depletion of separate property for marital purposes.

See C.R.S. §14-10-113.

Common Questions

Is my inheritance marital property?

Generally speaking, your inheritance is not marital property under Colorado law. However, while you’re married the appreciation on your inheritance will be marital property. For certain types of inherited property it can be difficult to distinguish the amount of appreciation that occurred during the marriage.  Similarly, commingling the inheritance with marital assets could result in difficulty distinguishing which assets are marital and which are separate.  This situation commonly arises when someone uses their inheritance to make a down payment on a house, or when they combine inherited stocks with an existing portfolio. To avoid these issues, we recommend you consider a marital agreement if you expect or have just received a large inheritance. A marital agreement may allow you to avoid these issues by better defining what is marital property and what is not.

Will marital misconduct, like cheating, be considered during property division?

The court cannot consider marital misconduct when it is dividing marital assets. This means the court will divide marital property regardless of cheating and regardless of abuse issues.

Free Divorce Consultation

If you have more questions about property division or divorce in the Denver metro area, contact the Denver Divorce Attorneys at FlinLaw for your free consultation.  You can call us at (720) 204-4199 or use our online contact form.