Potential Marital Property Arguments in Your Divorce

By: Sarah T. McCain

When dividing property and debts during your Colorado divorce proceeding, there are a number of factors to consider prior to simply dividing the property equally down the middle. There are a number of articles on this blog addressing what is marital property and what is not. Please review those postings for further information on that issue. In summary, the court is only looking to equitably divide marital property. Property owned prior to marriage can be separated as pre-marital property so long as you meet the burden of showing, through appropriate documentation, that this property was not only pre-marital but that it was not commingled in any fashion with marital property, during your marriage. Remember that the burden of providing that documentation is on the person making the pre-marital or separate property claim. Furthermore, if you are making a claim that the other party’s pre-marital property has increased during your marriage, once again, the burden is on you to ensure that you have the documentation to prove that the other party’s gained value during the marriage.

In determining what is separate property, statutes and case law require you to provide a balance or value at the date of the marriage, or a statement as close to the date of marriage as possible. When you are dividing up property that increases and decreases in value, this can be a frustrating experience. For example, consider the following scenario. You purchase a home prior to marriage; it decreased in value at the time of your marriage, and then increases again in value by the time of your divorce. The court will use the value at the time of the marriage and the value at the time of divorce. The court will not consider the fact that the other party is receiving a significant windfall in equity by marrying at a time when the home has actually decreased in value from the time it was purchased beforehand. This may not seem equitable. However, the case law on this subject does not allow the judge to consider this phenomenon of your home increasing less in equity from the date of purchase than from the date of marriage. This does not mean that the purchase price issue should not be raised. While the court may not take the figures and determine equity from the date of purchase, the concept might lead the court to feel a modicum of empathy towards your situation and rule in your favor in other areas. If a contribution argument is being made and the court is dividing property in a manner differently than fifty-fifty, creating an element of sympathy can be beneficial, with the right judge.

The court is not required to divide property equally between the parties, as Colorado statute requires that the property be divided “equitably.” Thus, there are arguments that can be made to persuade the court to divide the property in a fashion that is not fifty-fifty. One of those arguments is asking the court to consider what each party contributed to the increase in the equity in the marital property. This does not mean that because one party worked while one party stayed home as the homemaker, that the party who worked receives more. The court will not appreciate that argument. When you are making a contribution argument, focus on items such as the amount of separate property contributed to the marital estate or the circumstances surrounding the care and upkeep of a piece of property. While judges don’t like to listen to parties essentially bad mouthing each other on the stand, you can testify about the roles each party played in the upkeep of a home without it becoming too negative. If you focusing on the separate property contributions to the increase in equity, ensure that you have documentation showing your receipt of the separate property, such as probate paperwork, and documentation showing the transfer of those funds to the marital estate. Contribution arguments may also work in situations in which both parties worked, yet only once contributed to the growth of assets and the marital estate.

Contribution is only one factor that the court considers, as there are several other factors which the court is required to review, including, but not limited to, the age, health, and economic circumstances of the parties. If you have a significant marital estate, meeting with a qualified attorney is likely your best option in assessing the division of these assets and keeping some of those them in your pocket.