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Marital Property and Divorce

Each state has its own laws about how marital property will be divided and how it is characterized. In Colorado, courts will order a division of marital property that is equitable and fair, but not necessarily equal. Spouses may keep their separate property. Often, our attorneys can help our clients work through with their spouses how to divide their property through either joint settlement discussions or mediation. However, if the spouses are unable to agree, our Denver marital property lawyers can take your case to trial so that a court will determine which division of property would be most equitable.

Marital Property

The first step in addressing property division between divorcing spouses is to identify which property is marital property and which property is separate property. Only the marital property is to be divided. The separate property remains the intact, separate property of whichever spouse to whom it belonged. Marital property includes all of the assets and debts that a couple acquired while married, with a few exceptions. Specifically, the gifts and inheritances of one spouse may remain separate property, even though they were acquired during the marriage. When separate property funds are used to purchase separate property, that newly acquired property may also remain separate property.

What if separate property acquires value during a marriage? For example, sometimes a retirement account was acquired before a marriage, but it may have increased in value during the marriage, based on an earning spouse’s work during the marriage, market fluctuations, or accumulation of interest. The increase in value is considered marital property, while the pre-marital portion asset remains separate property, presuming the amount accrued or value prior to marriage can be ascertained and proved.

In some cases, separate property is converted into marital property. For example, you might have changed your separate property into marital property by changing the name on the title and deciding to hold it jointly rather than individually. The court presumes in such cases that you were making a gift of your separate property to the marriage.

The character of separate property may also change due to commingling. This happens when marital property and separate property are mixed together, either intentionally or by accident. Some people want to commingle their assets when they marry, while others inadvertently convert separate property into marital property by not keeping the property separate. For example, a wife might take money from a separate property account and use the money as part of a down-payment on a house that the couple is buying together, and the husband may wind up making mortgage payments on that house with his separate property funds. This commingling may turn separate property into marital property. An attorney can help you evaluate whether property should be classified as separate or marital.

In instances in which the marital estate is comprised of complicated assets, such as business or commercial real estate, it becomes more like that the parties will need to involve experts, such as business valuators, appraisers, or potentially forensic accounts, who can also trace funds, assets, and income. Your divorce attorney will be able to determine what experts might be needed given your situation.

Factors that the court will consider when equitably dividing marital property include each spouse’s contribution to its acquisition, its value and the value of each spouse’s separate property, the spouses’ economic circumstances, and any increases or decreases in the value of separate property during the marriage.

Retain an Experienced Marital Property Lawyer

At Plog & Stein, P.C., we are sensitive to our clients’ needs in connection with marital property and other issues. Our marital property attorneys provide tenacious advocacy to help them further their goals, both during divorce and afterward. Our retainer rates are competitive. Contact Plog & Stein, P.C. at (303) 781-0322 or via our online form for an appointment. We also represent people who need a divorce attorney in Aurora, Centennial, Highlands Ranch, and Castle Rock, as well as other areas of Denver, Douglas, and Arapahoe Counties.

 

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