Property Division Frequently Asked Questions: General
- Does marital property have to be split equally or 50/50?
- Does it matter whether the house and car are titled solely in my name?
- Can the court enter orders dividing or disposing of property prior to our permanent orders hearing?
- Can I get part of my wife’s inheritance?
- How will a court divide the household furniture and items?
- How Is Personal Property Divided In A Divorce?
- how-is-personal-property-divided-in-a-divorce.htmlHow is separate property handled in my divorce?
- How is my property in another country handled?
- Is property obtained after separation all mine?
- My boyfriend and I have split up and have a custody case, can the court divide up our property?
- Does marital property have to be split equally or 50/50?The general rule of thumb followed by attorneys dealing with the division of property in a divorce is that courts will usually divide marital property equally. However, pursuant to Colorado statute, specifically C.R.S. 14-10-113, Colorado judges are required to divide property in proportions they deem to be “just” in light of certain relevant factors. As such, judges have discretion in terms of how they might allocate property, so long as they find that the property is divided in a just or equitable fashion.Though the easy thing for a court to do is to say all marital property shall be split equally, there are instances in which a court might allocate the assets on a 60/40 or differing basis. In light of the courts’ discretionary and equitable powers, judges might award a greater portion of property to one spouse due to a lower income level, a lesser likelihood of recouping assets, such as retirement proceeds, or in lieu of the other party being allocated less of the marital debt. Courts can also consider separate or non-marital property allocated to each party as a factor in formulating the equitable division of the marital property.
Furthermore, courts might also assess each party’s contribution to the accumulation of assets, including contributions made as a homemaker. Cases of disproportionate property division are few and far between, but they do arise. They key to remember is that a 50/50 division, though the norm, is not automatic.
- Does it matter whether the house and car are titled solely in my name?No. Presuming either asset is marital in nature, C.R.S. 14-10-113(3) specifically indicates that all property acquired during the marriage, absent an exception, is presumed to be marital, regardless of whether titled jointly or separately. People sometimes title homes, cars, and various financial accounts solely in one party’s name for various reasons, such as due to poor credit. Additionally accounts, such as a 401K, are only going to be titled in the name of the plan participant. Colorado statute recognizes that property comes in many forms and titling mechanisms and that to divest one party based solely on how an asset is titled would be grossly unfair. The analysis regarding titling also holds true for marital debt.
- Can the court enter orders dividing or disposing of property prior to our permanent orders hearing?Generally speaking, the final division of property is a permanent, or final, orders hearing issue. While a divorce case is pending, the court has power, pursuant to C.R.S. 14-10-108, to enter orders regarding the temporary usage of marital property. This is generally a decision made by a magistrate at a temporary orders hearing, or made by the parties via an agreement. “Usage” and actual disposition of property are two entirely different things.However, pursuant to case law, specifically In re Gavend , 781 P.2d 161 (Colo. App. 1998), a court can enter orders regarding the sale or disposition of marital property prior to permanent orders in instances of extreme financial circumstances. For example, a court might order a home on the verge of foreclosure to be sold prior to the entry of final orders so as to preserve any equity for the parties. Aside from dire circumstances, the division of property will generally have to wait until the final hearing, absent an agreement of the parties.
- Can I get part of my wife’s inheritance?Pursuant to C.R.S. 14-10-113(2)(a), property received by inheritance is generally considered separate and non-marital in nature. There are instances in which property received by inheritance can become marital, whether entirely or in part. The Denver divorce lawyers at Plog & Stein, P.C. are adept at analyzing each case to determine if such property has taken on marital attributes. Instances in which an inheritance received by one spouse may become marital will generally relate to whether the inherited property, all or part, has been ultimately titled jointly, or whether such property has increased in value.For example, if one spouse receives $50,000 from her grandmother and subsequently puts it into a jointly titled bank account, there is a presumption that this property was intended to be made marital property via commingling it with jointly titled property. This is not an absolute rule and one can still argue that the separate inheritance amount is separable from the other funds in the account. This is going to be a question of fact for the judge to ultimately determine. This determination will likely include an analysis of deposits, withdrawals, and account usage from the time the inheritance funds were deposited.
Additionally, if that $50,000 is deposited into an investment account, which grows to $100,000 at the time of the divorce, the court will have statutory authority to divide the increase pursuant to C.R.S. 14-10-113(1)(d). When receiving an inheritance, one should always be careful to make sure he or she is aware of the ramifications that may flow from how the property is ultimately titled.
- How will a court divide the household furniture and items?One aspect of property division is that most metropolitan area courts loathe dealing with it is furnishings, the pots and pans, etc. Most married couples do not have Picasso paintings or 17th century antique furniture. The general rule of thumb the Denver family lawyers at Plog & Stein go by is that clients should really try to work out dividing the furniture on their own.It is not uncommon to hear judges say that they will just order the parties to have a garage sale, sell it all, and split the money. This benefits no one. Furthermore, the cost of replacing these items will far exceed the funds gained through a garage sale. As with other property, from a valuation standpoint, the purchase price of an item of furniture is not the current value. Court’s go by current value, not purchase price. Current value will generally be garage sale value. Parties should keep in mind that pre-marital items and gifts from others are not part of the marital furniture to be divided.
Additionally, if one party is going to keep a piece of property that is being financed, such as a bedroom set, they should also expect to be solely responsible for any debt on that furniture. The method our attorneys suggest is that the parties inventory the entire house for all marital property, make a list, and take turns choosing items. This may seem tedious and unpleasant, but it is much more practical than being ordered to sell it all. Some judges will order an inventory/choice process. There is no set rule for dividing up the furniture and if the parties cannot agree, the court will ultimately decide.
- Is property obtained after separation all mine?A common misconception held by people prior to speaking to an experienced family law firm is that once a divorce case is filed, or the parties are physically separated, any property acquired or value accrued between that time and the time a decree is entered belongs to the party acquiring such. The same misconception is often applied to debt as well. C.R.S. 14-10-113 deals with the allocation of property in a divorce case and indicates that property is divided at the time of decree. Statute indicates that property be divided equitably, meaning that the judge has discretion as to the division. There is no automatic rule regarding property acquired during the divorce proceedings, or in a general sense.In some metropolitan area courts, a case can take several months. If, during that time, one party’s 401K goes up significantly, most judges will factor that increase in as marital property and it will be subject to division. This is not to say that arguments cannot be raised suggesting that new property or increases in value to current property should not be divided. Any such arguments will need to be compelling to the court from a fairness standpoint.
- My boyfriend and I have split up and have a custody case, can the court divide up our property?As child custody attorneys in Denver, we are often asked this, or similar, questions. The answer is, “No.” Courts in Colorado custody cases do not have jurisdiction over the property of the parties in custody cases, only over child issues. As such, if the parties are not married, they will need to file a separate civil action to deal with their property concerns.