By: W. Curtis Wiberg
Every so often, Plog & Stein, P.C. receives calls from someone who states that they’ve been separated for years from their spouse, but that neither party ever bothered to make the divorce official.
While typically, it’s no big deal if both spouses agree to just amicably make it official, both parties have put themselves at great risk for exposing themselves to paying maintenance or losing a significant portion of their assets that have built up over the years since the parties separated.
Under CRS 14-10-113, marital property is defined as any asset or debt, regardless of how titled, that has accumulated during the marriage (with the exception of gifts, property brought into the marriage and kept separate, and/or inherited assets). So, notwithstanding that the parties have gone their separate ways for years, the presumption and definition of marital property technically stands. It then is the burden of the spouse to appeal to a Court for an “equitable” division that takes into account the circumstances of the parties’ mutual separation. Had one spouse simply proceeded to get a dissolution right away, there’s no claim the other spouse could make against an ex-spouse for accumulations of assets that occurred after a dissolution decree.
Similarly, with respect to maintenance under CRS 14-10-114, the statute creates a rebuttable presumption of the applicability of a maintenance award as to both amount and duration of maintenance based on the current incomes of the parties and the length of a marriage. While a party can argue that the use of the formula is inequitable as to an individual case, it’s not a certainty that a Court would agree with that party and consider the entire length of the marriage and the circumstances of each spouse before and after a separation.
So, if someone has been separated for years from your spouse, in the eyes of the law, it’s still a marriage. That means something. Even if both spouses separate on relatively equal footing, if one spouse’s career blossoms, income increases and accumulates assets while the other spouse falls on hard times or becomes disabled, a Court is fully empowered to award assets and support disregarding the fact of a long term separation. While there is no case law specifically on point from Colorado, a few states have ruled that a marriage creates a legal obligation as between the parties regardless of how the parties have chosen to live their lives. Other states on the other hand do find relevant a “de facto termination” of a marriage as a date for determining property division and maintenance. See, e.g.: Berish v. Berish, 432 N.E.2d 183 (Ohio 1982).
Until Colorado develops some case law on this point, how a Court would respond to the circumstance of a long term separation where one spouse has fared significantly better than the other since the separation is an open question. Why chance it? If you are separated, your marriage is irretrievably broken and you and your spouse have already started moving on, don’t put off making it official.
