There is certain property that although acquired after the marriage is not considered marital property. First, property acquired by “gift” or “bequest, devise, or descent” is not marital property. See C.R.S. 14-10-113(2)(a). Gifts from one spouse to another during the marriage can be deemed either marital or separate property.
For an exchange from one spouse to another to be considered a gift and excluded from determination as marital property, “a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift.” In re Balanson, 25 P.3d 28 (Colo. 2001) citing J. Thomas Oldham, Divorce, Separation and the Distribution of Property § 6.02[3][a] (2001).
Second, property received in exchange for property owned before the marriage or in exchange for property received by gift or “bequest, devise, or descent” is not considered marital property. See C.R.S. 14-10-113(2)(b).
Third, property that is acquired after there has been a decree of legal separation is excluded from being marital property. See C.R.S. 14-10-113(2)(c).
Finally, if there is a valid agreement between the parties, property may be excluded from being considered marital property. See C.R.S. 14-10-113(2)(d). Even though property might be separate property, any appreciation in its value during the marriage is considered marital property. See In re Dale, 87 P.3d 219 (Colo. Ct. App. 2003). The courts must take those values into consideration when dividing the property. In re Martinez, 77 P.3d 827 (Colo. Ct. App. 2003).
When dividing property, courts are not to consider property which the parties might acquire after the hearing or decree. In re Johnson, 576 P.2d 188 (Colo. Ct. App. 1977). Even though parties may have separated, until there is an actual decree of legal separation any property acquired after marriage is still considered marital property. In re Carruthers, 577 P.2d 773 (Colo. Ct. App. 1977).
Also of note is the role of division of property in an award of maintenance. When determining whether to award maintenance and what amount of maintenance to award, one of the factors considered by the Court is, “[t]he financial resources of the party seeking maintenance, including marital property apportioned to such party…” C.R.S. 14-10-114(4)(a).
Therefore, the division of marital property can also impact orders for maintenance.