When considering property division at the time of a legal separation or dissolution of marriage, there are two general types of property to consider: marital property and separate property. Generally, “marital property” is property acquired by either spouse after the marriage. C.R.S. 14-10-113(2).
Once property is deemed marital, then the Court considers how to divide the marital property. The individuals’ separate property remains their own.
In Colorado, marital property is divided without regard to marital misconduct or fault. The Court divides property as it deems equitable or fair, which does not necessarily mean the property is divided equally. In making the decision of how to divide marital property the Court considers “all relevant factors.” C.R.S. 14-10-113(1).
Marital Property Division Factors
The factors outlined for consideration are as follows:
(a) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(b) The value of the property set apart to each spouse;
(c) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time; and
(d) Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.
See C.R.S. 14-10-113.
Definition of Separate Property
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[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.