Property Division in Divorce

One of the issues that always needs to be addressed in a divorce is the division of the marital assets and liabilities (debts).Marital Property in Divorce

Assets include real estate, tangible property (such as vehicles and furniture), business interests, loans to others, and financial assets (such as checking and savings accounts, financial investments, and retirement accounts).

If you own a business, then this may need to be valued to determine if there is a marital interest.  This also applies to irrevocable trusts, stock options and other types of assets.

Liabilities are what is owed to others. For example, your mortgage, car loans, credit/debit card debts, personal loans, student loans, and the amount owed on a lease are all liabilities.

When dividing the marital estate, it is important to understand the implications of retaining or giving up certain assets. For example, wishing to retain the marital home not only may mean having much needed financial assets tied up in real estate, but also has necessary ongoing expenses tied to it, such as taxes, insurance, maintenance, utilities, etc. There may also be a capital gains liability at the time of sale.

In most cases, the name on the title or account is not a critical issue, because if the property (or debt) was acquired or grew in value during the marriage than all or part of the asset/debt is considered marital, regardless of title.

People going through divorce often need assistance is determining what is marital property and what might be separate property. In Colorado, the presumption in the law is that all of your assets and liabilities are marital, unless (in short) you agree otherwise.  If a spouse is claiming something as separate property, and there is a disagreement about the claim, then the burden of proof is on the person claiming property as non-marital. Sometimes this is simple (for example, the value of a retirement fund at the time of marriage), but often can be complex because the separate property has been co-mingled with marital property during the marriage, or because the records are no longer available.

There are also tax implications with some assets, such as retirement plans and investment accounts, that should be taken into account.

Since Colorado is an equitable distribution State (as opposed to a community property State), the Court does not have to divide your marital estate equally, but can divide it equitably.  In mediation, part of the process is helping you both to work out what you each think is fair given all the circumstances of your particular situation.

Sometimes parties will agree to an unequal division of assets for a wide variety of reasons, including waiving spousal support.

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