When a divorcing couple reaches the point in their divorce when it’s time to divide their marital property and assign marital debt, they often disagree. A lot of couples assume that they will leave the courthouse with the same property they brought with them to the marriage, but that’s not always the case. If you can’t agree on how to divide your marital assets, you will have to go to court and ask a judge to decide.
In Colorado, family law courts must divide property using a concept called equitable distribution. This means that a judge will divide any property purchased during the couple’s marriage in a way that is fair, but not necessarily equal., Typically, judges use the following steps to create a property settlement:
- determine whether the property is marital or separate
- assign a value to the marital property, and
- decide how to divide the property.
Marital Property Versus Separate Property
Before a judge will divide a couple’s property, he or she must first identify what items are marital property and what items are separate property. In most cases, marital property will include anything the couple acquired during their marriage. Property owned by one spouse prior to the marriage may be marital property if:
- either spouse used the property during the marriage
- the couple used marital funds to improve the property, or
- the property benefitted both spouses during the marriage.
So, if one spouse received a large inheritance before the marriage, but eventually used the funds to pay the mortgage on the marital home, the inheritance will have lost its separate property character, and the person who received it may have no claim to reimbursement.
If an asset is found to be separate property, it will belong to one spouse and will not be subject to the standard equitable division rules. If a spouse owned the property before the marriage and kept it separate throughout the couple’s marriage, the property will belong to the original owner.
In some cases, separate property can be both marital and separate if the property increased in value during the marriage. For example, if one spouse owned a rental property before the marriage, it is separate property. But, if both spouses paid to add a new room onto the rental property, both spouses will divide the increased market value of the property.
A big part of property division is confirming how much as asset or property item is worth. Value is especially important in making sure both spouses receive a fair settlement. When spouses don’t know or can’t agree on a value, they can search for help.
In today’s very internet driven world, it doesn’t take much effort to find what you are looking for online. So, if a couple needs to assess the value of their 60” television, they can utilize websites like Craigslist.com, Ebay.com, or Bestbuy.com to find an estimate of value depending on the age, size, and condition of the television.
If an item is an antique or collectible, it will likely require an expert assessment—in this case, the couple can pay for a professional appraisal.
How Will a Judge Divide Our Property?
Once a court categorizes all property and debts, a judge must then divide it fairly between the spouses. There is no specific formula for the judge to follow, so, much of the division is at the judge's discretion.
Some of the factors courts in Colorado consider when dividing property include:
- the length of the marriage
- each person's age, sex, and health
- each spouse’s contribution to the purchase of the marital property
- the value of each spouse’s separate property
- each spouse’s economic circumstances
- whether either spouse desires to award the family home, or the right to live in it, to the spouse with primary custody of the children, and
- whether marital property increased or decreased in value throughout the marriage.
A judge can divide the assets by assigning certain items to each spouse, by allowing one spouse to “buy out” the other’s share of the property, or by asking the couple to sell the assets and divide the value. Couples can also agree to continue owning property together after the divorce, but to be successful, couples must be able to communicate and work together. This type of arrangement won’t work for everyone, but for those who wish to keep the family home until the children graduate, it may work.
How do Courts Divide Debts?
In addition to dividing property, couples must assign the marital debt. Some debt, such as a student loan, belongs only to the spouse that attended school. Other debts, like a mortgage, or joint vehicle loans, are marital debts, and a judge will assign each spouse a portion of the debt.
Regardless of how a judge divides the debt, couples should understand that a court order can’t change the legal relationship the spouses have with their lenders. If the couple has a mortgage with PennyMac and a judge assigns the mortgage to one spouse because he or she is living in the home, both spouses will still legally be responsible for the payments. To achieve separation, the spouse keeping the home will need to refinance the home into their own name within a specific time frame given by the court.
But with marital debts from credit cards or small loans, the credit card company or other lenders will generally have the right to go after either spouse for repayment, even if a judge assigned the debt to only one spouse.
To protect yourself, make sure your marital settlement agreement and/or divorce judgment contains a provision that allows you to get reimbursed if your ex-spouse fails to pay credit cards or other assigned debts and the lender comes after you for payment.
If you have questions, you should speak to an experienced family law attorney in your area.