Many lay people do not understand that, before dividing property in divorce, a judge must first distinguish between marital and separate property. The judge cannot simply divide all property and debt equally between the parties. Although that happens sometimes, Colorado law does not require such a result. The law actually requires courts to follow a multi-step process in awarding property to divorcing spouses. The Court must first have a clear understanding of all property owned by the spouses together and as individuals. The court must then classify each item of property as separate (belonging to only one spouse) or as marital (belonging to both spouses). The court then awards each item of separate property to the appropriate spouse, husband or wife. Finally, the court must divide the marital property not equally, but fairly between the spouses.
Classification of property as marital or separate can have a profound impact on the over-all division of property, because neither spouse has any rights to the separate property of the other. The name on the title of any specific property does not necessarily affect its classification of marital or separate. In classifying property as marital or separate, the court must follow rules created by the State Legislature. As a general rule, property acquired by either spouse before the date of the marriage is separate, and property acquired after the marriage is marital. However, the statute creates numerous exceptions to these general rules.
Many variable factors can influence a court to divide the marital property in some proportion other than 50-50. Such factors include, for example, age, health, earning ability of each spouse and the value of separate property awarded to each individual spouse. In some unusual cases, the court may award a large majority of the marital property to one or the other spouse. In other cases, it may divide the property very nearly equally.
For a better understanding of property division and all other issues arising in divorce, contact Weaver & Fitzhugh, P.C. today. Our lawyers and staff have over fifty years’ combined experience in handling all aspects of divorce. We can assist in finding creative solutions to avoid costly litigation and will do so whenever possible. However, if necessary, we will provide expert, effective assistance in litigating the most difficult disputes.