Was it always “share and share alike” with your spouse during your marriage?

That attitude is likely to fall by the wayside rather quickly once you head to divorce court. Suddenly, your spouse may start insisting that the usual split isn’t fair and that certain assets are his or her private property.

Well, here’s what Colorado law has to say about the issue of marital property:

Equitable distribution is the governing rule

Some states have divorcing couples divide up the marital assets in a 50-50 split. In Colorado, however, the law requires an “equitable” split of the assets.

In practical terms, that may actually mean a 50-50 split — but the judge has some leeway to take a number of different factors into consideration when the property is divided. In some instances, that may very well mean that the higher-earning spouse takes away a larger share of the marital assets than the lower-earning spouse. That might not hold true, however, if the lower-earning spouse:

  • Worked to put the higher-earning spouse through professional school
  • Played a social support role to further the higher-earning spouse’s professional career
  • Stayed home to care for the children or home at the request of the other spouse
  • Gave up a career in order to allow the higher-earning spouse to better pursue his or her own professional goals
  • Became disabled during the course of the marriage and is incapable of being self-supporting

It’s important not to assume that you know what the court will do in advance because every situation is unique.

It may be difficult to distinguish separate property from marital property

One of the first things that the divorce court has to decide is what property really is marital property and what is a spouse’s individual property. That can be trickier than it looks.

For example, if your spouse entered the marriage with a pension plan worth $50,000 and has added $100,000 to it since, you may have a reasonable claim that at least $100,000 is marital property. That $100,000 was, after all, funded with marital money. (Your spouse may, quite naturally, disagree.)

Asset division is a complex issue in many divorces. Don’t make any agreements regarding the division of marital property until you fully understand your options.