THE REPRESENTATION YOU NEED IN ORDER TO PROTECT YOUR FAMILY
Posted in Divorce on July 5, 2022
Yes, Colorado is a no-fault divorce state. This means that you are not required to prove your spouse is at fault or guilty of bad behavior to get a divorce in Colorado. While in the past a person had to show that his or her spouse cheated or was otherwise to blame for the breakdown of the marriage, today the petitioner only needs to cite that the marriage is “irretrievably broken” to get a divorce under Colorado’s no-fault law. Here’s what this could mean for your divorce case.
What Does “Irretrievably Broken” Mean?
Today, all 50 states permit no-fault divorce. There was a time not long ago, however, when fault had to be proven for the courts in most states to dissolve a marriage. In the past, the petitioning party had to prove that his or her spouse committed some type of wrongdoing that gave the petitioner grounds to file for divorce, such as:
- Committed adultery
- Abandoned the family
- Engaged in domestic violence or abuse
- Committed a serious crime
- Became incarcerated
- Lied about his or her identity
- Concealed impotence
Proving fault is no longer a requirement in Colorado or in any state. Instead, the grounds used for getting divorced in Colorado is that the marriage is “irretrievably broken.” According to Colorado Revised Statute 14-10-106(1)(a)(II), the courts will grant a dissolution of marriage or legal separation when at least one of the parties has resided in the state for 91 days prior to filing and the courts find that the marriage is irretrievably broken.
Irretrievably broken means that a marriage has come to an end and that nothing can be done to repair the relationship, including counseling. Other states refer to this as having “irreconcilable differences.” Unlike fault-based grounds for divorce, the filing party does not have to prove that the relationship is irretrievably broken. It is enough to simply state this as grounds for requesting a divorce on the petition in Colorado.
Fault Will Not Affect Financial Decisions Made by the Courts
Colorado’s no-fault law means that the courts will not use the bad behavior of one spouse against him or her to make financial decisions during a divorce. A judge will not give one spouse a larger share of marital property to punish the other for adultery, for example.
Instead, Colorado’s equitable distribution law looks at factors such as the incomes of both parties and which parent has primary custody to determine property division. Other financial decisions made by a judge in a divorce case (e.g., spousal maintenance and child support) will also be based on relevant facts and numbers, not fault for the divorce.
Fault May Affect Parental Rights, Depending on the Case
While the Colorado courts will not use one parent’s fault to determine child custody in the sense of punishing that party, it may take a parent’s wrongful acts into account in terms of child safety. If allegations have been made during your divorce case of domestic violence, child abuse, child neglect, family abandonment, substance abuse or any other activities that could risk a child’s health and safety, the courts will consider this when determining child custody and visitation.
Can You File a Fault-Based Divorce if You Want to in Colorado?
No. Colorado is one of 19 “true” no-fault states, where the only available option is a no-fault divorce, even if you have proof that your spouse caused your marriage to end. You can, however, submit evidence regarding fault for the divorce if it is relevant to other aspects of your case, such as child custody. An experienced divorce lawyer in Fort Collins can help you build a strong divorce case based on all of the relevant facts to pursue the results that you want.
For more information about the grounds for getting divorced in Colorado, contact The Law Office of Stephen Vertucci, LLC, to schedule a consultation.
Posted in Divorce on June 7, 2022
Getting divorced can take an emotional toll on everyone involved. The emotions that you experience can be complex. You may feel regret, sadness, relief, anxiety, anger, grief and many other emotions in rapid succession or all at once. Learning how to cope with your emotions in a healthy way can help you let go and embrace your future. Learn the five emotional stages of divorce to be better prepared for what comes next.
Blame and Disillusionment
Before the idea of divorce is even brought up, you may experience the emotions of blame and disillusionment within your marriage. If you and your spouse have been fighting, you may blame your spouse for your present problems and feel depressed, anxious or stressed. You are dealing with the disillusionment and disappointment that comes with the realization that your relationship is not what you had hoped. This stage can be accompanied by feelings of helplessness, shock and fear of the unknown.
After disillusionment often comes denial – your mind and heart rejecting the thought that your marriage is over. This stage is especially likely if you are not the spouse that initiated the divorce. Denial offers the illusion of safety, as it allows you to distance yourself from reality. If the idea of getting divorced is too overwhelming, you may find yourself in denial that it is happening at all.
But denial cannot last forever. Eventually, you need to face your divorce so that you can accept it and move forward. It is especially important not to let your denial last so long that you miss your chance to respond to a divorce petition that has been filed by your spouse. Ignoring the petition will not make the divorce go away; instead, it can lead to the court granting your spouse a default divorce – meaning the court will approve all of your spouse’s desired terms.
Anger and Resentment
Next comes anger and/or resentment toward your ex-spouse. You may feel betrayed, wronged and angry with how he or she is behaving, as well as anger toward “all women” or “all men” in general. In a divorce case, the anger stage may come on suddenly – such as after you have tried and failed to express your feelings of frustration or discontent to your ex-spouse. Being unable to communicate your feelings can lead to a major blowout where your anger emerges all at once. As difficult as it can be to deal with strong feelings of anger, do your best not to show it around your kids. Remember that your children are dealing with the divorce as well.
Mourning or Grief
The next stage, grief or mourning, may come after you decide to get divorced. You could experience a period of mourning where you say farewell to your relationship, the life you used to lead and the person you were during your marriage. You may feel down, depressed, hopeless or overwhelmed about the future. How long this stage lasts depends on the person. If your depression feels debilitating, seek help. Lean on your friends and loved ones as a support system. Consider professional counseling for you and your children, as well.
Acceptance and a New Beginning
The final stage is split into two parts: learning to accept the end of your marriage and focusing on your bright future ahead. Most people find peace in this final stage. Rather than denying you’re getting divorced or being angry with your ex-spouse, you are ready to embrace the change with hope for the future. While some negative emotions may still appear in this stage, you are no longer consumed by them. You are ready to reclaim your life and welcome the next phase with an open mind.
Partnering with an experienced divorce lawyer can help you minimize the emotional toll of a divorce on you and your family as much as possible. Contact The Law Office of Stephen Vertucci, LLC to speak to an attorney about your Fort Collins divorce case today.
Posted in Divorce on March 30, 2022
Property division is one of the most common sources of conflict for couples in a divorce case. While there are ways to protect your property from going to your ex-spouse, you don’t have to worry about this if the asset in question cannot legally be given to your spouse. In Colorado, separate property is generally excluded from property division.
Colorado Is an Equitable Division State
Colorado uses an equitable distribution law to determine property division in a divorce or legal separation. This law means that property is divided in a way that is deemed fair, or equitable, to both parties. Equitable does not necessarily mean equal. Colorado is not a community property state, where the courts will divide all marital assets evenly down the middle. Instead, if a divorce case goes to court, a judge will decide how to divide assets based on what is fair for either spouse based on factors such as gross income and child custody.
In Colorado, only marital property is subject to division during a divorce. In general, marital property refers to all assets (and debts) that were acquired by either spouse in the course of the marriage. Property that was owned by one spouse prior to the marriage, however, as well as gifts or inheritance given to only one spouse during the marriage, is separate or nonmarital property. The courts only have jurisdiction to split marital property in a divorce case; they typically cannot touch separate property.
Under Colorado law, the assets that cannot be split in a divorce include items that were owned or money that was earned before the marriage, with some exceptions. This can include real estate, vehicles, jewelry, investments, artwork and businesses. It typically applies to any money derived from a separate asset, as well.
Unless a couple commingles their separate property after marriage – such as by combining bank accounts into a joint account – the assets owned prior to marriage will remain excluded from division. Any property acquired after the date of legal separation is also classified as nonmarital property. This could be the date of an official separation decree or when the couple no longer lives in the same household.
Gifts and Inheritance
Property acquired by gift, bequest, devise or descent is also classified as separate property. This includes gifts from relatives, family heirlooms and inheritances. This type of property is not subject to division, regardless of when it was acquired – unless the gift was given to both spouses during the marriage. Commingling a gift or inheritance, such as putting both people’s names on a title, can also make it more difficult to protect from property division.
How to Protect Your Assets During a Divorce
State law can be complex and difficult to navigate when it comes to property division in a divorce. A judge often has jurisdiction over how to divide marital property in Colorado, as well as whether to classify an asset as marital or nonmarital. If you do not wish to risk your hard-earned money or assets in a divorce case, there are ways to protect your property. For example, you and your spouse can sign a prenuptial or postnuptial agreement that protects certain items from being given to your spouse in the event of a divorce.
If it is too late to sign such an agreement, the best option is generally to reach a settlement agreement. A divorce lawyer in Fort Collins can work closely with you to identify and pursue your goals for property division. Then, your lawyer can represent you during negotiations and mediation to improve the odds of achieving a settlement and avoiding a divorce trial. This can keep you in control of the fate of your property, rather than allowing a judge to divide assets as he or she deems fair. For more information about property division in a Fort Collins divorce, call (970) 900-1800 to request a consultation.
Posted in Divorce on March 1, 2022
Any divorce case is difficult and can take an emotional toll on those involved. If your divorce is complicated further by high-value assets, however, you can expect an even more challenging legal process – and a greater need to protect your possessions. While every case is unique, there are shared factors among most high-asset divorce cases due to related laws and special related issues. Here are five things to know if you’re heading into a high-asset divorce in Colorado.
Colorado Is an Equitable Division State
Colorado is in the majority as an equitable property division state. This means that in a divorce, the courts will determine property division based on what is the most equitable, or fair, for both parties. This may or may not be a 50/50 split. The courts will review many factors to determine how to divide a couple’s marital assets. These are the assets (and debts) that a couple acquired during their marriage. If you have any separate property – things that you owned before your marriage or high-dollar assets that were given solely to you as a gift or inheritance – these will generally be protected from division during a divorce case in Colorado.
Hiding Assets Is a Crime
If you are seeking a high-asset divorce, one of the first steps you and your spouse must take is completing a sworn financial statement. This must be provided within 42 days of the divorce petition being filed. It is accompanied by financial disclosures and a follow-up period, where either party can seek additional discovery to search for non-disclosed assets. Hiding assets is a serious offense, punishable by being held in contempt of court, which could lead to a jail sentence. If you are found guilty of hiding assets to try to circumvent property division in Colorado, you could face serious penalties.
Alimony Is Calculated Differently
High-income divorces often involve alimony (known as spousal support in Colorado). Spousal support is a financial award granted to the lower-earning spouse after a dissolution of marriage, to be paid by the other spouse. The purpose of alimony is to allow the lower earner to maintain the standard of living he or she enjoyed during the marriage. After an update to Colorado’s alimony law in 2014, if a divorce case involves a combined income of $240,000 or more, the courts do not use the typical state guidelines for calculating spousal support. For this reason, it is best to work with an attorney who can help you understand alimony in your high-asset divorce.
There Are Tax Consequences of Property Distribution
A high net-worth divorce case comes with inescapable tax consequences. The division of assets, businesses, properties and possessions often involves selling assets and distributing the proceeds. When dividing a jointly owned business, for example, a couple may decide that selling the company and splitting the funds is the simplest way to divide the property without having to work together after the divorce. This can come with tax issues for both parties. If you or your spouse is awarded a particularly high-value asset in a divorce case, the tax consequences for this can also be significant. Complex tax issues may require assistance from a Certified Public Accountant or attorney with specialized knowledge.
Complex Assets Often Require Professional Assistance
High-dollar divorce cases often involve unique and complex assets, such as businesses, retirement accounts, savings accounts, jewelry, stocks and bonds, investments, foreign accounts, real estate, and employment benefits. Dividing – and protecting – these assets can be difficult without a professional’s oversight. Your divorce case may also involve special legal elements, such as a prenuptial agreement, that require attention from an experienced attorney.
If you have a high-asset divorce case, protect your hard-earned money and property with help from the Law Office of Stephen Vertucci, LLC. Our Fort Collins divorce attorneys understand how to navigate Colorado’s laws and can find creative solutions for high-asset clients. Request your consultation today.
Posted in Divorce on January 13, 2022
Colorado, like most states, has a no-fault divorce law that means you do not have to prove a fault ground to get divorced. You do not have to prove that your partner was mentally or physically cruel to you, for example, to have a judge grant a divorce decree. It may be necessary to prove cruelty, however, for purposes such as child custody in Fort Collins. Here’s how to effectively prove mental or physical cruelty in a divorce case in Colorado.
What Is Mental and Physical Cruelty?
First, find out how the law defines mental and physical cruelty. In some jurisdictions, cruelty is referred to as “cruel and inhumane treatment” or “extreme cruelty.” The definition is a pattern of conduct that results in a situation that makes it unsafe or unreasonable for the parties to continue to be married. The situation could be as minor as a repeated annoyance or as severe as abuse. If it creates an unhealthy or improper environment for the spouse or child, it can constitute cruelty.
In general, cruelty does not only mean being disagreeable or mean to one another. It refers to the infliction of unnecessary physical or emotional pain by one spouse against the other. Mental cruelty is a broad term that can refer to many different forms of verbal, emotional, mental and psychological abuse. Physical cruelty is physical pain or harm, including physical abuse, beatings or violence. Both types of cruelty are also referred to as domestic violence.
When Would You Need to Prove Mental or Physical Cruelty in a Divorce?
Before Colorado became a no-fault divorce state, the party filing for divorce had to prove fault for a dissolution of marriage. One of the potential grounds for a fault divorce was cruelty. The law did not force someone to stay in a marriage in which he or she was being physically harmed. Today, however, with the no-fault law, it is enough to state that the relationship has been “irretrievably broken” to get divorced.
Although it is not necessary to prove mental or physical cruelty to get a divorce, it may be necessary to prove cruelty for other reasons, such as to argue for sole custody of your children. The courts will take cruelty or domestic violence into consideration when determining the appropriate child custody arrangement. If you can prove mental or physical cruelty, this could help you protect your children from an arrangement that is not in their best interest.
How to Prove Cruelty as a Factor in Your Colorado Divorce Case
If you need to prove that your soon-to-be-ex-spouse is guilty of mental and/or physical cruelty, contact a divorce lawyer in Fort Collins for legal assistance. This is a delicate matter that can benefit from legal expertise. Your lawyer can help you gather proof of cruelty and present it in a compelling way to the courts. Tips for proving cruelty include:
- Document everything, including taking photographs of any physical injuries. Write down a detailed description of each incident, including the date, time and witness names.
- Go to a doctor to put physical injuries caused by your spouse on the record. For mental cruelty, visit a therapist or psychologist.
- Call the police to report acts of cruelty or violence. Even a domestic violence allegation without a conviction can help you prove cruelty.
- Do not record your spouse unless you have their permission to do so. Recording someone without permission will not provide admissible evidence against your spouse.
- Request a psychological evaluation. Your lawyer can request that a psychological evaluation be done of your spouse. Be aware, however, that this request often means that you will also be subject to an evaluation.
- Call on character witnesses or eyewitnesses. If there is anyone who can attest to your spouse’s mental or physical cruelty, they can testify on your behalf during your divorce case.
An attorney will know exactly what to do to help you prove cruelty in your Colorado divorce case. For more information about a case involving cruelty, abuse or domestic violence, contact the divorce lawyers at The Law Office of Stephen Vertucci to request a consultation.
Posted in Divorce on September 30, 2021
If you and your spouse are planning on getting a divorce, there are many things that you will need to consider. One is the financial impact of the divorce, including how your marital assets and debts will be divided between you and your partner. If either or both of you have retirement accounts, savings accounts, pension plans or 401(k)s, find out how these assets will be handled during a divorce case in Colorado.
Is it Separate or Community Property?
Colorado uses an equitable division law to determine property division in a divorce. This means that if your case goes to trial, a judge will allocate a percentage of all marital assets and debts to each spouse based on what is equitable or fair. This does not necessarily mean an equal or 50/50 split. However, the courts will only have jurisdiction over community property, not separate property.
Community property is anything acquired during the course of a marriage. Separate property is brought into the marriage by one of the spouses. In general, any funds that you deposited into a retirement account before your marriage are classified as separate property and will not be divisible during a divorce. Anything deposited after your marriage is part of the community property and subject to division. Note, however, that separate funds in a retirement account can be viewed as community property if your marriage lasts a long time.
What Type of Retirement Account Do You Have?
How a judge decides to split a retirement account depends on the type of account in question. Most retirement plans are defined contribution plans or defined benefit plans. In the first type, the individual or employee contributes a set amount to the retirement savings account. The employer may match contributions up to a maximum. Examples of this type of plan are a 401(k) and pension plan. In a defined benefit plan, the amount the employee or person receives is calculated based on the length of time worked and the salary earned at the time of retirement.
When dividing a defined contribution retirement account in a divorce case, the courts in Colorado will require the spouse with the plan to transfer part of the value of the plan at the time of the divorce to the other spouse in the form of an IRA or similar retirement account. This transfer will not be taxed. When dividing a defined benefit retirement account, the courts will first determine the value of the benefit accumulated during the length of the marriage.
Then, an amount that is deemed appropriate will be given to the other spouse – only after the owner of the account retires. This is known as deferred distribution. Typically, a spouse is entitled to about 50 percent of a retirement account, although this can change depending on the case. The division of retirement accounts during a divorce is a complicated issue that typically requires professional accountants and financial experts.
What Is a Qualified Domestic Relations Order?
A Qualified Domestic Relations Order (QDRO) is a document that is required for retirement asset division if you wish to avoid tax and withdrawal penalties. A QDRO instructs the administrator of the retirement account on how to allocate funds to each spouse after a divorce in accordance with a settlement agreement or court order. Your case may require more than one QDRO depending on the diversity of your retirement assets and how much they are worth.
Consult With an Attorney for Assistance
If your divorce involves retirement savings accounts or pension plans, contact an attorney for assistance. A Fort Collins divorce attorney can help you protect your nest egg with creative legal strategies such as alternative dispute resolution. A lawyer can also help you understand and obtain QDROs to protect you from financial penalties. Working with an attorney can help you safeguard your future.
The financial side of a divorce case is often the most complicated part. To simplify things and keep them fair, the law in Colorado requires both sides of a divorce to disclose full and accurate information about their assets and debts to the other side, typically early on in the divorce process. Before you and your spouse can work out a property division settlement – or your case is handed to a judge – you must both submit complete financial disclosures. Failing to do so can result in serious penalties.
What Does Complete Financial Disclosure Mean?
One of the first steps that you and your soon-to-be ex-spouse must take to get divorced in Colorado is to submit your financial disclosure information and supporting financial documents. According to Colorado Rule of Civil Procedure 16.2(e), both parties involved in a divorce or legal separation case are required to fully and accurately disclose their financial situations. This requirement is called an absolute duty, meaning that it is mandatory and not optional.
You can fulfill this legal obligation by filling out and submitting financial affidavits before the deadline, which will then be provided to your spouse or his or her attorney. An affidavit is a sworn financial statement with details of everything that you earn and pay each month. In general, financial disclosures must be submitted within 42 days of the couple filing a Petition for Dissolution of Marriage or Legal Separation in Colorado. Some of the information that a financial disclosure form must contain is:
- Income from a job or business
- Income from self-employment
- Savings accounts
- Retirement accounts
- Pension plans
- Real estate
- Marital assets
- Separate property
- Income deductions
- Monthly expenses
The goal of complete financial disclosure is to give both parties involved in a divorce a clear view and understanding of the other party’s financial situation. That way, they can both make informed decisions on how to divide their marital property, as well as how to calculate child support and spousal support obligations. If the couple cannot reach a settlement and the divorce case goes to court in Colorado, the courts will use the financial disclosure affidavits in much the same way – to determine fair or equitable terms for the divorce.
What Are the Penalties for Incomplete Financial Disclosure?
Both spouses involved in a divorce case in Colorado must provide sworn financial statements with full and accurate information. In addition, they must provide the requested financial documentation to support their affidavits, such as tax returns, financial statements, bank account information and investment documentation.
If either spouse fails to make complete and honest financial disclosures during a divorce, that person can face serious legal consequences and penalties, such as being held in contempt of court, having to pay a fine and even spending time in jail. In addition, the courts in Colorado may allow one spouse to reopen a divorce case if evidence is found that the other spouse committed a material omission or misstatement of disclosure.
When to Use a Divorce Lawyer in Colorado
It is critical that financial affidavits and related forms are properly and accurately prepared and submitted by the deadline in Colorado. Failing to do so, even by mistake, can result in the party being accused of intentionally withholding information or hiding assets. The best way to make sure that you fulfill your legal obligation when it comes to complete financial disclosure in a divorce case is by working with an experienced attorney in Fort Collins.
Hiring a divorce attorney can allow you to rest and relax while a skilled and knowledgeable professional fills out confusing paperwork and submits it to the family courts on your behalf. An attorney can help you prepare all of the necessary forms and financial documents to submit to the courts during your divorce, making your dissolution of marriage as effective and efficient as possible. In addition, in the case of a spouse’s omission or misrepresentation, a lawyer can help you pursue justice. Contact an attorney today for more information.
Posted in Divorce on September 29, 2021
Property division is one of the most complicated aspects of the average divorce case. It is normal to want to keep your hard-earned assets for yourself when dissolving your marriage – especially if you were the one that brought them into the union. Learn how to keep your separate property separate during a divorce to protect them from division.
What Is Separate Property?
In the eyes of the law, there are two types of property in a divorce case: separate and community. Community property is everything that the courts can divide in a divorce case. Separate property, on the other hand, is protected from being split.
Community property refers to anything purchased, acquired or brought into the relationship during the marriage. This can include income, retirement savings, investments, real estate, vehicles, collectibles and other types of assets. It can also refer to debts accumulated during the marriage. Separate property is any assets or debts owned by one of the spouses prior to the marriage. Any gifts or inheritance given solely to one spouse during the union are also classified as separate property.
In Colorado, the courts can divide community property, but they cannot touch separate property. Colorado is an equitable division state, which means that the courts will divide property based on what is equitable if the case goes to trial. This does not necessarily mean equally. This is why it is important to know how to keep your separate property separate during a divorce case.
How to Protect Your Separate Property
There are many ways in which you can protect your separate property during a divorce to prevent it from being processed as community property. The right type of action for you and your family will depend on your circumstances. Your options may include:
- Keeping the asset only in your name. Do not commingle separate property. Commingling turns separate property into community property by legally sharing it with your spouse. Common examples include combining both of your bank accounts into one joint account or adding someone’s name to a title. If you wish to keep a piece of property separate during a divorce, keep it in your name only during your marriage.
- Filing for legal separation. Filing for legal separation before you file for divorce can have many benefits. One of them is marking any income, assets or property that you acquire after your date of legal separation as your own separate property – not to be divided with your spouse should you choose to get divorced later.
- Tracing it back. It is your responsibility to prove that an asset you are claiming to be your own separate property is in fact separate. This takes paperwork that traces the asset back to its origin or source. If you have the right paperwork or evidence, you can meet your burden of proof and successfully protect the separate property in question.
- Putting it in writing. State law in Colorado states that any property or assets that are described as separate property by written agreement of the parties involved in the divorce case will be kept separate from the community property and protected from division. A written agreement can include a prenuptial or postnuptial agreement.
- Reaching a settlement. If you and your spouse can work together to achieve an uncontested divorce, you can create a settlement agreement where you get to decide how to divide your property. You may be able to control what assets and property you get to keep if you can compromise with your spouse, as the courts will not intervene.
Consult with a divorce attorney in Fort Collins for legal advice on the best way to keep your separate property separate during a divorce case. A divorce attorney can help you protect your rights and assets every step of the way.
Posted in Divorce on September 13, 2021
If you and your spouse are considering a divorce in Colorado, one of the main issues you will need to work through is property division. If you and your spouse can work together on a property division arrangement, you can remain in control of how assets and debts will be divided after your divorce. Otherwise, the matter will go to court for a judge to decide according to the rules of Colorado’s property division law. The more you know about property division in Colorado, the more you can protect your rights.
Colorado Is an Equitable Division State
Property division laws vary from state to state. Colorado law requires that division of property in divorce be “equitable and fair,” which means that it doesn’t necessarily have to be a 50/50 split. By contrast, community property states hold that all property accrued during a marriage is subject to a 50/50 distribution.
Couples have the option of deciding what is an equitable and fair division of property. If they cannot decide between themselves, a mediator or arbiter may help with the negotiation process. If these alternative dispute resolution tactics fail, the last option is litigation. A judge may consider the following factors when determining a fair and equitable distribution of property in Colorado:
- The financial situation of each spouse
- Any increase or decrease in shared property throughout the marriage
- The desire the parent who receives custody to live in the family home
- Any dissolution of separate property for the sake of the marriage
With these factors in mind, a judge will divide marital property based on what is fair for the specific circumstances. If one spouse makes substantially less than the other due to giving up a career to take care of the family, for example, the lesser-earning spouse may get to keep more of the couple’s marital property, such as a shared home. However, each case is unique.
Determining Separate and Marital Property
There are two main types of property according to Colorado law: marital and separate. A couple’s marital property will likely include all assets or debts that both parties accrue throughout the course of the marriage. This may include real estate, businesses, vehicles, collectibles, jewelry, art, bank accounts, investments, stocks and bonds, retirement savings, and more. The courts can divide marital property but cannot touch separate property.
Separate property, on the other hand, pertains to assets and debts a spouse owned before the marriage or acquired through inheritance. If separate property experiences an increase throughout the course of a marriage, this increase is marital property. There can be exceptions to these marital and separate property rules, assuming that a couple signs a prenuptial or postnuptial agreement. In this case, the couple will divide property in accordance with the terms of the marital agreement.
To make matters even more complicated, sometimes marital property and separate property can become mixed together, which is a concept called “commingling.” For example, a separate bank account may become marital property when the other spouse makes a deposit into it, or a separate inheritance may become marital property when the receiving spouse deposits it into a joint banking account. Assessing marital and separate property can be difficult and often becomes a point of contention in Colorado divorces, necessitating the assistance of a family law attorney.
Process of Dividing Property
Property division is a complicated aspect of any Colorado divorce case. Understanding what to expect from this process can help you and your family properly prepare for when it comes time to negotiate a settlement or go to trial. In a Colorado divorce proceeding, an attorney or judge will use the following basic formula to divide property between two spouses:
- Assess the value of your property. After determining which assets and debts are marital property, the couple (or a judge, if a divorce results in litigation) will assign a monetary value to each article. This may require professional appraisals of real estate, business holdings and other assets.
- The division process begins. If spouses choose to divide property among themselves, they can assign items to each party and make equalizing payments if one gets an asset that’s worth substantially more than the other. Additionally, they may mutually agree to liquidate assets and divide the proceeds. Still others choose to amicably continue to co-own property, but this is not always the best option.
- Spouses must split marital debts as well as assets. This includes mortgages, car loans, credit card debts, and more.
- If the spouses cannot compromise and agree on how to divide marital property, the case will go to trial. In this scenario, a judge will analyze the facts of the case and allocate property to either spouse based on what is fair or equitable.
Alternative Dispute Resolution Versus Litigation
If a divorcing couple cannot come to an amicable arrangement regarding division of property, they have two other options: alternative dispute resolution tactics such as mediation and litigation. Litigation is a last resort for couples oftentimes, since it involves court costs, additional attorney’s fees, and an outcome that neither spouse will like. Mediation is a preferable alternative to having a judge rule on your property division issue.
Mediation is a private meeting between you, your spouse, your attorneys (if desired) and a mediator. A mediator does not have the same capacity as a judge. The mediator cannot make a ruling on property division. Instead, the mediator is someone who is trained in conflict resolution, there to help you and your spouse compromise on property division and the other elements of your divorce case.
Another form of alternative dispute resolution is arbitration. Arbitration is similar to mediation in that it is private and does not take place in a courtroom. It also does not necessarily have to end in a ruling (binding vs. nonbinding arbitration). If mediation and arbitration fail, however, a divorcing couple may have no choice but to engage in litigation. You can increase the odds of successful alternative dispute resolution by hiring a lawyer to represent you during negotiations.
How Can an Attorney Help With Property Division?
Do not take property division lightly during a divorce case in Colorado. Just because Colorado is an equitable division state does not mean that a judge’s ruling on how to divide your marital assets and debts will be fair to you or match your desired arrangement. Once a judge makes a property division ruling, it is generally not possible to seek a modification of the order except in extenuating circumstances. This is why it is important to protect your rights and best interests with a divorce attorney from the very beginning of your case.
A family law attorney in Fort Collins will have the experience and resources to help you navigate Colorado’s legal system. Your attorney will fully understand the state’s divorce laws and property division issues. Your attorney can help you and your spouse divide marital assets and debts in a way that is fair for both of you. If a settlement cannot be achieved, your attorney can represent you at trial. Either way, an attorney can answer your legal questions and make sure that you have everything you need during this difficult time.
Property division in Colorado can become complicated and often requires the guidance of an experienced family law attorney. Talk to a divorce attorney about your legal options if you have further questions.
The filing of every divorce case in Colorado creates an automatic temporary injunction. This is a legal order that prohibits both parties involved in the divorce or legal separation from certain activities, mainly relating to the destruction or use of marital property. Understanding how a temporary injunction works can help you avoid doing something that could get you into legal trouble. It can also help you protect your rights if your ex-spouse violates the injunction.
What Is a Temporary Injunction?
A temporary injunction, also known as a preliminary injunction, serves to protect the rights of both parties during a dissolution of marriage. The state law regarding automatic temporary injunctions is Colorado Revised Statute Section 14-10-107(b)(I). It states that upon the commencement of a divorce or legal separation proceeding by one of the parties, a temporary injunction will go into effect against both parties until the final divorce decree is entered or the petition is dismissed.
Temporary injunctions put many restraints on both parties involved in a divorce proceeding. Neither party may engage in any of the following activities while a temporary injunction is in place:
- Disposing of marital property in any way without the consent of the other party or a court order. This includes concealing, transferring, encumbering or destroying marital property.
- Molesting or disturbing the peace of the other party. This can refer to many actions meant to irritate or injure the other party.
- Relocating a minor child or children of the parties to a different state without the consent of the other parent or a court order.
- Canceling, modifying or allowing a lapse in a shared insurance policy, such as health insurance or automobile insurance, without giving the spouse at least 14 days’ advance notice and obtaining the spouse’s consent or a court order.
The terms of the temporary injunction must be printed upon the summons. There are some exceptions to a temporary injunction. For example, you may be allowed to dispose of marital property without your ex-spouse’s consent if doing so is a natural result of your usual course of business or for the necessities of life. If you are not sure whether you have the legal right to dispose of marital property, consult with an attorney before doing so.
Understanding Temporary Injunctions
In simple terms, a temporary injunction in a divorce case in Colorado prohibits both parties from engaging in activities that would hurt the other spouse physically, emotionally or financially. This law is in place due to the emotional nature of a divorce or legal separation. Its purpose is to prevent either party from doing something out of spite to harm the other party, such as destroying property to prevent the other spouse from receiving it in a divorce case.
It is important to note that temporary injunctions only apply to marital property, not your separate property. You can do what you wish to property that is classified as separate, such as property that you brought into the marriage (and did not commingle with your spouse’s property) or gifts or inheritance given only to you during your marriage. Verify that a piece of property is your separate property before acting. The law generally holds that you can also do what you want with your will, estate plan and separate credit cards, as long as it does not impact marital property.
If you believe your spouse violated a temporary injunction in your divorce or legal separation case, speak to an attorney right away. You have several options available, such as filing a motion for contempt of court or communicating directly with your spouse to resolve the violation. An attorney can help you with all of the aspects related to a temporary injunction while protecting your legal rights during a divorce case. Learn more today by contacting the Fort Collins divorce lawyers at the Law Office of Stephen Vertucci.