How to Keep Your Separate Property Separate During Divorce

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.