THE REPRESENTATION YOU NEED IN ORDER TO PROTECT YOUR FAMILY
What Assets Cannot Be Split in a Divorce?
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.