- What is marital property and how may it be divided?
During divorce or separation proceedings, marital property must be identified and valued in order to be properly divided.
Marital property is all property owned and acquired during the span of the marriage, regardless of the name on the property title. Examples of marital property may include real estate equity, bank accounts, investment stocks, retirement accounts, and even separate property belonging to one spouse that experienced an increase in value during the marriage. Gifts and inheritance to one spouse may not be considered marital property and thus may not be divided between the spouses. This will depend on how and to whom the gift or inheritance is made.
Colorado is a marital property state. Thus, assets and debts acquired during marriage may be divided equitably between the spouses upon dissolution of marriage, legal separation, or annulment. Equitable division does not necessarily mean equal division. In Colorado, the court considers a variety of factors in determining fair division, like each spouse’s contribution to the acquisition of the property (including homemaker contributions), the economic circumstances of each spouse at the time of division, and whether the family home is better awarded to the spouse who is the primary caregiver of the children.
- Is my property considered separate property?
The marital estate consists of all property acquired by either spouse during the marriage. Separate property, in contrast, is property brought into the marriage by one spouse or property one spouse receives as a gift or inheritance.
While generally property brought into the marriage as separate property may remain separate if it is separately titled, separate property that has been invested or exchanged in a commingled account between the spouses may be transmuted into marital property. Categorizing property in joint accounts as separate or marital property may become complicated and it may be necessary to consult an expert family attorney to trace the property and take full inventory of the assets.
- Are prenups a good idea and why?
A prenuptial agreement, also called an antenuptial agreement, is a contract entered into by a couple planning to marry that determines their rights regarding property and support when the marriage ends by death or divorce.
It is a common misconception that prenuptial agreements are only for super wealthy couples. In fact, many couples may benefit from establishing a prenup. For example, a prenup can be used to hold certain property special to one spouse separate from the marital estate, it can protect one spouse from becoming responsible for the other spouse’s debts accrued prior to the marriage, and if one party has children from a prior relationship, then a prenup may be used to protect those children’s inheritance.
Another common misconception is that prenups seldom hold up in court. In fact, Colorado courts will typically find prenups enforceable so long as they are entered into freely by both parties, fairly, and consist of reasonable terms and are not “unconscionable.” An example of an unreasonable provision would be waiving the right to collect child support. It is important to be represented by an attorney during prenuptial negotiations to ensure the contract is fair, reasonable, and enforceable in the Colorado courts.
- We did not create a prenup, is it too late?
Engagements and wedding planning is a busy time for most couples. If a couple failed to consider creating a marital agreement before officially tying the knot, it is important to know that it is not too late.
A postnuptial agreement (referred to as a marital agreement) is like a prenuptial agreement in that it determines the division of the marital property if the couple were to separate, but it is unique in the way that it can be entered into after the couple is already married. A marital agreement takes effect once the document is signed by both parties, but it must be signed before divorce proceedings are filed to be enforceable.
A marital agreement will be judged by the same standards as a prenup—the negotiation process must be fair to both parties and the terms must be fair and reasonable to all. It is best to have both spouses represented by separate counsel in order to avoid having the marital agreement voided at the time of divorce.
To ensure time and resources are not wasted, consult with an attorney today to determine if a marital agreement is right for your family.
- What is common law marriage?
Colorado is a common-law marriage state, meaning that the court may recognize a marriage between a couple even if the couple failed to comply with the statutory requirements of a marriage, like obtaining a marriage license.
In Colorado, common law marriage contracted on or after September 1st of 2006 is valid if the marriage was validly entered by mutually consenting adults and the marriage is not otherwise prohibited by other law. See Colo. Stat. § 14-2-109.5.
There is no time requirement necessary for a common-law marriage to be formed; a common law marriage may be found after as little as one year or longer than fifteen years. Periods of cohabitation, without additional evidence, is insufficient alone to constitute a common law marriage. The court will consider various evidence in determining if the couple is common law married. For example, the court will look to whether the couple holds itself out to the public as husband and wife, whether they maintain a joint bank account, file joint income tax returns, have joint ownership of property, use one of the spouse’s names as a last name, and whether the couple is registered on leases or contracts as husband and wife.
A common-law marriage, like a regular marriage, can only be ended by filing for divorce through a court. As Colorado is only one of twelve states to still recognize common law marriage, consulting with a family law expert may be helpful in navigating this unique area of Colorado law.