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Colorado Divorce: Marital Property vs. Separate Property


Marital Property vs. Separate Property

When considering the division of property during a legal separation or dissolution of marriage in the State of Colorado, there are two types of property the court must identify and consider: marital property and separate property. “Marital Property” is property acquired by either spouse during the course of the marriage, along with any appreciation or growth connected to separate property. And “Separate Property” is property acquired prior to marriage, along with other exceptions to property acquired during the marriage; like gifts or inheritance. In the event of a divorce or legal separation, the courts must divide marital property equitably.

The Division of Marital Property in Colorado

When dividing marital property, the Colorado court will consider the following:

  • The contribution each spouse made to the marriage when acquiring the marital property
  • The economic circumstances of each spouse at the time the division of property is to become effective; and
  • Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.

What is Considered to be Separate Property?

There is certain property that although acquired during the course of the marriage is not considered to be marital property:

  1. Property acquired by inheritance or by gift is not considered marital property. (Gifts from one spouse to another during the marriage, however, can be deemed either marital or separate property.)
  2. Property received in exchange for property owned prior to marriage or in exchange for property received by gift or inheritance is not considered marital property.
  3. Property acquired after there has been a decree of legal separation is not considered to be marital property
  4. If there is a valid legal agreement between the spouses, like a prenuptial agreement, property may be excluded from being deemed marital property.

Other issues to consider:

The division of marital property can impact orders for maintenance (spousal support). When considering a maintenance award, the Court will consider the financial resources of the party seeking maintenance, including marital property apportioned to such party.

It is also important to note that separate property, either acquired prior to the marriage or during the marriage, can lose its characteristic of being separate property – if it is co-mingled with marital property. For example, if one party has a bank account with substantial money prior to the marriage, the entirety of the account may become marital if marital assets are deposited into that account throughout the marriage or if the other party is added to the account.