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Colorado Information

Resolution of Property/Financial Issues

Under Colorado law, your property/financial issues can be addressed in the following three ways:

Written Separation Agreement (no appearance by parties required; decree will be based upon written affidavit):

The parties have signed a written separation agreement. (The separation agreement must be filed with the court.) That agreement provides for the division of all marital property and marital debts, and addresses spousal support, child support and health insurance. If there are child(ren), the parenting plan is completed and provides for the allocation of parental responsibilities, decision-making and parenting time.

No Marital Property or Debts to be Divided:

There is no marital property to be divided and there are no marital debts.

Party/Parties to Appear in Court:

No Written Agreement, and there are marital property and/or debts to be divided.

Distribution Of Marital Property In Colorado Divorce Actions

a . Procedures and Legal Standards Applicable to Judicial Determinations Regarding Marital Property under Colorado Law

Division of marital property is a two step process. First, the court must first ascertain which property is marital, as opposed to separate. Second, the court divides marital property, in proportions as it deems just, based on the factors set forth in Colorado's equitable distribution statute – Section 14-10-113(1), C.R.S. 2010. The statutory factors include:
1 . The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
2. The value of the property set apart to each spouse;
3. The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time; and
4. 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.

In general, marital property does not include property that was acquired by one of the spouses prior to the date of the marriage. However, when premarital property is placed in joint tenancy by a spouse during the marriage, there is a presumption that the spouse who had title prior to the marriage intended to make a gift of the property to the marriage. Under such circumstances, the "donated" property is presumed to be marital, for equitable distribution purposes in a divorce action, absent clear and convincing evidence to the contrary.

b . Resolving Marital Property Issues through a Marital/Property Settlement Agreement

Because of the uncertainty, stress and cost associated with divorce proceedings, many couples decide to resolve their marital property issues by entering into property settlement agreements.

Under Colorado law, there is a strong presumption that a marital agreement is enforceable. A "marital agreement" is defined in $sect; 14-2-302(1), C.R.S. (1987 Repl.Vol. 6B) and means an agreement either between prospective spouses made in contemplation of marriage or between present spouses, but only if signed by both parties prior to the filing of an action for dissolution of marriage or for legal separation. It must be in writing and signed by both parties, and is enforceable without consideration. Section 14-2-303, C.R.S. (1987 Repl.Vol. 6B). The content of such agreements can include a number of areas, including, inter alia, the disposition of property. Section 14-2-304(1), C.R.S. (1987 Repl.Vol. 6B).

Absent involuntary execution or unfair and unreasonable disclosure of property or financial obligations, a marital agreement is enforceable. Section 14-2-307, C.R.S. (1987 Repl.Vol. 6B); In re Marriage of Christen, supra (holding that a clear and unambiguous agreement must be enforced as written).

Colorado Court of Appeals: Husband's Failure to Provide Full Disclosure Regarding Pre-Marital Portion of Pension Justifies Reopening Divorce Proceeding
Information Provided by: Marc A. Rapaport

The decision issued by the Colorado Court of Appeals in the case of Schelp v. Schelp provides a vivid example of how dangerous it is for a party to conceal or understate the value of their retirement assets in a divorce proceeding. In the Schelp case, after the parties' marriage was dissolved, the wife discovered that the husband egregiously understated his premarital interest in a pension. During the divorce proceeding, the husband claimed that he began accruing an interest in the pension only 23 days before the marriage. In fact, he was employed with pension benefits for more than 10 years before the marriage.

The relief entered by the trial court inflicted a severe punishment on the husband for his willful misrepresentations. Initially (during the divorce proceedings) the parties had agreed to split the marital portion of the husband's pension. After the case was reopened, the trial court amended the permanent orders, and it awarded the wife the entire marital portion of the pension. The trial court's decision was affirmed on appeal.

The bottom line: failing to fully disclose your assets in a divorce case is both unethical and very dangerous.

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