The division of marital assets is one of the most contentious aspects of the Denver divorce process. For many divorcing spouses in Colorado, a common question is: “Do I have assets that my spouse can’t touch during our divorce?”
Under Colorado § 14-1-101, the fair and equitable division of marital assets does not impact separate assets. A spouse may retain their separate assets during a divorce; however, it’s crucial to understand what constitutes a separate asset and when those lines may be blurred by commingling.
When considering the division of marital assets, the court requires that the division be fair to both spouses, rather than a precise 50/50 division. Colorado’s divorce laws require a “fair and equitable” division of all marital assets and debts during divorce, leaving the parties on equal footing. This may be a straightforward process for short-term marriages between spouses who don’t own a home and have few assets, but it can quickly become complex when spouses own property, maintain retirement plans, hold investment accounts, or have diverse financial portfolios.
Only assets acquired during the marriage are subject to division. Separate assets belonging only to one spouse alone are not considered marital assets. Assets that one spouse may retain during the divorce without dividing their value with the other spouse include the following:
On the other hand, any real estate property, vehicles, accounts, valuables, and household items acquired during the marriage belong to both spouses, regardless of whose name appears on the account, title, or deed, and are subject to division and fair distribution.
It may seem clear that something you owned before your marriage or inherited is yours alone. Still, it’s essential to understand how commingling can affect a separate asset and give your spouse the right to claim a portion of that asset during divorce.
Commingling is common during marriage and occurs when one spouse grants the other spouse access to an account, often granting that spouse the right to a portion of the asset’s increased value since the time of access. Also, when a spouse spends their time, talent, or money improving an asset belonging to the other spouse, such as real estate property or a business, they have a right to half of the asset’s increased value.
One way to ensure that commingling does not compromise a separate asset and leave it subject to division in a divorce is to create a prenuptial agreement that establishes terms to protect specific separate assets from commingling during the marriage. A well-executed prenuptial agreement specifies how assets are classified as separate or marital during the marriage and how they will be divided in the event of divorce. Contact our experienced family attorney in Denver for a free consultation today.
