One of the more difficult aspects of financial division in a divorce is figuring out what is marital property and what is separate property. Its really important that you identify and claim separate property early so that your team can help you figure out what is yours that does not have to be shared with your spouse. In order to claim your separate property you need to understand what it is first.
Don’t Make These Three Biggest Mistakes With Separate Property
What is marital vs separate property?
Separate Property:
Assets that are only the property of one spouse and is not divisible as part of the marriage. This is defined by the statutes. Examples of separate property can include:
- Money that one party had when they entered the marriage.
- Inheritance that one party received either before or during the marriage.
- Gifts received from others to just one party.
Marital Property:
All assets are presumed to be marital property unless a party can prove that they are separate property. Marital property can include:
- All money saved during the marriage.
- Equity in real estate.
- Retirement funds earned during the marriage.
- Growth in separate property.
- Any assets that you cannot prove are separate property.
When is Separate Property Still Marital Property?
Separate property assets often have part that are separate and part that are marital. This is because in Colorado the law states that any growth in separate property is divisible as a marital asset. An example will be helpful.
Pat owns a house when they get married to Jan. The equity in the house when they got married was $200,000. They have been married for 10 years. The equity in the house is now $400,000. The growth in the value ($200,000) is divisible marital property. That means that the $200,000 is included as what should be divided between them. (Sometimes this is done equally, but more often you balance the assets and don’t divide each individually. For more on this, see our blog Equitable vs Equal: Dividing Assets and Debts in Divorce )
The original equity in the house is Pat’s separate property. The growth is divided between them. An example of how they might divide the house equity is:
| Value | Pat | Jan | |
| Original Equity | $200,000 | $200,000 | $0 |
| Growth in Equity Equally Divided | $200,000 | $100,000 | $100,000 |
| Total to Each | $300,000 | $100,000 |
If you want to make sure that you protect your assets, Contact Us today to talk to an experienced attorney. Let’s create solutions together.
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