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Protecting Assets in Divorce – Why Isn’t This Just 50/50?!

On Behalf of | Sep 15, 2014 | Divorce |

Most people think that all assets in the divorce process are divided exactly 50/50.  However, property does not have to be divided equally, just equitably and justly. The relevant statute (Colorado Revised Statutes § 14-10-113. Disposition of property) says, in part:

(1) In a proceeding for dissolution of marriage or in a proceeding for legal separation or in a proceeding for disposition of property following the previous dissolution of marriage by a court which at the time of the prior dissolution of the marriage lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court, subject to the provisions of subsection (7) of this section, shall set apart to each spouse his or her property and shall divide the marital property, without regard to marital misconduct, in such proportions as the court deems just after considering all relevant factors including:

(a) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(b) The value of the property set apart to each spouse;

(c) 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….

A relevant case found that a division of property must be equitable, not necessarily equal. In re Marriage of Antuna, 8 P.3d 589 (Colo. Ct. App. 2000)

In most circumstances, most courts will divide the marital assets equally. However, it is possible that the court can give one spouse more than 50%, especially when one of the spouses may have difficulty earning as much income as the other spouse due to lack of training or a disability.

Martial misconduct is not to be used as a factor in division of property. However, the court can take into account what may be described as “economic fault.” If for example one of the spouses received a criminal conviction and ended up with substantial fines and expenses associated with this, the court may very well take this into account and not divide these expenses between the parties or it may give the other party in the divorce an adjustment in the division of property to offset this expenses. This issue came up in the case of . In re Marriage of Casias, App.1998, 962 P.2d 999. In dividing marital assets, trial court was advised not to consider any marital fault or misconduct on part of husband, however, in reaching equitable property division, trial court was allowed to consider any economic circumstances resulting from husband’s criminal conviction and incarceration, including husband’s substantially reduced financial needs to meet living expenses relative to those of wife