Separation Agreements

Rather than fight over assets and debts, you may enter into an agreement with the other party on how to divide everything, in which case you may never have to see the inside of a courtroom.  When negotiating a separation agreement, you will want to keep in mind the following.

Colorado, like most states now, is a no-fault divorce state.  This means that people may divorce without the need to show fault by one of the parties.  In fact, in Colorado, Courts are prohibited from considering marital fault or misconduct, such as infidelity, when dividing marital assets.  The courts may, however, consider “economic” fault.  The law states, a Court “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; and

(d) 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.”

Unlike other states, Colorado is not a “community property” state.  This means that the parties need not be accorded equal shares in the marital estate. The Court is required to distribute property equitably, not equally.  Because of this, the Court may consider a variety of factors.  There is no mathematical formula for establishing a just and equitable property settlement or alimony.

Economic fault comes into play when a spouse dissipates marital assets in contemplation of divorce.  For example, if a husband buys a Harley Davidson for himself just before filing for divorce, the Court is more likely to apportion the assets and debts to offset that expense so the spouse who bought the Harley bears the debt.  Economic fault may also be considered in apportioning debt and assets if one spouse incurred gambling debt, expenses associated with criminal conviction and incarceration, or one spouse damaged the property of the other spouse in retaliation.  In one case, where a wife, in an outburst of emotion, damaged and destroyed the husband’s personal effects, the Colorado Supreme Court upheld the trial’s court’s decision to award the husband the value of those assets against the wife.  In short, while the Court may not consider the moral and social impacts of a spouse’s conduct during the marriage, it may consider the economic consequences of such conduct in apportioning debt and assets in order to effect an equitable division.

You can protect yourself by not hiding assets, refraining from making expensive purchases just before filing, and of course, refraining from incurring huge gambling debts or destroying your spouse’s property in anger. Make sure to tell your attorney all the reasons you believe property should be divided a particular way.