We have all been faced with the following situation: there is one slice of cake left and everyone wants a piece. How can you ever hope to divide the remaining piece so that everyone who wants some is satisfied? Well, the simple answer is that you cannot without some form of compromise. Similarly, ending a marriage, dividing property, and agreeing to a parenting plan, all involve choices, and compromises. Sometimes folks seeking a divorce are like my children were when they were younger. Frequently, when faced with the cake division question, one of my children would say, “Well, I made the cake, so it is mine.” Or another of them might say that their brother or sister was bad so they did not deserve any of the cake, or that their name was on the cake so it was theirs. While each of these arguments had significance for my children they carried little weight with the ultimate judge in the family; MOM! So it is in the domestic arena.
Often in the family law arena I will have a client say that the marital home is theirs because the home is in their name alone. Absent some exceptional circumstances this is generally not the case. At the very least, a spouse is generally entitled to one-half of the increase in value of the home, or any other property for that matter.
There is good reason for this. One is that when we marry our lives frequently become intertwined economically with the lives of our spouse. For example, while I was in the Army my wife was a stay-at-home mom. Even though she was not formally employed, she certainly worked. She raised our children, and she made my career possible. The benefits she provided were intangible, but were nonetheless substantial. I simply could not have done what I did without her; consequently, were we to divorce it simply would not be fair to segregate property simply because she did not earn the money or because her name was not on a deed or title.
The Colorado legislature has recognized this, and this recognition is captured in our state laws governing dissolution of marriage. Accordingly, understand that a court will make an equitable distribution of the property which comprises the marital estate. Also understand that equitable does not mean equal, so a court is not obligated to divide everything equally.
There are a number of variables that come into play, but the general rules are that property which was acquired during the marriage is marital in nature and subject to division. Property acquired before the marriage retains its separate ownership, but any increase in its value is marital and also subject to division. Likewise, if property has become co-mingled it loses its separate property identity. An example of this is when one spouse receives an inheritance. If the spouse receiving the inheritance keeps the money in a separate account with only their name on it there is a good chance the property is theirs alone, and the only portion divisible is the increase in the overall value. If the inheritance in placed in a joint account then it is no longer separate but has become marital.
The rules can be confusing, so contact us so we can review your case. Just understand, it likely isn’t all yours and some choices and compromises will have to be made.