winghaven

Colorado judges ignore marital misconduct and make judgments on divorce matters without regard to who did what to whom. Many persons find it frustrating that the judge will not hear the wrongs and insults they have suffered at the hands of their spouses. Although some states still try issues of fault, such as infidelity, cruelty, abuse, desertion, etc., Colorado does not. The legislature has chosen to abolish the fault system in the matter of divorce and family law, believing that the process of assessing blame only makes relations worse between the spouses. Divorce is based on irretrievable breakdown of the marriage. That means that if one spouse wants out of the marriage, he or she can obtain a divorce in Colorado whether the other spouse agrees or not. marriage. Marital fault may back into the picture when it affects a party's ability to parent a child, or there is a request for a restraining order, but absent such matters, it will not be considered. The court has limited time and many litigants, and the last thing the judge wants to hear about is infidelity and other marital misconduct.

Property Division

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All marital property is subject to division in Colorado. Property is marital, unless it is excluded under the law. Exclusions include property acquired before the marriage, inheritances, gifts to one spouse which were not joint gifts, and several other categories. Increases in value of a spouse's separate property is considered to be marital. Property can be divided without regard to legal title. Property division can be extremely complex, because property acquired prior to a marriage or as a gift must be valued both at the time of the marriage or gift and again at the time of the trial. Consideration is also given to debts, so that it is the overall equities which are divided, not just the asset value.

In the majority of cases, the parties end up with the personal property and vehicles in their possession during the divorce. He gets his car, and she gets her car. Encumbrances usually go with the vehicle. Likewise, if a party keeps the family home or furniture subject to a mortgage or other encumbrance, that party will have to make the payments. Even when the other party is ordered to pay a debt for property received by the other party, there is no absolute assurance that will happen. A party may simply ignore the order or lack the ability to pay. In some cases bankruptcy is filed, discharging the obligation.

Ordinarily the Colorado court will apply Colorado law to the property division. In some cases, however, where property was acquired prior to a move to Colorado, the law of a different state may be applied. If a major item of property was acquired when living in a different state, the attorney needs to know so that he or she can determine whether the law of a different state should be argued. If Colorado law is more favorable to the client, however, then the client would not want to apply the other state's laws.

Equitable Division

Property Division is supposed to be "equitable." The court must consider a list of statutory factors in making the division. Often the court will find that the factors offset each other. The result may simply be an equal division. In other cases, the court may find one factor or another sufficient to justify an unequal division. The case law does not require a precisely equal mathmatical calculation. It requires that the division be objectively "fair and equitable."

Some divorcing couples will have a sense of what is fair and just to the other, and they will find it easy to come to an agreement. It is common, however, to find that unresolved emotional attitudes make it difficult to reach an agreement. Such cases will take longer to process, and they will be more difficult to resolve.

Mining Exchange Building, Suite 207
8 S. Nevada Ave., P.O. Box 757
Colorado Springs, Colorado, USA 80901-0757
tel: (719) 635-4716 or 1-800-747-4716 fax: (719) 635-1221