McWilliams Mediation: Knowledgeable

Knowledgeable

Division of Marital Assets/Debts

While the division of marital assets and debts might seem to be a fairly straight forward process, it is not.  It is filled with twists and turns that can challenge the unwary.  The first question to ask is whether or not you have a valid premarital or postmarital agreement that will govern the division of your property.  If the answer to that question is “yes,” you may have already arranged for the division of your property and debts upon divorce.  If you’re not sure whether such an agreement is valid, you may have to obtain a decision from a Judge.

If you do not have such a pre or postmarital agreement, you will need to identify your marital and your separate property.  Marital property is any property that is acquired during the marriage not by gift or inheritance.  If you had property before you were married or received property during the marriage by gift or inheritance (and you kept it in your separate name), it could be considered to be separate property that is not subject to division.  However, just to make things complicated, any increase in value to your separate property that accrues during the marriage is considered to be marital property and is subject to division.  So, once you identify your property and classify it as marital or separate, you will want to value it.

Some of your assets may need to be valued or appraised.  Do you own property?  Do you and your spouse agree on the value?  How about an interest in a publicly traded or closely held business?  Do you own stock options or have a beneficial interest in a trust? You may have to use experts who do this type of work, and you’ll want to discuss this with an attorney who is familiar with this process.

Colorado is an equitable distribution state, which means that property does not have to be divided equally.  The division of your marital assets and debt will, however, affect your decisions regarding maintenance or alimony.  Those two issues are like opposite sides of the same coin, and they affect one another.