Separate v. Marital Property: Why it Matters in your Divorce

Separate v. Marital Property: Why it Matters in your Divorce

Every divorce in Colorado deals with dividing the marital estate between the spouses. This division is at the heart of what a divorce truly is: the breakup of an entity. While married, spouses are a single entity in the eyes of the law. The dissolution of that marriage requires an allocation of the property and debts acquired during the marriage between two individual people.

The first step in the division process is identifying whether the property owned by each spouse is marital or separate. “Property” includes assets and debts. In Colorado, how an asset is titled does not automatically qualify it as one or the other. For example, a home purchased during the marriage but only titled in one spouse’s name is still considered marital property.

The distinction between separate and marital property is important because marital property is subject to division as part of the divorce, while separate property is not. Separate property belongs entirely to the spouse who owns it, and the other spouse has no legal claim to it. As long as it is not commingled with marital property, property inherited or gifted to one spouse during the marriage is generally considered the separate property of that spouse. It’s important to know, however, that if the value of the inherited property appreciates during the marriage, the appreciation is marital. Property identified in a marital agreement as separate property also generally keeps that distinction in a divorce.

Once all the property owned by each spouse is identified as separate or marital, anything identified as marital is divided between the parties. Colorado is an equitable distribution state, which means marital property is divided fairly, not necessarily equally. Ideally, the spouses themselves come to an agreement on how to divide the marital property. If they cannot, however, the Court will step in and make that decision.

If you are unsure whether your property is separate or marital, consider working with an affordable attorney. An attorney can help guide you through the process and help explain how property may be divided. To help keep costs predictable and manageable, consider working with an attorney who offers flat-fee rates.

If you are interested in talking to a lawyer who offers flat-fee rates and unbundled legal services for divorces, schedule your free consultation today.


This website includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems.

Lauren Lester is an affordable family law, estate planning, and probate lawyer licensed in Colorado.

1 Comment