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Can You Divorce Without Splitting Assets?

Can You Divorce Without Splitting Assets?

November 14, 2022

When married couples split up, dividing assets is often one of the most sensitive and contentious issues they face. Can you divorce without splitting assets? Not every asset that you own is subject to division, so, yes, you may be able to divorce without splitting all of your assets. If there is a particular marital asset you do not wish to split, you may be able to negotiate that your spouse gets a different asset of equal value. 

Only those assets that are considered marital property are subject to being split. Assets and property that you already had when you married are generally considered separate property and are not subject to being split between spouses upon divorce. 

When divorcing, you and your spouse may be able to come to agreement between yourselves or with the help of your attorneys on how assets will be split. If an agreement is not possible, your assets will be divided by a judge, using the rule of equitable distribution. 

What is Equitable Distribution of Property?

The country uses two different rules for dividing property and assets in divorce. Colorado and the majority of states follow the rule of equitable distribution. Nine states are community property states. With equitable distribution, the court will split your assets and debts in a way that the judge deems is fair and equitable based upon the unique circumstances of your marriage. This division does not necessarily mean that everything will be divided in a 50/50 manner, as it would be in a community property state. Rather, the judge will look at a variety of relevant factors to determine what is fair to both parties when deciding on splitting assets.  

Factors Judges Consider When Splitting Assets in Divorce

Colorado statute § 14-10-113 describes how property is divided in divorce under the rule of equitable distribution. Major factors that judges consider in making equitable distribution decisions include:  

  • How each spouse contributed to acquiring the marital property, including as a homemaker
  • The value of properties attributed to each spouse
  • The economic situation of each spouse
  • Which spouse has the majority of responsibility for minor children
  • Increases or decreases in the value of separate property of each spouse
  • Whether separate property of a spouse was depleted for marital purposes.

Not all property that spouses own is subject to division. Only assets that are considered marital property will be split in divorce. Spouses will typically retain their separate property and assets.

Marital Property versus Separate Property

What is considered marital property? Generally speaking, marital property is the all property and assets gained by spouses during the marriage and prior to legal separation. Marital assets can include family homes, vacation homes, cars, boats and other vehicles, businesses, savings accounts, retirement accounts and pensions. Separate property is property that a spouse had prior to the marriage. Exceptions to this can be when spouses are not careful and commingle their separate assets during marriage or add the other spouse’s name to what was separate property. When this happens, separate property may be considered marital property in divorce. 

Before assets can be split, it must be clearly determined what is marital property and what is separate property. Sometimes there is dispute between spouses over whether an asset belongs to one party or both. A skilled divorce attorney can help you determine what will probably be considered marital and separate property by the courts and may be able to negotiate a satisfactory solution for asset division with your spouse without going before a judge. 

How Do I Protect My Assets Before Divorce?

We know that people generally do not go into marriage planning for divorce. But the reality is that many marriages do end in dissolution, so it can be wise to take steps to protect your assets in case of divorce. This can be especially important for high-income couples experiencing divorce who own multiple businesses, have complex investment portfolios and more complicated financial lives. 

There are several things you can do toward protecting your assets before divorce:

  • Keep thorough records of all of your assets, those you had before marriage and those gained after marriage. Avoid commingling your separate property with marital property by keeping your separate monies in separate bank accounts and not adding your spouse’s name to separate assets. 
  • Put your separate assets in a living trust before marriage. While assets you had before marriage would generally be considered separate, moving these assets into a trust can help prevent commingling during marriage. 
  • Move assets for children from previous relationships into an irrevocable trust for their future.  Putting assets for their future into an irrevocable trust can protect those assets from being split in divorce.
  • Have a prenuptial or postnuptial agreement drafted to protect assets that you wish to keep should you divorce, such as a small business. 
  • If you own your own business, consider keeping it completely separate from your spouse. Do not allow them to invest money in it or work for the business, even if it is in an unofficial capacity. 

It is never too soon to speak with a family law attorney who can review your unique situation and provide informed legal guidance about protecting assets during marriage and in case of divorce. Even if you are still planning the wedding and divorce is the last thing on your mind, if you have significant property and assets, it is to your benefit to protect them as you can never know what the future will hold.  

Hiding Assets in Divorce

Some people try to hide assets when they believe separation and divorce are imminent. This practice is actually not uncommon. They may move money from marital bank accounts into their separate accounts or transfer property into the names of family members, for example. Hiding assets is not only illegal, but it can result in losing more than is gained when judges learn of these deceitful actions. 

Always use honest means to protect your assets before divorce. Do not try to hide assets from your spouse or the court, even if you are angry at your spouse for the marriage breakup or because you feel you contributed more to the marriage and therefore should get more. 

And if you suspect your spouse may be hiding assets, speak to an experienced Colorado divorce attorney right away. An attorney can investigate your suspicions to determine possible asset concealment. 

What Assets Cannot Be Split in a Divorce?

As previously discussed, assets that you had prior to your marriage are considered separate property and, unless they have become mixed in with marital assets, are not subject to being split in divorce. Gifts and inheritances that were given to you only during the marriage are not split in divorce—these are yours to keep. Assets in prenuptial and postnuptial agreements cannot be split in a divorce as long as the agreements are proven to be legally valid. If you have put assets into an irrevocable trust for your children’s future, or another type of asset protection trust, these assets cannot be split in a divorce. Assets and property that you acquired after legally separating from your spouse are also not subject to being split in divorce. 

If you need advice specific to your situation about what assets cannot be split in a divorce, reach out to a Colorado attorney. Our divorce attorneys at The Cossitt Law Firm have extensive experience helping divorcing spouses get the best possible outcomes in property division decisions. Call us today at (970) 488-1887.

Is the Family Home Split in a Divorce?

One of the big worries many people have in divorce is what happens to the family home. Depending on the individual circumstances of a divorcing couple, such as whether they have children or whether one party wishes to keep the home, there are different possibilities for how the family home may be handled in divorce. 

In some cases, the home may be sold and the proceeds divided between the parties. In other cases, if one spouse wishes to keep the home, they could buy the other party out, or other assets equal to half of the home’s value may be awarded to that party. Judges may award the family home to the parent who has main custody of children and award equal assets to the non-custodial spouse. Every divorce situation is unique and requires tailored solutions related to asset splitting. Our Colorado divorce attorneys have extensive experience handling property division matters and will work hard to achieve a fair asset-splitting outcome for you.  

Reach Out to a Colorado Family Lawyer for Help with Asset Division in Your Divorce

Divorce is stressful all around. At The Cossitt Law Firm in Colorado, our family law attorneys understand the stresses and confusion involved in marriage breakups and do our best to make the proceedings go as smoothly as possible. We’ll advocate on your behalf throughout all the steps in the divorce process, including when it comes to the fair and equitable division of property. If we are unable to negotiate a satisfactory property division agreement outside of the court, we will vigorously represent your rights and interests in front of the judge. Call us at 970-488-1887 to arrange a consultation.

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