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Who Gets the House in a Divorce? Marital Property Laws in Colorado

By Tolison & Williams / July 18, 2019

Under Colorado Divorce Law, your family home is usually classified as marital property — an asset acquired by either of the spouses after marriage and before a decree of legal separation takes effect.

The courts do not take into account whose name is on the deed, and whether the title is held individually or by both parties in some form of co-ownership. If you and your family have purchased and lived in a particular house since marriage, the property will most likely get classified as marital.

What is Marital Property in Colorado? 

All property acquired during a marriage is referred to as “marital property” in Colorado. Typically, such property includes your house (and other real estate), bank and investment accounts, retirement accounts, vehicles, and other objects your family owns. 

Is my spouse entitled to half my house if we divorce?

No, Colorado is an “equitable distribution” state, not a ”community property state”. Meaning that your house — a marital property — is not automatically divided equally (50:50) during the divorce. Instead, the judge analyzes your personal circumstances and suggests a “fair” division. 

 

How is Property Divided in a Divorce in Denver?

In Denver and other Colorado counties, all the property and debt acquired during the marriage are divided equitably (fairly) between the spouses. 

When couples can't agree on their own (or with the help of a mediator) about proper division, the court can intervene and decide who gets the house after the divorce. But do mind that property division does not always mean a physical division. Most likely, the judge will decide on a certain percentage of the total value of the property (your house) that each spouse receives. 

When making a ruling regarding asset division, the judge will take several factors into account such as:

  • The contribution of each party to the acquisition of the house
  • Personal circumstances of each spouse
  • Any custody arrangements made regarding the children 
  • Each spouse's separate property value increases or decreases during the marriage
  • Pre-existing prenuptial or post-nuptial agreements

For example, if you were a higher earner in the family and contributed more to the down payment or mortgage, you’ll likely receive a larger share of the house. On the other hand, a custodial parent with minor kids is more likely to allow staying in the house if such an arrangement suits better for the children. 

At any rate, different scenarios are possible. If the matters regarding house division go to trial, it’s best to have qualified legal representation.

 

Can I Stay in the House During the Divorce?

Yes, you are legally allowed to stay in the marital house during the divorce proceedings. Unless there’s a temporary order against you, the other spouse cannot force you to move out. 

On the other hand, you may personally wish to move out of your marital house. In that case, keep the following factors in mind:

1. Financial Considerations of Moving out Before Divorce is Final: 

If the spouses choose to separate during the divorce proceedings, a lower-income spouse may petition the Colorado court for temporary maintenance (alimony). Such requests are often granted to custodial parents with kids. You’ll be also asked to start paying child support since you won’t be living together. So if you are moving out of the house during the divorce, consider the extra financial obligations. The costs of maintaining two households may be steep. 

2. Custody And Moving Out Before Divorce is Final:

It’s not advisable to move out of the marital house before you and your spouse agree on a parenting plan — a document, detailing visitation and custody arrangements — and submit it to the Colorado court. If you move out before reaching an agreement on the above or before any temporary orders are in place, it may be much harder to negotiate a fair parenting time distribution with the other parent.

 

Can a Spouse Kick You Out of the House in Colorado?

No, if the house was acquired during the marriage, your spouse cannot force you to move on their own accord. Only the court can decide on the matters of spousal eviction in Colorado. Unless there’s a temporary order in place, you have full rights to stay in the marital home until the divorce is finalized. 

But there’s an important exception to this rule. If the property was purchased by your spouse separately before the marriage, it doesn’t classify as “marital”. In such case, they may ask you to vacate the premises. 

 

What Assets Do Not Classify as Marital Property? 

Marital property does not include:

  • Gifted and inherited assets by either of the spouses
  • Real estate that was acquired using the money from selling a property acquired before marriage or a gifted/inherited property
  • Any assets acquired by either party after a decree of legal separation
  • Property excluded by a valid agreement between the two parties

Couples can also have separate property brought into the marriage or acquired during the marriage by gift/inheritance. In most cases, separate property will not have to be divided during the divorce. However, this can be a complicated matter as separate property can quickly become commingled throughout the marriage.

 

When Separate Property Becomes Marital Property

This case is best illustrated with an example. One of the spouses has used inherited money to buy a house during marriage. The acquired property was titled jointly in both spouses' names. Considering that both spouses were living and contributing to this house, the separate property could transform into marital property. In other words, it becomes commingled.

While titling isn't the definitive characteristic for determining if the property is separate or not, it could be used as leverage within a property settlement. Thus, it's worth hiring a qualified divorce attorney to assist you with property classification.

 

Does My Spouse Have to Pay the Bills Until We Are Divorced?

In general, yes. As long as their name is on the bill (separate or joint), they are required to settle them. While this decision is mostly personal, failure to pay the bills can affect the judge’s decision during equitable property division. If one person is struggling to meet the financial obligations, they may petition the court for temporary financial support. 

 

Can You Stay in the House After Divorce?

The court can order the sale of the house. It can also administer the property appraisal and take into account other circumstances to estimate the house worth.

However, if the custodial parent wishes to live in the property, the sale can be delayed until the children graduate high school. The house can also be awarded to only one of the spouses and/or grant them exclusive occupancy rights. In this case, one spouse can legally reside in the house, while another one must find another place to live. Such provisions can be made during divorce for the safety of either party.

 

Hiring a Colorado Attorney to Help with Property Division 

The ultimate decision about who gets the house in a divorce will depend on a variety of different factors and personal circumstances of each spouse. While custodial parents are usually given the preference, it may not always be the case with commingled property. Hence, it’s worth hiring a professional divorce attorney early on if you want to ensure that your rights are not eschewed during property division.

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