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.
There are several exceptions, though. 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.
How The Courts Decide on House Division
In Colorado state, all the property and debt acquired during the marriage are divided equitably (fairly) between the spouses. However, equitable distribution does not mean equal (50:50) per se.
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 receives 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 including the contribution of each party to the acquisition of the house, personal circumstances of each spouse, and any increases/decreases in the value of the separate property each spouse had during the marriage.
Can You Lose Your House?
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.
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.