PROPERTY AND DEBT DIVISION
When two people separate, the question naturally arises how to divide their property and debts. In Colorado, the legal standard for this is that the division must be “…in such proportions as the court deems just after considering all relevant factors…” C.R.S. 14-10-113. The kinds of things typically considered by a court are how each spouse contributed to acquiring marital assets (including the contribution of a homemaker), value of separate property and the economic circumstances of each spouse.
In Colorado, the only property which may be divided by a court in a divorce is marital property. That is defined as any property acquired during the marriage, except by gift or inheritance. It also includes any increase during the marriage in the value of non-marital property. Thus, whatever you and your spouse acquire together is likely to be marital property, and can be divided in a divorce. This includes retirement benefits, whether defined contribution (like an IRA or 401k) or defined benefit (a pension that promises to pay you each month once you retire). Also, as long as you and your spouse acquire the asset during the marriage, the manner in which it is titled does not change the classification of the asset as marital.
During the course of the divorce process, you and your spouse will be required to exchange documents showing ownership and value of property, and whatever debts you have, so that each of you (and the court if necessary) has the information needed to make informed decisions about dividing your property and debts.
We work hard to use the best information available to negotiate a fair and lasting agreement in each case. The result is that very few of our divorce cases actually require a court to decide how to divide property and debts. A negotiated agreement will generally work better for you and your spouse, since many details which are beyond the scope of a judge’s authority or time can be worked through by you, your spouse and your lawyers.
MAINTENANCE AND ATTORNEY’S FEES
It is fairly common for one person in a marriage to earn more than the other. Sometimes this difference is so great as to make it fair for one to pay spousal support to the other for a time. Such spousal support is known as maintenance.
The purpose of maintenance is to support the former spouse until he or she is able to support himself or herself. There are a number of complexities in this seemingly simple statement, however. For instance, the question of ability to support oneself is the subject of many a negotiation and a fair number of court hearings. Also, how much can a spouse who has never worked during a very long marriage reasonably be expected to work? And what are the reasonable living expenses which legitimately should be paid?
The statute which defines maintenance is C.R.S. 14-10-114. It defines maintenance during two time frames: temporary maintenance, applicable after a divorce is filed with the court and before the case is finished, and maintenance following divorce. There are some different rules that apply to these.
Temporary maintenance may be decided by a formula, if the combined income of both spouses is $75,000 or less per year. If that is the case, a calculation is performed, subtracting 50% of the lower earning spouses gross monthly income from 40% of the higher earning spouse’s gross monthly income. The difference is the amount of maintenance to be paid. There are some wrinkles in this calculation, which we can describe to you. Also, if the combined incomes are more than $75,000 per year, the formula does not apply, and maintenance is determined as described below.
Maintenance following divorce is not calculated according to the formula. Instead, there are two decisions to be made. First, does the person asking for maintenance need it? This turns on whether he or she makes enough from appropriate employment or income from assets to pay for his or her reasonable needs. If the answer is no, then that person needs maintenance.
The next decision is how much maintenance should be paid for how long? There are a number of factors to consider under the statute, including the length of the marriage, the age and health of the parties, the standard of living enjoyed during the marriage, the ability of the person asked to pay maintenance to meet his or her own needs while meeting those of the person seeking maintenance, and others. As you might guess, there is usually more than one way to look at the situation. Our job is to help you understand the intricacies of maintenance, and to reach a resolution consistent with your needs.
Attorney’s fees can be a significant cost in a divorce. The amount of the fees is related to how simple or complex your situation is, the level of disagreement between you and your spouse, and of course the hourly rate charged by your lawyer. As a general rule, you are responsible for paying your own fees.
However, it is often appropriate for one spouse to pay all or at least a part of the other’s fees and costs of representation such as expert witness fees. As a statutory matter, the court has authority to order one spouse to pay all or a portion of the other’s attorney fees and costs. C.R.S. 14-10-119. If one spouse has substantially higher income or access to more assets than the other, it will likely be considered appropriate for the more financially well-to-do spouse to help pay the other’s fees and costs.
The idea behind this is that it is important for everyone to have access to a lawyer and experts that might be needed. Bear in mind that it can take months to get such an order, because of the pace of judicial process.
Because of this possibility, you will likely agree that it is in your interest to always consider the value of what you are trying to accomplish with your lawyer or experts. Some tasks are best done by the professionals you hire; others are more quickly or cheaply done by you. We believe in working with our clients to help them keep their fees and costs down.