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Division of the Marital Home
Following is What You Should Expect When it Comes to Dividing Your Home
Many times in a Colorado divorce, the largest asset, and the largest debt, a couple has are the same thing – the marital home. Typically, the parties have some equity in their home and the largest share of marital debt is represented by their mortgage. In a divorce, the court must divide all the assets, including the marital home.
Real Property in Colorado Divorce Cases
One of the first questions to arise in a divorce case where we have real property to be divided – such as a house in Colorado – is to identify if the house is marital or separate, or both. Marital property is generally property that was acquired during the marriage, using marital funds. Separate property is generally property that a spouse had prior to the marriage or which is separate by agreement of the parties.
Property can be both marital and separate in some cases. For example, a party owned a house prior to the marriage, but that house has increased in value significantly. The increased value is a marital asset, subject to equitable division in a divorce. If the mortgage on the house was paid with marital funds, the separate nature of the property is further clouded.
Identifying, or “tracing,” separate property is a complex endeavor best left to experienced divorce lawyers. Occasionally, our Denver divorce attorneys will retain experts to help determine which portions of one of these hybrid properties is marital and separate. These experts put their experience and credibility to use in arguments over the extent of separate property in assets like marital homes.
In determining how to divide a marital home, Colorado courts consider many equitable factors. These factors may include:
- Length of the marriage
- Value of assets and debts already awarded
- Prenuptial agreements
- Tax consequences
- Relative needs of the parties
- Contributions of each spouse
Title to the House
Very often in divorce cases, we find situations where the title to the house is in one of the spouses names only. There are many reasons for this arrangement. For example, a spouse’s credit rating may not be good enough for a mortgage company to extend a loan. Regardless, the fact that a house may be titled in only one name does not preclude the divorce court from equitably dividing the marital home. As far as the divorce court is concerned, a marital home is joint property.
Who Keeps the House?
Recently, homes have begun to appreciate in market value again. Instead of worrying about deciding which partner will be left with the debt associated with the marital home, we now are starting to look at how to fairly divide equity. Still, though, during a divorce, finances are tight. A spouse may not want to keep the house because of the debt associated with it. The mortgage payment may be more that either spouse wants to assume on their own. It may be too big of a house.
When neither spouse wants to keep the home and assume the mortgage, a divorce court will most likely order the parties to sell the home and divide the asset, or debt, between the two of them. Occasionally, circumstances arise where both spouses want to keep the house, and both spouses are capable of making the mortgage payment. In this situation, unless it can be resolved by settlement, the court is forced to look at a wide variety of factors in deciding what happens. It may still order the house to be sold, or it may award the house to one of the spouses.
But in these circumstances, the outcome is usually distasteful to everyone involved. It’s best to resolve the question of the marital home outside of court, if possible. One of the most difficult discussions divorce lawyers have with their clients is when they need to sit down and discuss the reality of potentially losing their home. For many people this is a very personal loss and it’s often unexpected. Yet having this discussion early on can help soften the blow of what can be very difficult change.
Do you have any questions? Want to discuss your case? Call our firm today at (303) 394-3030.