Getting divorced is stressful. There’s much to do, especially when it comes to dividing assets. This is a tedious process where arguments can erupt over who gets the house, who keeps what furniture, or who keeps the antique jewelry. These conflicts can disrupt the divorce process and cost you more money in the long run. In this article, learn how courts value property and asset division so you can navigate the process in a cost-effective manner.
Equal does not mean equitable. Colorado courts seek to distribute marital assets fairly, and it’s easy to end up on the wrong side of equity if you aren’t careful.
Marital property is all property and assets acquired during the marriage. It doesn’t matter who acquired the property or to whom you and your spouse agreed it should belong. If it was obtained during the marriage, the courts put it on the roster of items to be divided between you and your ex.
Whatever your net worth, it’s important to know what your assets are and when you accumulated them.
This is a crucial step in the divorce process. Create a comprehensive list of your and your ex’s assets and debts for the court to divide. Also, provide the current fair market value of each asset and listed property. If you are unsure of an item’s value, have it appraised. An experienced divorce attorney can offer guidance.
Be thorough and transparent with your list. Unless the parties cooperate or work with a mediator, your ex’s lawyer will advise them to take their own inventory.
When it comes to marital property, there’s a presumption that any property acquired or debt incurred during the marriage is marital. However, that’s not necessarily the case.
Valuables gifted or bequeathed specifically to either spouse during the marriage can be considered non-marital property. That also goes for anything owned separately by you and your spouse before the marriage.
Sorting out non-marital property can be complicated as many valuables get commingled during a marriage. Sometimes, the court must divide even non-marital property during the divorce to establish equity.
If you’ve purchased investment assets, such as real estate, with money you had before getting married, it can become marital property in a divorce. Let’s look at an example of how this can happen:
You inherited a sizable trust fund before getting married. After tying the knot, you cashed in your trust fund to buy a new family home. Your and your spouse’s names are on the title. Since both of you lived in and contributed to the house, it can become divisible property even though you purchased the home solely with funds you brought into the marriage.
Colorado is an equitable division state when it comes to dividing assets. This means courts seek fairer asset distribution based on a number of relevant factors, such as each spouse’s contributions and liability.
The court also considers the fair market value of the property the day the divorce decree is signed. If a property disposition hearing becomes necessary, the court will rely on the property value on that hearing date.
Note: The court’s determination of an asset’s fair market value must only be reasonable in light of the evidence presented to avoid appellate review. Also, the court can base its asset valuation on limited evidence, such as each spouse’s testimony and financial affidavits, if that’s all it has to go on.
Each spouse in a divorce is required to complete a Sworn Financial Statement that includes a detailed list of the current value of their assets and debts. While the can use this information in determining asset division, it can disregard values provided by one or both spouses and make its own determination.
Various methods can help determine the value of specific marital assets. However, no single method covers every type of property.
Colorado courts use several accepted methods to value marital property based on the asset and available information.
Comparable sales are also referred to as a market comparison approach. It’s frequently used for real estate valuation. This method compares the asset in question to recent sales of identical or similar assets.
This approach has its drawbacks, including the timeliness of recent sales and how the evaluator defines comparable sales.
For real property, it’s best to use real estate agents to determine the property’s value. Never rely on tax appraisals or outdated valuations.
If real property is claimed as separate property, a historical valuation is needed to determine its value prior to the marriage because a property’s appreciation can be considered a divisible asset.
Colorado statutes define how and when the government values real property such as homes, undeveloped land, and some personal property – for tax purposes. This is known as the property’s assessed value.
Assessed values are not often used in divorce cases. This is because the assessed value can be based on outdated information and tends to ignore actual market conditions.
Liquidation is most applicable to business interests. It assumes the business will be dissolved in the divorce proceeding and that its assets will not be sold together as an ongoing operation.
Liquidation frequently results in a lower total value because many items with higher value in an ongoing business would be difficult to sell for more than scrap or salvage value.
Capitalization of earnings is another business-interest valuation method. It assumes the business will be sold as a whole and will possibly remain in business after the sale.
The business’s market value is determined by multiplying its average net earnings by a capitalization factor. This reflects a reasonable rate of return after considering current interest rates and the risk associated with the business’s market.
The liquidation method almost always requires expert testimony.
Book value is another business-interest valuation method. The owner’s net equity is determined by subtracting the business’s liabilities from the value of its assets.
Book value is most used by a party to minimize a business’s value.
The valuation of assets in a divorce is not unlike determining their value in other settings, such as selling homes or businesses. There are no legal formulas or algorithms like those used in calculating equitable child support and spousal maintenance awards. Courts are simply looking for reliable methods and accurate, current values.
The courts may consider other factors when determining marital asset values to ensure the divorce is treated equitably. Let’s take a look at the additional factors that could come into play when dividing marital property.
Sometimes, the parties may agree to some or all the assets’ fair market value. This is called stipulating value.
Stipulating the value of assets can avoid the cost and time required to go to court to argue the value of the assets. However, if you decide to take this route, the agreed-upon value must be current to meet the court’s duty to value the assets as of the decree date or disposition hearing. In other words, you cannot over- or under-value the assets.
The value of certain assets might be all you and your ex-spouse agree on. Stipulating to the value of, say, a vacation property does not mean you’re in agreement over who contributed more to its purchase, upkeep, or appreciating value. You may still dispute whether the asset is separate or marital property and how it should be divided.
Property presented as separate property must be valued as part of the court’s determination of the equitable division. The asset’s value prior to the marriage should be compared to its current value to determine any increase in value, if any.
While the asset itself may be one party’s separate property, the increase in its value during the marriage may be included in the marital estate.
A spouse dissipates marital property when they intentionally waste or squander assets to deprive the other spouse of benefitting from them after the divorce. A dissipation claim can be made if one spouse squandered or misused marital money as the marriage was breaking down. A classic example: a husband uses marital money to maintain a romantic affair.
If the spouse accused of dissipating assets cannot prove the funds were legitimately spent, a judge can adjust how assets are divided to counterbalance the misused money.
It’s important to protect your interests as you work through your divorce. Our knowledgeable and compassionate divorce attorneys can help you through the financial disclosure process to ensure all your property is accounted for and that it’s appropriately valued. Call 303-688-0944 for your case assessment.
*The terms asset and property are used interchangeably unless the property is referred to as real property, which indicates real estate, such as houses and land.