Divorce can be a complex and emotionally charged process, especially when it comes to dividing assets. One of the most significant assets in a marriage is the marital home. If you are facing a divorce in Colorado, you may wonder: Who gets the house? The answer depends on several factors, including Colorado’s property division laws, financial circumstances, and any agreements between spouses.
Understanding how Colorado courts determine property division can help you prepare for the process and make informed decisions about your future.
Is Colorado a Community Property or an Equitable Distribution State?
Colorado follows the equitable distribution model rather than community property rules. This means that the court does not automatically split marital property 50/50. Instead, the court considers various factors to divide assets fairly, though not equally.
Depending on the specifics of the case, the home may be awarded to one spouse, sold with proceeds divided, or handled through alternative agreements.
Marital vs. Separate Property: How Does It Impact Home Ownership?
Before deciding who gets the house, the court must determine whether the property is marital or separate.
- Marital Property: Generally, property acquired during the marriage is considered marital property and is subject to division. If the couple purchased the home after marriage, it is likely marital property.
- Separate Property: Property owned by one spouse before the marriage is typically separate property and is not divided in a divorce. However, if the individual property increased in value due to marital efforts or if both spouses contributed to its mortgage, renovations, or upkeep, the court may consider part of the property marital.
If the home was acquired before marriage but jointly titled or paid for with marital funds, it may be treated as marital property despite initial ownership.
Factors Colorado Courts Consider When Dividing the Marital Home
Since Colorado follows an equitable distribution model, courts take several factors into account when determining what happens to the house, including:
- Each spouse’s financial situation: The court considers both spouses’ income, assets, and financial resources. If one spouse cannot afford to maintain the home independently, the court may order its sale.
- Child custody arrangements: If children are involved, the court may prioritize awarding the home to the parent with primary custody to provide stability.
- Contributions to the home: Financial and non-financial contributions (such as home maintenance or renovations) may influence the division.
- Any existing agreements: If the couple has a prenuptial or postnuptial agreement addressing homeownership, the court may enforce those terms.
- Debt and mortgage responsibilities: If the mortgage is in both names, the court must consider how it will be refinanced or paid off.
These factors allow the court to determine a fair approach to handling the marital home during divorce proceedings.
Options for Dividing the Home in a Colorado Divorce
Depending on the situation, divorcing couples in Colorado have several options for handling the marital home:
1. One Spouse Buys Out the Other
If one spouse wants to keep the house and has the financial ability, they may buy out the other spouse’s share. This often involves refinancing the mortgage in one spouse’s name and paying the other their equitable share.
2. Selling the Home and Splitting the Proceeds
For many couples, selling the home and dividing the proceeds is the simplest solution. If neither spouse can afford to keep the house alone, selling ensures both parties can move forward with their financial independence.
3. Co-ownership for a Set Period
In some cases, couples may temporarily co-own the home after the divorce. This arrangement is typical when one spouse (often the custodial parent) stays in the house until the children reach a certain age. After that period, the home is sold, and the proceeds are divided.
4. Trading Assets
Instead of selling the home, one spouse may trade other assets for sole ownership. For example, one spouse may take the house while the other receives a larger share of retirement accounts or other assets.
Each of these options has legal and financial implications, so it is essential to consult with a divorce lawyer before making a decision.
What Happens to the Mortgage in a Divorce?
The mortgage on a home presents additional challenges. If both spouses are on the mortgage, they remain jointly responsible for payments unless the mortgage is refinanced in one person’s name.
- Refinancing: If one spouse is awarded the home, they typically must refinance the mortgage to remove the other spouse’s liability.
- Selling the Home: If the home is sold, the mortgage is paid off with the proceeds, and any remaining balance is divided according to the divorce settlement.
- Continued Joint Ownership: In rare cases, spouses may agree to continue paying the mortgage together for a specific period, such as until their children graduate from high school.
Properly addressing the mortgage can lead to credit issues for both spouses, so it is crucial to work with legal and financial professionals to ensure a smooth transition.
Can a Court Force a Spouse to Leave the Home?
During a divorce, both spouses can remain in the marital home unless the court issues a temporary order requiring one spouse to move out. This typically happens in cases involving domestic violence or other extenuating circumstances.
If necessary, a spouse may request a temporary exclusive use order, granting them the sole right to live in the home while the divorce is pending. This order does not determine permanent ownership, but it can provide temporary relief during the process.
Protecting Your Rights in a Colorado Divorce
Deciding who gets the house in a Colorado divorce is a significant decision with long-term financial and personal consequences. Understanding your rights and options is essential whether you are negotiating with your spouse or preparing for litigation.
Working with an experienced divorce lawyer can help you navigate property division, protect your financial interests, and reach a resolution that works for your unique situation.
Contact a Colorado Divorce Lawyer
If you are facing a divorce in Colorado and need guidance on property division, Baker Law Group can help. Our experienced divorce attorneys understand the complexities of Colorado’s equitable distribution laws and can advocate for your best interests.
Call us today to schedule a consultation and discuss your options for protecting your home and financial future.
