Colorado: What is Separate Property in Divorce?


Colorado is a state that follows the marital property system, which is often referred to as “equitable distribution.” Under this system, any property acquired by either spouse during the course of the marriage is generally considered marital property. On the other hand, separate property refers to assets acquired before the marriage. This article aims to provide a comprehensive understanding of Colorado’s marital property laws, including exceptions, prenuptial and postnuptial agreements, and the division of assets during divorce.

Understanding Marital and Separate Property

  1. Marital Property: Marital property encompasses assets acquired by either spouse during the marriage. This includes real estate, vehicles, income, investments, and any other form of property acquired during the marital union.
  2. Separate Property: Separate property, on the other hand, includes assets acquired before the marriage began. Any property owned by a spouse before tying the knot is generally considered separate property and is not subject to division during divorce proceedings.

Exceptions to Property Rules

  1. Inheritances and Gifts: Inheritances and gifts acquired during the marriage are usually exempt from being classified as marital property. However, gifts between spouses may be considered either marital or separate property, depending on the circumstances.
  2. Use and Transformation of Separate Property: Unless explicitly intended otherwise, separate property that is used for purchases, exchanged, or transformed into different property remains separate. For example, if cash from stocks owned before the marriage is used to purchase other stocks during the marriage, the new stocks will still be considered separate property.

Determining Property Division during Divorce

  1. Treatment of a Home: Suppose a home was purchased as separate property before marriage, but during the marriage, mortgage payments were made using marital funds, or the property’s value increased. In that case, the value of the payments and the increase in value would be subject to division during a divorce. To determine the portion of the home’s value eligible for division, the value of the home at the time of marriage is required.
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The Role of Prenuptial and Postnuptial Agreements

  1. Understanding Prenuptial Agreements: A prenuptial agreement (prenup) is a legal contract signed before marriage that outlines the nature of property during the marriage and how it will be divided in case of divorce. Prenups can offer protection to separate property and help avoid lengthy legal battles during divorce proceedings.
  2. Postnuptial Agreements Explained: Postnuptial agreements (postnups) are similar to prenups but are entered into after the marriage has already taken place. These agreements can be used to modify the classification of property and provide a clear plan for asset division if the couple decides to divorce.

Seek Legal Advice

  1. Complex Nature of Prenups and Postnups: Both prenuptial and postnuptial agreements are legally binding contracts that require careful consideration and drafting. Consulting a qualified family lawyer is essential to ensure that your rights and interests are protected adequately.


Understanding Colorado’s marital property laws is crucial for couples to make informed decisions about their assets and financial future. Whether you are considering marriage, facing divorce, or just want to protect your assets, it is essential to know how the equitable distribution system works. Prenuptial and postnuptial agreements can play a significant role in safeguarding separate property and simplifying the division of assets during divorce.


  1. What is the difference between marital property and separate property in Colorado?Marital property includes assets acquired during the marriage, while separate property refers to assets owned before the marriage.
  2. Are gifts between spouses considered marital property?Gifts between spouses can be classified as either marital or separate property, depending on the circumstances.
  3. Can the value of a home purchased as separate property change during marriage?Yes, if marital funds are used to pay the mortgage or if the property’s value increases during the marriage, the value subject to division can change.
  4. What is the role of prenuptial agreements in Colorado?Prenuptial agreements serve to predetermine property classification and asset division in the event of divorce.
  5. Do I need a lawyer to create a prenuptial agreement?While not legally required, it is highly advisable to consult a family lawyer to ensure the agreement’s validity and fairness.
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