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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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According to Colorado divorce law, if my husband inherited

Customer Question

According to Colorado divorce law, if my husband inherited some money and then put it in a Schwab account, and then a few months later added marital assets to this account, does all of the money then become marital assets?

On the other hand, if he adds inherited assets to a marital asset account, does all of this account then become marital assets?
Submitted: 4 years ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 4 years ago.
Thank you for your question.

If your husband has a separate account, not all of the money in that account become "marital property". Unlike California, Colorado is an "equitable distribution" state, meaning all assets are split "equitably" but not necessarily equally during a divorce. If, for example, your husband has an account of inherited funds of $50,000, that money remains his. If he adds $10,000 of marital funds to the account, you retain the rights to the $10,000 AND any interest earned on the full balance, but you do not receive any interest in the original amount.

If, on the other hand, he does put money into a joint account, and does it with the intention of adding it to the family, then the money (the $50,000) can conceivably be argued that it became a marital asset.

Hope that helps.

Edited by Dimitry Alexander Kaplun on 1/24/2010 at 9:18 PM EST
Customer: replied 4 years ago.
You are not a divorce attorney. I would feel better if these questions were answered by a divorce attorney.
Expert:  Dimitry K., Esq. replied 4 years ago.
I apologize if you are not satisfied--I will open this question to other Experts. Please be advised that I am a family law Expert on this site. To better assist you, I will request that other Experts review my answer. If they agree with me, they will comment by either posting additional information, or by sending you a message that shows that they agreed with my assessment. If they do not agree, they can amend my answer and provide you with new information.

Would that suffice?

Sincerely,

Dimitry Alexander Kaplun, Esq.
Customer: replied 4 years ago.
Yes.
Expert:  Dimitry K., Esq. replied 4 years ago.


I have sent requests to all Experts. So far 1 has reviewed and agreed (you should have gotten an email to that effect). I will keep the question open for additional follow-ups.

Sincerely,

Dimitry Alexander Kaplun, Esq.
Expert:  Ely replied 4 years ago.
Hello,My name is XXXXX XXXXX X am a family law attorney. My colleague Alex asked me to step in to weigh in on your question.First off, understand that property division is essentially universal in divorces in all 50 states, barring Louisiana and Native American tribal entities.Now, let's get to the meat of your question. "if my husband inherited some money and then put it in a Schwab account, and then a few months later added marital assets to this account, does all of the money then become marital assets? On the other hand, if he adds inherited assets to a marital asset account, does all of this account then become marital assets?"Believe it or not, there is a special doctrine in place just for your type of situation - it's called comingling. Now to understand the reasoning, first you have to know the difference between community property and separate property. Now I know you probably already know this, but just bear with me, ok:Separate property and debt is property that is generally:


1. Owned before marriage by one spouse; or

2. Acquired by gift or will or similar legal way by spouse during marriage; or

3. Declared as such by prenup or postup; or

4. Traceable property purchased by one spouse only; or

5. Tort Recovery for personal injury, but not medical expenses or loss of earning capacity.



Separate property and debt is awarded to the party which had claim to it in accordance with the rules above.



Community Property and debt is everything else, including but not limited to:


1. Income from BOTH parties; or

2. Declared as such by prenup and postup; or

3. Gift from one spouse to another; or

4; All titled and non-titled property gathered during marriage.
<br
So now we know, that if he INHERITED money, it's his separate property. Now whether he put the the inherited money into a joint account (community property) or instead put some community property funds into an account which held inheritance money, it does not matter since they both have the same effect under the law: COMINGLING.Comingling happens when a spouse accidentally or intentionally mixes separate property and community property together, as he would have done here. Then the WHOLE account becomes COMMUNITY, which means you're allowed 1/2 of it. He CAN petition the Court to recognize a split, and ask for his amount of separate funds to be given to him only, but the burden is on him BY CLEAR AND CONVINCING EVIDENCE to show that he put separate property into the account. This means he's have to show the inheritance amount, and the paperwork from that money trail to the bank account, and that he submitted the same exact amount into that account. IF he can show that BY CLEAR AND CONVINCING EVIDENCE, he can take out his inheritance and split the rest (marital). If he can't, ALL will be split in half.He would have to do this by a MOTION TO ESTABLISH SEPARATE PROPERTY or MOTION FOR CLARIFICATION if this is in regards XXXXX XXXXX orders in place before the hearing on the merits, or if this will be heard at trial, he'd have to present evidence then and there. Remember, he has to prove this by CLEAR and CONVINCING EVIDENCE, not just the regular "preponderance of the evidence" litmus test usually used in family law cases.

Also, if this is AFTER trial, he'd have to do a post-Judgment MOTION FOR MODIFICATION, but virtually no Judge will listen to him here, since he didn't bring it at trial, and would likely dismiss it for "judicial economy" by its own motion.Best of luck in your matter. I'm here if you need any more clarification or follow up info.



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Edited by Eli on 1/25/2010 at 7:33 PM EST
Customer: replied 4 years ago.
You are talking about community property, but Colorado is not a community property state.
Expert:  Ely replied 4 years ago.
Ma'am,Colorado is a "mix" state - in most Colorado property settlements, the concepts of marital property, separate property, and marital gain, look, feel, and result in distributions very much like community property concepts. But Colorado is not a community property state.In a Colorado divorce is very simple: Marital property, that is property acquired during a marriage, is split evenly. Separate property, that is property owned before the marriage, or property acquired during the marriage by gift or inheritance, is the separate property of that spouse. If co-mingling applies, it is settled very much like it is in a community state.By analogy, I'd say it was like a slave state during the civil war which never left the Union. It kinda sits on the border, doing its own thing. I guarantee that if you go to an attorney and pay $150 for a consultation, he/she would tell you the very same thing. :)
Ely, Counselor at Law
Category: Legal
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Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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