Colorado
JURISDICTIONAL END OF MARRIAGE DATE: Date of Dissolution-preferred. If there is no Dissolution Date use current date.
STATE TYPE FOR PENSION DISTRIBUTION: Colorado is an "equitable distribution" state. Colorado is an equitable distribution state, which means that the court will set aside to each spouse that spouse's separate property and divide the marital property between the parties as the court deems equitable and just, after considering all relevant factors, such as:
1. The contribution of each spouse to the acquisition of the marital property; 2. The value of the property set aside to each spouse; 3. The economic circumstances of each spouse at the time of the property distribution, and; 4. Any increase or decrease in the value of the separate property of the spouses during the marriage or the depletion of the separate property for marital purposes.
[Colorado Revised Statutes; Article 10, Section 14-10-113].
COLO. REV. STAT. 14-10-112.
Separation agreement.
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(3) If the court finds the separation agreement unconscionable, thecourt may request the parties to submit a revised separation agreement,or the court may make orders for the disposition of property, support,and maintenance.
(4) If the court finds that the separation agreement is notunconscionable as to support, maintenance, and property:
(a) Unless the separation agreement provides to the contrary, its termsshall be set forth in the decree of dissolution or legal separation, andthe parties shall be ordered to perform them; or
(b) If the separation agreement provides that its terms shall not beset forth in the decree, the decree shall identify the separationagreement and shall state that the court has found the terms notunconscionable.
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COLO. REV. STAT ' 14-10-113.
Disposition of property.
(1) In a proceeding for dissolution of marriage or in a proceeding forlegal separation or in a proceeding for disposition of property followingthe previousPage APP-24dissolution of marriage by a court which at the time of the priordissolution of the marriage lacked personal jurisdiction over the absentspouse or lacked jurisdiction to dispose of the property, the court,subject to the provisions of subsection (7) of this section, shall setapart to each spouse his or her property and shall divide the maritalproperty, without regard to marital misconduct, in such proportions as thecourt deems just after considering all relevant factors including:
(a) The contribution of each spouse to the acquisition of the maritalproperty, including the contribution of a spouse as homemaker;
(b) The value of the property set apart to each spouse;
(c) The economic circumstances of each spouse at the time the divisionof property is to become effective, including the desirability ofawarding the family home or the right to live therein for reasonableperiods to the spouse with whom any children reside the majority of thetime; and
(d) Any increases or decreases in the value of the separate property ofthe spouse during the marriage or the depletion of the separate propertyfor marital purposes.
(2) For purposes of this article only, and subject to the provisions ofsubsection (7) of this section, "marital property" means all propertyacquired by either spouse subsequent to the marriage except:
(a) Property acquired by gift, bequest, devise, or descent;
(b) Property acquired in exchange for property acquired prior to themarriage or in exchange for property acquired by gift, bequest, devise,or descent;
(c) Property acquired by a spouse after a decree of legal separation;and
(d) Property excluded by valid agreement of the parties.
(3) Subject to the provisions of subsection (7) of this section, allproperty acquired by either spouse subsequent to the marriage and prior toa decree of legal separation is presumed to be marital property,regardless of whether title is held individually or by the spouses insome form of coownership such as joint tenancy, tenancy in common,tenancy by the entirety, and community property. The presumption ofmarital property described in this subsection (3) is overcome by ashowing that the property was acquired by a method listed in subsection(2) of this section.
(4) Subject to the provisions of subsection (7) of this section, anasset of a spouse acquired prior to the marriage or in accordance withsubsection (2)(a) or (2)(b) of this section shall be considered asmarital property, for purposes of this article only, to the extent thatits present value exceeds its value at the time of the marriage or at thetime of acquisition if acquired after the marriage.Page APP-25
(5) For purposes of this section only, property shall be valued as ofthe date of the decree or as of the date of the hearing on disposition ofproperty if such hearing precedes the date of the decree.
(6)
(a)(I) Notwithstanding any anti-assignment, anti-alienation, orother provision of law to the contrary, all retirement benefits of anynature for public employees from a plan described in section 414(p) ofthe federal "Internal Revenue Code of 1986", as amended, that isestablished pursuant to Colorado law shall be, in all actions fordissolution of marriage, legal separation, and declaration of invalidityof marriage, divisible directly by the plan upon written agreement of theparties to such an action pursuant to paragraph (c) of this subsection(6).
(II) The provisions of this subsection (6) shall apply to alldissolution of marriage, legal separation, and declaration of invalidityof marriage actions filed on or after January 1, 1997, and alldissolution of marriage, legal separation, or declaration of invalidityof marriage actions filed prior to January 1, 1997, in which the courtdid not enter a final property division order concerning the parties'public employee retirement benefits prior to January 1, 1997.
(b) As used in this subsection (6), unless the context otherwiserequires:
(I) "Alternate payee" means a party to a dissolution of marriage, legalseparation, or declaration of invalidity action who is not theparticipant of the public employee retirement plan divided or to bedivided but who is married to or was married to the participant and whois to receive, is receiving, or has received all or a portion of theparticipant's retirement benefit by means of a written agreement asdescribed in paragraph (c) of this subsection (6).
(II) "Defined benefit plan" means a retirement plan that is not adefined contribution plan and that usually provides benefits as apercentage of the participant's highest average salary, based on theplan's benefit formula and the participant's age and service credit at thetime of retirement.
(III) "Defined contribution plan" means a retirement plan that providesfor an individual retirement account for each participant and thebenefits of which are based solely on the amount contributed to theparticipant's account and that includes any income, expenses, gains,losses, or forfeitures of accounts of other participants that may beallocated to the participant's account.
(IV) "Participant" means the person who is an active, inactive, orretired member of the public employee retirement plan.
(c)(I) The parties may enter into a marital agreement pursuant to part3 of article 2 of this title or a separation agreement pursuant tosection 14-10-112 concerning the division of a public employee retirementbenefit between the parties pursuant to a written agreement. The partiesshall submit such written agreement to the plan administrator withinninety days after entry of the decree and thePage APP-26permanent orders regarding property distribution in a proceeding fordissolution of marriage, legal separation, or declaration of invalidityof marriage.
(II) A written agreement dividing a public employee retirement benefitshall:
(A) Specify the full legal name of the retirement plan or plans towhich it applies;
(B) Specify the name, social security number, and last-known mailingaddress of the participant and the alternate payee as well as thealternate payee's relationship to the participant;
(C) For an agreement concerning a defined benefit plan, specify thedistribution method, as described in subparagraph (III) of this paragraph(c), subject, if the plan permits, to benefit adjustments payable at thesame time and in the same manner as any benefit adjustments applied tothe participant's distribution.
(D) For an agreement concerning a defined contribution plan, specifythe alternate payee's portion of the participant's account as a fixedlump-sum amount, or as a percentage, in either case, as of a specifieddate, from specific accounts of the participant and, unless the planadopts rules and regulations pursuant to paragraph (d) of this subsection(6) permitting the plan to retain the alternate payee's portion of theparticipant's account, require that distribution to the alternate payee bemade within one hundred twenty days after a certified court orderapproving the agreement has been submitted to and received by the plan;
(E) Not provide for payments to the alternate payee or to theparticipant for which he or she would not otherwise be eligible if therewere no dissolution of marriage, legal separation, or declaration ofinvalidity action pending;
(F) For an agreement concerning a defined benefit plan, not require theplan to pay the alternate payee prior to the date payments commence to theparticipant or prior to the participant attaining age sixty-five or actualretirement date, whichever date is earlier, or at such later date as theparties may otherwise agree in writing;
(G) For an agreement concerning a defined benefit plan, provide thatthe alternate payee's rights to payments terminate upon the involuntarytermination of benefits payable to the participant or upon the death ofthe alternate payee, whichever occurs first, unless the parties agree toelect, or have already elected, a benefit option under the plan thatprovides for a cobeneficiary benefit to the alternate payee;
(H) Provide that the manner of payment shall be in a form or typepermissible under the plan. The agreement shall not require through thissubsection (6) the payment of a benefit, benefit amount, or distributionoption not otherwise set out in the plan document or statute.Page APP-27
(I) Not require the plan to pay benefits that are already required tobe paid to another alternate payee or are already subject to anassignment or lien;
(J) Specify that it shall apply to successor plans;
(K) Comply with any rules or procedures promulgated pursuant to paragraph(d) of this subsection (6); and
(L) Specify that, once approved by the court, the order approving theagreement shall be certified by the clerk of the court and submitted toand received by the retirement plan at least thirty days before the planmay make its first payment.
(III) The written agreement between the parties described insubparagraph (II) of this paragraph (c) shall contain only one method orformula to be applied to divide the defined benefit plan. For purposes ofsub-subparagraph (C) of subparagraph (II) of this paragraph (c), theparties may select any one of the following methods by which to divide thedefined benefit plan:
(A) A fixed monetary amount;
(B) A fixed percentage of the payment to the participant;
(C) The time-rule formula determined by dividing the number of monthsof service credit acquired under the plan during the marriage as setforth in the court's order by the number of months of service credit insuch plan at the time of the participant's retirement as determined bythe plan, which quotient shall be multiplied by a percentage specified inthe court's order, and the product thereof shall be further multiplied bythe amount of the payment to the participant at the date of retirement;
(D) A formula determined by dividing the number of months of servicecredit acquired under the plan during the marriage as set forth in thecourt's order by the number of months of service credit in such plan asof the date of the decree as determined by the plan, regardless of whenthe participant is expected to retire, which quotient shall be multipliedby a percentage specified in the court's order, and the product thereofshall be further multiplied by the amount of the payment the participantwould be entitled to receive as if the participant were to retire andreceive an unreduced benefit on the date of the decree; or
(E) Any other method or formula mutually agreed upon by the parties thatspecifies a dollar amount or percentage payable to the alternate payee.
(d) The trustees or the administrator of each retirement plan maypromulgate rules or procedures governing the implementation of thissubsection (6) with respect to public employee retirement plans that theyadminister. Such rules or procedures may include the requirement that astandardized form be used by the parties and the court for an orderapproving the parties' agreement to be effective as well as otherprovisions consistent with the purpose of this subsection (6).Page APP-28
(e) Compliance with the provisions of this subsection (6) by a publicemployee retirement plan shall not subject the plan to any portions ofthe federal "Employee Retirement Income Security Act of 1974", asamended, that do not otherwise affect governmental plans generally. Anyplan that reasonably complies with an order approving an agreement enteredinto pursuant to this subsection (6) shall be relieved of liability forpayments made to the parties subject to such order.
(f) A court shall have no jurisdiction to enter an order dividing apublic employee retirement benefit except upon written agreement of theparties pursuant to this subsection (6). A court shall have nojurisdiction to modify an order approving a written agreement of theparties dividing a public employee retirement benefit unless the parties have agreed in writing to the modification. A court may retainjurisdiction to supervise the implementation of the order dividing theretirement benefits.
(7)
(a) For purposes of subsections (1) to (4) of this section only,except with respect to gifts of nonbusiness tangible personal property,gifts from one spouse to another, whether in trust or not, shall bepresumed to be marital property and not separate property. Thispresumption may be rebutted by clear and convincing evidence.
(b) For purposes of subsections (1) to (4) of this section only,"property" and "an asset of a spouse" shall not include any interest aparty may have as an heir at law of a living person or any interest underany donative third party instrument which is amendable or revocable,including but not limited to third-party wills, revocable trusts, lifeinsurance, and retirement benefit instruments, nor shall any suchinterests be considered as an economic circumstance or other factor.
(c)(I) The provisions of this subsection (7) shall apply to all causesof action filed on or after July 1, 2002. The provisions of thissubsection (7) shall also apply to all causes of action filed before saiddate in which a final property disposition order concerning mattersaffected by this subsection (7) was not entered prior to July 1, 2002.
(II) For purposes of this paragraph (c), "final property dispositionorder" means a property disposition order for which the time to appealhas expired or for which all pending appeals have been finallyconcluded.
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