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14-10-113. Disposition of property.

Statute text

(1) In a proceeding for dissolution of marriage or in a proceeding for legal separation or in a proceeding for disposition of property following the previous dissolution of marriage by a court which at the time of the prior dissolution of the marriage lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court, subject to the provisions of subsection (7) of this section, shall set apart to each spouse his or her property and shall divide the marital property, without regard to marital misconduct, in such proportions as the court deems just after considering all relevant factors including:

(a) The contribution of each spouse to the acquisition of the marital property, 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 division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time; and

(d) Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.

(2) For purposes of this article only, and subject to the provisions of subsection (7) of this section, "marital property" means all property acquired 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 the marriage 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, all property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property described in this subsection (3) is overcome by a showing 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, an asset of a spouse acquired prior to the marriage or in accordance with subsection (2) (a) or (2) (b) of this section shall be considered as marital property, for purposes of this article only, to the extent that its present value exceeds its value at the time of the marriage or at the time of acquisition if acquired after the marriage.

(5) For purposes of this section only, property shall be valued as of the date of the decree or as of the date of the hearing on disposition of property if such hearing precedes the date of the decree.

(6) (a) (I) Notwithstanding any anti-assignment, anti-alienation, or other provision of law to the contrary, all retirement benefits of any nature for public employees from a plan described in section 401 (a), 403 (b), 414 (d), or 457 of the federal "Internal Revenue Code of 1986", as amended, that is established pursuant to Colorado law shall be, in all actions for dissolution of marriage, legal separation, and declaration of invalidity of marriage, divisible directly by the plan upon written agreement of the parties to such an action pursuant to paragraph (c) of this subsection (6).

(II) The provisions of this subsection (6) shall apply to all dissolution of marriage, legal separation, and declaration of invalidity of marriage actions filed on or after January 1, 1997, and all dissolution of marriage, legal separation, or declaration of invalidity of marriage actions filed prior to January 1, 1997, in which the court did 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 otherwise requires:

(I) "Alternate payee" means a party to a dissolution of marriage, legal separation, or declaration of invalidity action who is not the participant of the public employee retirement plan divided or to be divided but who is married to or was married to the participant and who is to receive, is receiving, or has received all or a portion of the participant's retirement benefit by means of a written agreement as described in paragraph (c) of this subsection (6).

(II) "Defined benefit plan" means a retirement plan that is not a defined contribution plan and that usually provides benefits as a percentage of the participant's highest average salary, based on the plan's benefit formula and the participant's age and service credit at the time of retirement.

(III) "Defined contribution plan" means a retirement plan that provides for an individual retirement account for each participant and the benefits of which are based solely on the amount contributed to the participant's account and that includes any income, expenses, gains, losses, or forfeitures of accounts of other participants that may be allocated to the participant's account.

(IV) "Participant" means the person who is an active, inactive, or retired member of the public employee retirement plan.

(c) (I) The parties may enter into a marital agreement pursuant to part 3 of article 2 of this title or a separation agreement pursuant to section 14-10-112 concerning the division of a public employee retirement benefit between the parties pursuant to a written agreement. The parties shall submit such written agreement to the plan administrator within ninety days after entry of the decree and the permanent orders regarding property distribution in a proceeding for dissolution of marriage, legal separation, or declaration of invalidity of marriage.

(II) A written agreement dividing a public employee retirement benefit shall:

(A) Specify the full legal name of the retirement plan or plans to which it applies;

(B) Specify the name, social security number, and last-known mailing address of the participant and the alternate payee as well as the alternate payee's relationship to the participant;

(C) For an agreement concerning a defined benefit plan, specify the distribution method, as described in subparagraph (III) of this paragraph (c), subject, if the plan permits, to benefit adjustments payable at the same time and in the same manner as any benefit adjustments applied to the participant's distribution;

(D) For an agreement concerning a defined contribution plan, specify the alternate payee's portion of the participant's account as a fixed lump-sum amount, or as a percentage, in either case, as of a specified date, from specific accounts of the participant and, unless the plan adopts rules and regulations pursuant to paragraph (d) of this subsection (6) permitting the plan to retain the alternate payee's portion of the participant's account, require that distribution to the alternate payee be made within one hundred twenty days after a certified court order approving the agreement has been submitted to and received by the plan;

(E) Not provide for payments to the alternate payee or to the participant for which he or she would not otherwise be eligible if there were no dissolution of marriage, legal separation, or declaration of invalidity action pending;

(F) For an agreement concerning a defined benefit plan, not require the plan to pay the alternate payee prior to the date payments commence to the participant or prior to the participant attaining age sixty-five or actual retirement date, whichever date is earlier, or at such later date as the parties may otherwise agree in writing;

(G) For an agreement concerning a defined benefit plan, provide that the alternate payee's rights to payments terminate upon the involuntary termination of benefits payable to the participant or upon the death of the alternate payee, whichever occurs first, unless the parties agree to elect, or have already elected, a benefit option under the plan that provides for a cobeneficiary benefit to the alternate payee;

(H) Provide that the manner of payment shall be in a form or type permissible under the plan. The agreement shall not require through this subsection (6) the payment of a benefit, benefit amount, or distribution option not otherwise set out in the plan document or statute.

(I) Not require the plan to pay benefits that are already required to be paid to another alternate payee or are already subject to an assignment 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 the agreement shall be certified by the clerk of the court and submitted to and received by the retirement plan at least thirty days before the plan may make its first payment.

(III) The written agreement between the parties described in subparagraph (II) of this paragraph (c) shall contain only one method or formula to be applied to divide the defined benefit plan. For purposes of sub-subparagraph (C) of subparagraph (II) of this paragraph (c), the parties may select any one of the following methods by which to divide the defined 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 months of service credit acquired under the plan during the marriage as set forth in the court's order by the number of months of service credit in such plan at the time of the participant's retirement as determined by the plan, which quotient shall be multiplied by a percentage specified in the court's order, and the product thereof shall be further multiplied by the amount of the payment to the participant at the date of retirement;

(D) A formula determined by dividing the number of months of service credit acquired under the plan during the marriage as set forth in the court's order by the number of months of service credit in such plan as of the date of the decree as determined by the plan, regardless of when the participant is expected to retire, which quotient shall be multiplied by a percentage specified in the court's order, and the product thereof shall be further multiplied by the amount of the payment the participant would be entitled to receive as if the participant were to retire and receive an unreduced benefit on the date of the decree; or

(E) Any other method or formula mutually agreed upon by the parties that specifies a dollar amount or percentage payable to the alternate payee.

(d) The trustees or the administrator of each retirement plan may promulgate rules or procedures governing the implementation of this subsection (6) with respect to public employee retirement plans that they administer. Such rules or procedures may include the requirement that a standardized form be used by the parties and the court for an order approving the parties' agreement to be effective as well as other provisions consistent with the purpose of this subsection (6).

(e) Compliance with the provisions of this subsection (6) by a public employee retirement plan shall not subject the plan to any portions of the federal "Employee Retirement Income Security Act of 1974", as amended, that do not otherwise affect governmental plans generally. Any plan that reasonably complies with an order approving an agreement entered into pursuant to this subsection (6) shall be relieved of liability for payments made to the parties subject to such order.

(f) A court shall have no jurisdiction to enter an order dividing a public employee retirement benefit except upon written agreement of the parties pursuant to this subsection (6). A court shall have no jurisdiction to modify an order approving a written agreement of the parties dividing a public employee retirement benefit unless the parties have agreed in writing to the modification. A court may retain jurisdiction to supervise the implementation of the order dividing the retirement 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 be presumed to be marital property and not separate property. This presumption 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 a party may have as an heir at law of a living person or any interest under any donative third party instrument which is amendable or revocable, including but not limited to third-party wills, revocable trusts, life insurance, and retirement benefit instruments, nor shall any such interests be considered as an economic circumstance or other factor.

(c) (I) The provisions of this subsection (7) shall apply to all causes of action filed on or after July 1, 2002. The provisions of this subsection (7) shall also apply to all causes of action filed before said date in which a final property disposition order concerning matters affected by this subsection (7) was not entered prior to July 1, 2002.

(II) For purposes of this paragraph (c), "final property disposition order" means a property disposition order for which the time to appeal has expired or for which all pending appeals have been finally concluded.

History

Source: L. 71: R&RE, p. 525, 1. C.R.S. 1963: 46-1-13. L. 73: pp. 553, 555, 6, 7, 12. L. 75: IP(1) amended, p. 210, 25, effective July 16. L. 96: (6) added, p. 1457, 1, effective January 1, 1997. L. 97: (6)(a) amended, p. 100, 1, effective March 24. L. 98: (6)(c)(I) and (6)(c)(II)(C) amended and (6)(c)(III) added, p. 355, 1, effective August 5; (1)(c) amended, p. 1397, 40, effective February 1, 1999. L. 99: (6)(c)(I), (6)(c)(II)(L), and (6)(f) amended, p. 46, 1, effective March 15. L. 2002: (6)(a)(I) amended, p. 138, 1, effective March 27; IP(1), IP(2), (3), and (4) amended and (7) added, p. 1054, 1, effective June 1. L. 2004: (6)(a)(I) amended, p. 222, 5, effective April 1.

Annotations

Cross references: For the federal "Employee Retirement Income Security Act of 1974", see 29 U.S.C. sec. 1001 et seq.

Annotations

 

ANNOTATION

Annotations

 

Analysis

 

I. General Consideration.
II. Division of Property.
A. In General.
B. Definition of Property.
C. Discretion of Court.
D. Antenuptial Agreements.
E. Separate Property.
F. Marital Property.
G. After-acquired Property.
III. Valuation of Property.
IV. Scope of Review.
V. Enforcement.

I. GENERAL CONSIDERATION.

Law reviews. For note, "Effects of Reconciliation on Separation Agreements in Colorado", see 51 U. Colo. L. Rev. 399 (1980). For article, "The Economy: Its Effects on Family Law", see 11 Colo. Law. 97 (1982). For article, "Pre-Nuptial Agreements Revisited", see 11 Colo. Law. 1882 (1982). For article, "Marital Property", see 13 Colo. Law. 1209 (1984). For article, "Taxation", which discusses a Tenth Circuit decision dealing with periodic payments as alimony or property settlement, see 61 Den. L.J. 392 (1984). For article, "Domestic Case Update", see 14 Colo. Law. 209 (1985). For article, "Division of Pension Benefits in Divorce Proceedings", see 14 Colo. Law. 378 (1985). For article, "Cohabitation Agreements in Colorado", see 15 Colo. Law. 979 (1986). For article, "Common Law Marriage in Colorado", see 16 Colo. Law. 252 (1987). For article, "Division of Civil Service Retirement Benefits in Divorce", see 17 Colo. Law. 643 (1988). For article, "Standards for Tracing Marital Property Back to Non-Marital Property", see 17 Colo. Law. 853 (1988). For article, "Determining Benefits for Former Spouses of Military Personnel", see 19 Colo. Law. 1073 (1990). For article, "Classifying Income, Rents, and Profits from Separate Property", see 24 Colo. Law. 1303 (1994). For article, "Marital or Separate Property: An Overview for Practitioners", see 24 Colo. Law. 571 (1995). For article, "Employee Stock Options and Restricted Shares: Determining and Dividing the Marital Property", see 25 Colo. 87 (October 1996). For article, "Valuing Business Goodwill in a Divorce", see 26 Colo. Law. 53 (April 1997). For article, "Establishing Separate Property Through Asset Tracing After Burford", see 28 Colo. Law. 55 (January 1999). For article, "How Income Taxes Affect Property Settlements", see 29 Colo. Law. 55 (January 2000). For article, "Divorce Considerations Relevant to an Estate Planning Practice", see 29 Colo. Law. 53 (February 2000). For article, "Retirement Benefits in Divorce: Mixing, Matching, and Offsetting", see 29 Colo. Law. 67 (June 2000). For article, "Balanson: Drafting Trust to Deflect the Spousal Creditor", see 30 Colo. Law. 131 (October 2001). For article, "Planning for Community Property in Colorado", see 31 Colo. Law. 79 (June 2002). For article, "Complex Financial Issues in Family Law Cases", see 37 Colo. Law. 53 (October 2008). For article, "Determining When Trusts are Property for the Purpose of Equitable Division", see 39 Colo. Law. 39 (June 2010).

Annotator's note. Since 14-10-113 is similar to repealed 46-1-5(2), C.R.S. 1963, 46-1-5, CRS 53, CSA, C. 56, 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Subsection (7)(b) is not unconstitutionally retrospective. In re Balanson, 107 P.3d 1037 (Colo. App. 2004).

Uniform Dissolution of Marriage Act provides separate sections that govern the different elements of a dissolution order, specifically property disposition, maintenance, child support, and attorney fees. The court is required to make separate orders regarding these elements based on separate considerations, and may not commingle one element with another. In re Huff, 834 P.2d 244 (Colo. 1992).

There is a distinction between maintenance awards and property settlements. Property divisions are intended to accomplish a just apportionment of marital property over time, whereas maintenance is intended be a substitute for marital support that can be used, for example, to ease a spouse's transition into the work force and prevent the spouse from becoming dependent on public assistance. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).

Division of property is mandatory under this section, whereas an award of maintenance is discretionary under 14-10-114. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).

This statute is a legislative recognition of preexisting Colorado law. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975).

Awarding of attorney fees is discretionary with trial court and will not be disturbed on review if supported by the evidence. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd in part on other grounds, 653 P.2d 728 (Colo. 1982); In re Kiefer, 738 P.2d 54 (Colo. App. 1987).

Equitable lien created by decree of dissolution. Where wife was ordered to quitclaim her undivided one-third interest in the family home to husband and his mother in exchange for a promissory note representing the value of such interest, an equitable lien to prevent unjust enrichment was imposed on the property because repayment of the note was conditioned in part on events involving disposition of the property. Leyden v. Citicorp Indus. Bank, 782 P.2d 6 (Colo. 1989).

The needs of the children are of paramount importance; therefore, statutory provisions may not be modified by agreement if to do so would affect the rights of the child whom the statute is designed to protect. In re Miller, 790 P.2d 890 (Colo. App. 1990).

Attorney fees are not a non-challengeable marital debt under this section. In re Rieger, 827 P.2d 625 (Colo. App. 1992).

Partition of marital property pursuant to 38-28-101 after the entry of the final dissolution decree is permissible, but the partition order must not conflict with explicit provisions of the decree. Wilson v. Prentiss, 140 P.3d 288 (Colo. App. 2006).

Applied in In re Mitchell, 195 Colo. 399, 579 P.2d 613 (1978); Mayer v. District Court, 198 Colo. 199, 597 P.2d 577 (1979); In re Engelman, 43 Colo. App. 531, 605 P.2d 490 (1979); In re Hartford, 44 Colo. App. 303, 612 P.2d 1163 (1980); In re Carney, 631 P.2d 1173 (Colo. 1981); In re Stewart, 632 P.2d 287 (Colo. App. 1981); In re Everhart, 636 P.2d 1321 (Colo. App. 1981); In re Manzo, 659 P.2d 669 (Colo. 1983).

II. DIVISION OF PROPERTY.

A. In General.

Law reviews. For article, "Property or Expectancy: The Division of Trust Assets at Dissolution of Marriage", see 30 Colo. Law. 63 (February 2001). For article, "The Continuing Evolution of Balanson: Trusts as Property in Divorce", see 34 Colo. Law. 79 (June 2005). For article, "Divorce in the Land of Startups", see 43 Colo. Law. 47 (December 2014).

This statute makes property division mandatory. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975); In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).

Where the trial court has the necessary jurisdiction, over not only the subject matter but the persons as well, it is required to divide the marital property in accordance with this section. In re Quay, 647 P.2d 693 (Colo. App. 1982).

Language of subsection (1)(c) is not mandatory. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980).

Colorado is not a community property state. In re Ellis, 36 Colo. App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317, 552 P.2d 506 (1976).

The statutory mandate to distribute property equitably does not require equality. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980); In re Weiss, 695 P.2d 778 (Colo. App. 1984); In re Fenimore, 782 P.2d 872 (Colo. App. 1989); In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied 846 P.2d 189 (Colo. 1993); In re Morehouse, 121 P.3d 264 (Colo. App. 2005).

The parties need not be accorded equal shares in the marital estate. In re Boyd, 643 P.2d 804 (Colo. App. 1982).

It has been held repeatedly that in matters of division of property the trial court is imbued with broad discretion, and that the mandate to distribute property equitably does not require equality. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).

Facially disproportionate division of property not inequitable where economic circumstances of each spouse were properly considered. In re Sorensen, 679 P.2d 612 (Colo. App. 1984).

There is no requirement that the court divide property with precise equality in order to achieve an equitable division. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).

Increases in separate property or marital property do not mandate that such property be divided equally, nor does it necessarily preclude the award of substantially all of such property to only one spouse. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

A trial judge cannot in all circumstances evaluate marital property with razor-sharp exactness so that each party's share has a precise monetary value. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).

The distribution of marital property must be just and equitable, but need not be necessarily equal. In re McGinnis, 778 P.2d 281 (Colo. App. 1989); In re Jaeger, 883 P.2d 577 (Colo. App. 1994); In re Goldin, 923 P.2d 376 (Colo. App. 1996); In re Stumpf, 932 P.2d 845 (Colo. App. 1996); In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).

This section authorizes the trial court to make an equitable and just division of the property of persons involved in divorce proceedings as that property is shown to exist at the time of the order entered with regard thereto. Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).

The dissolution court has jurisdiction to grant relief but only in equity and not at law. Tort claims concerning property that was the subject of the dissolution court may not be joined into an otherwise equitable dissolution proceeding. In re Mockelmann, 121 P.3d 335 (Colo. App. 2005).

Court may not become a surrogate attorney for party who has chosen not to appear before the court in order to reach an equitable division of marital property. Therefore, trial court did not abuse its discretion in failing to elicit evidence concerning husband's current earnings, the use husband made of funds he withdrew from the joint bank account, or the classification of certain property as separate or marital. In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).

The public policies to be furthered under this act include dividing of assets equitably and mitigating the harm to spouses and children. These policies take precedence over any contract arguments that may be raised by either spouse. Thus, the trial court was correct in refusing husband's indemnification argument and in interpreting the divorce decree as requiring the husband to compensate the wife for the fair market value of business property apportioned to her in the equitable distribution. In re Plesich, 881 P.2d 379 (Colo. App. 1994).

It is not objectionable that an exact dollar amount of the husband's contribution to assets cannot be determined from the testimony, as it is not a prerequisite to a fair and equitable division of property that such distribution be made in exact proportion to contribution of funds. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).

There is no mathematical formula for establishing a just and equitable property settlement, or alimony, or support. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

It is improper for the court to continue a joint or common tenancy between divorced spouses in marital property. Rather, in dividing the marital property, the court should leave to each party a definable portion of ownership. In re Paul, 821 P.2d 925 (Colo. App. 1991).

In dividing marital property, specific findings regarding value of assets are not required as long as basis for decision of trial court is apparent from its findings. In re Sharp, 823 P.2d 1387 (Colo. App. 1991).

This issue of property division in a divorce action is not one of marital fault, but whether the wife is entitled thereto by reason of having contributed to the accumulation or preservation of the assets sought to be divided, and whether her conduct was such as to justify her sharing in a division of such property. Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673 (1963); Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966); Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

Although marital fault or misconduct may not be considered by the trial court when it is dividing marital assets, economic fault may be considered. Economic fault comes into play in extreme cases, such as a spouse's dissipation of marital assets in the contemplation of divorce, and it must be strictly confined so as not to circumvent the prohibition against consideration of marital fault. In re Jorgenson, 143 P.3d 1169 (Colo. App. 2006).

Formerly, it was only one of the elements to be taken into consideration, and in the absence of moral delinquency or a complete disregard of the marriage vows, individual fault should not have acted as an obstacle to an equitable division of property. Bell v. Bell, 156 Colo. 513, 400 P.2d 440 (1965); Schrader v. Schrader, 156 Colo. 521, 400 P.2d 675 (1965).

Maintenance and property settlement must be considered together to achieve just result in dissolution proceedings. If an order dividing property cannot stand, the provision for maintenance must also be set aside to permit the trial court to consider both matters in relation to each other upon remand. In re Lord, 626 P.2d 698 (Colo. App. 1980), appeal dismissed, 653 P.2d 385 (Colo. 1982).

Property division must precede consideration of maintenance. In re Jones, 627 P.2d 248 (Colo. 1981); In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).

Fact that the parties waived maintenance has no bearing on the classification of stock shares as marital property; thus, wife's argument that because the stock purchase was made through a payroll deduction it constituted her compensation and could not be divided as property or considered maintenance, since both parties waived maintenance, was misplaced. In re Huston, 967 P.2d 181 (Colo. App. 1998).

There is a qualitative difference between a maintenance award and a division of property. A property division is final and non-modifiable absent conditions justifying relief from judgment. In re Wells, 833 P.2d 797 (Colo. App. 1991).

Statutory criteria for dividing property is general in nature, and the trial court has wide discretion in dividing marital property to accomplish a just result. In re Jackson, 698 P.2d 1347 (Colo. 1985).

Division of property must be based on the situation of the parties at the time of the decree rather than that at the time of their marriage. Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946); Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095 (1956); Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).

Subsection (1)(c) requires the trial court to consider the economic circumstances of the respective spouses at the time of the hearing relating to the division of marital property. Therefore, the trial court erred as a matter of law in considering the economic circumstances of the parties at the time of the dissolution, rather than at the time of the permanent orders, which occurred in the year following the entry of the dissolution. In re Burford, 26 P.3d 550 (Colo. App. 2001).

Every property division action depends on the particular facts of each case. Granato v. Granato, 130 Colo. 439, 277 P.2d 236 (1954).

Many factors enter into the determination of what division of property shall be made in the event of a divorce, among these are the value of the estate to be divided; the financial condition of the parties; the ability of each spouse to earn money; how the property was acquired; the age and status of the parties, and all pertinent facts and circumstances bearing on the question. Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662 (1955); Brigham v. Brigham, 141 Colo. 41, 346 P.2d 302 (1959); Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966); Larrabee v. Larrabee, 31 Colo. App. 493 504 P.2d 358 (1972).

Spouse's earning capabilities are properly part of the "economic circumstances" the court must consider in compliance with subsection (1). In re Faulkner, 652 P.2d 572 (Colo. 1982).

Future social security benefits may be properly considered as part of the "economic circumstances" the court must consider in compliance with subsection (1). The trial court may not, however, directly distribute marital property to offset the computed value of social security benefits. In re Morehouse, 121 P.3d 264 (Colo. App. 2005).

Contribution to an increase in separate property is an important factor, but not the sole factor to consider in dividing such property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

Value of husband's interest in corporation considered in determining division of property. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).

Factors such as occupational experience, coupled with education, training, and business background should also be considered in determining what division should be made of property. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

The award of rights in property to the wife was only another factor in the determination of the interests of the parties in the realty which they owned. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).

That the husband had transferred his property to his brother with fraudulent intent, and that it was reasonable to presume that he would not deal fairly, frankly, and openly with his wife and child, were facts properly to be considered by the court in making division of property. Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946).

Where the division of property was not in the nature of alimony or support money for the minor children, but was an equitable division based upon the fact that the wife, during marriage, in addition to the usual household duties, performed services that contributed to the husband's business advantage, a division of property could be ordered in addition to alimony. Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946).

The fact that much of the husband's property came by inheritance did not preclude the court from making an equitable division of property between a husband and a wife who had performed services contributing to her husband's business advantage, but was only one of many facts to be considered by the court. Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946).

Inherited property was formerly not per se excluded from consideration by the court in making a determination of the property rights of the parties. Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969).

Property division could be made even where a wife is not entitled to alimony. Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958).

It is not a necessary prerequisite that a wife show that she has contributed by funds or efforts to the acquiring of any specific property awarded her. Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958); Bell v. Bell, 156 Colo. 513, 400 P.2d 440 (1965); Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969).

But whether the wife has contributed to or in some manner aided in the accumulation or preservation of the assets sought to be divided must be ascertained. Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966).

Where by her services beyond the usual duties of a homemaker, a wife contributes either funds or services which enable the husband to increase his property holdings, or to preserve those already held, the wife is entitled upon divorce to an equitable award of money or property as may be justified by the circumstances of the parties. Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958).

The pecuniary resources of the husband were not to be regarded as a basis for a division of property, which was not the purpose of an allowance for the support of the wife, but they had a bearing upon the condition in life of the parties and thus upon the necessities of the wife, for as had been recognized in considering the liability of a husband for necessaries supplied to his wife, the term "necessaries" in this connection was not confined to articles of food or clothing required to sustain life, but had a much broader meaning and included such articles for use by a wife as were suitable to maintain her and the family according to the property and condition in life of her husband. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).

Where a wife advanced $8,000 from her own funds to her husband to purchase property, a finding that the husband was indebted to the wife in such amount and that she should have had a lien on property to secure repayment thereof, being amply supported by the evidence, was not erroneous. Flor v. Flor, 148 Colo. 514, 366 P.2d 664 (1961).

Where a wife in outburst of emotion, damaged or destroyed husband's personal effects, it was not error to award husband value thereof against the wife. Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962).

It was not a prerequisite to a fair and equitable division of property that the wife must show that she had contributed by funds or effort to the acquisition of the specific property awarded to her. Schrader v. Schrader, 156 Colo. 521, 400 P.2d 675 (1965).

Where the husband was the owner of a minority stock interest and was not the owner of the home, piercing the corporate veil to determine the true value of an interest in a closely held corporation did not allow for an order that part of the corporation's property should be distributed to or used by a legal stranger, and the wife was not entitled to corporate assets, but to a sum of money, or possibly even shares of stock, based upon the fair value of her husband's interest. Kalcevic v. Kalcevic, 156 Colo. 151, 397 P.2d 483 (1964).

A dissolution of a marriage must be effective before any court had power to decree a division of property between a husband and wife. Ikeler v. Ikeler, 84 Colo. 429, 271 P. 193 (1928); McCoy v. McCoy, 139 Colo. 105, 336 P.2d 302 (1959).

Otherwise, the parties would still be married, and while that status continues there is always the possibility of a termination of the separation, and a court is therefore without power to finally determine the property rights of the parties. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).

This section does not prohibit a hearing on the parties' property settlement before the entry of the divorce decree, but merely provides that at the time of the issuance of the divorce decree, or thereafter, on application the court may make orders relating to property divisions. Kalcevic v. Kalcevic, 156 Colo. 151, 397 P.2d 483 (1964).

Personal service upon nonresident is not prerequisite to division of property. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).

Jurisdiction over petitioner extends to property in state. Where petitioner has possession of property located in Colorado, the property being specifically described in the petition as an asset subject to disposition, the court acquires control of the property by virtue of its jurisdiction over petitioner, and the court thereby obtains jurisdiction to determine the appropriate disposition of that property. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).

Where the trial court has jurisdiction to divide property of the parties by virtue of the fact that the property was located in Colorado, it can properly adjudicate the rights of the parties with respect to property owned by them in Colorado. In re Wilson, 653 P.2d 85 (Colo. App. 1982).

Where trial court had jurisdiction to divide a partnership interest equitably, wife had standing to challenge partnership's valuation of husband's partnership interest and a legally cognizable interest in its value. In re Nevarez, 170 P.3d 808 (Colo. App. 2007).

The trial court did not exceed its jurisdiction in requiring the husband to execute and deliver deeds conveying his interest in the property to the wife, because although it has generally been held that a divorce court in one state does not have the power directly to affect, by means of its decree, the title to real property situated in another state, where the decree itself does not operate as a conveyance, but was wholly an in personam decree requiring that a party under the court's jurisdiction execute the conveyance, the court did not exceed its jurisdiction. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).

"Date of the hearing". Where the hearing on disposition of property takes more than one day and there is a substantial interval between hearing days, the "date of the hearing" referred to in subsection (5) is the day when the last evidence was presented on this matter. In re Femmer, 39 Colo. App. 277, 568 P.2d 81 (1977).

Where the trial court had jurisdiction to divide property at the time of entry of a final decree of divorce, but did not do so, nor then reserve the matter for further consideration, it lost jurisdiction to thereafter make a valid division of such property. Triebelhorn v. Turzanski, 149 Colo. 558, 370 P.2d 757 (1962).

Because former 46-1-5(2), C.R.S. 1963, did not contemplate or authorize the court to exercise continuing supervisory powers over the management of the property subject to division. Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971).

Former 46-1-5(2), C.R.S. 1963, required that an order dividing the property of the parties to a divorce proceeding be made either at the time the divorce decree was issued, or within such "reasonable time thereafter as may be set by the court at the time of the issuance of said divorce decree". Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971).

Where the trial court retained the jurisdiction to award such alimony as may be just upon a proper showing, in no way altered the finality of a portion of the decree which determined the rights and interests of the parties in the real estate. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).

The trial court retained jurisdiction of the controversy concerning the property settlement between these divorced parties as to matters affecting their property rights following the death of the husband. Sarno v. Sarno, 28 Colo. App. 598, 478 P.2d 711 (1970).

Trust where wife settlor and sole income beneficiary. Where wife had established a trust with herself as sole income beneficiary, the court had jurisdiction, in a subsequent divorce action, to order the trustee to make payments from the trust to the husband. In re Kaladic v. Kaladic, 41 Colo. App. 419, 589 P.2d 502 (1978).

The trial court in the absence of agreement between the parties to the divorce action could not, over the objection of the wife, order that her share in the property division be impressed with a trust. Ferguson v. Olmsted, 168 Colo. 374, 451 P.2d 746 (1969).

Reconsideration of property division to correct error unnecessary absent contest. When neither party contests a trial court's division of property it is not necessary that the court be able to reconsider the property division in order to correct error in the provisions for maintenance and attorney fees. In re Jones, 627 P.2d 248 (Colo. 1981).

Payment of interest on spouse's equity in house. The wife may be required to pay interest on the husband's share of the equity in the house which was awarded to the wife, for the period between the dissolution of marriage and payment of the equity. In re Garcia, 638 P.2d 848 (Colo. App. 1981).

Interest on portion of sale price of marital residence representing husband's share is to be calculated from date specified in decree that payment of such amount become due, not date of sale. In re Schutte, 721 P.2d 160 (Colo. App. 1986).

Transfer is not taxable event. When, under this section, a property settlement agreement is entered into providing for a transfer of property from husband to wife in acknowledgment of the wife's contribution to the accumulation of the marital estate, or a decree of the divorce court requires such transfer because of wife's contributions to the accumulation of the family estate, and the transfer is not made in satisfaction of the husband's obligation for support, the transfer is not a taxable event giving rise to capital gains tax liability for purposes of federal income taxation. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975).

Acts of depletion of marital estate are relevant considerations in making a division of property and not an imputation of marital misconduct on the part of a spouse. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).

Spouse may be required to apply future earnings against present marital debts. Subsection (2)(c) is not violated solely because the award forces the husband to apply future earnings to retire present debts of the marital estate. In re Faulkner, 652 P.2d 572 (Colo. 1982).

A spouse's contribution to the professional education and career of the other spouse must be considered in the distribution of property pursuant to this section. In re Speirs, 956 P.2d 622 (Colo. App. 1997).

Gift by a third-party donor during the marriage that increases the value of a jointly titled asset is presumably a gift to the marriage. This presumption can only be rebutted by clear and convincing evidence. In re Krejci, 2013 COA 6, 297 P.3d 1035.

Trial court erred in classifying pre-decree but post-separation student loan debt as wife's separate debt. All debt acquired during a marriage is marital debt. However, classifying student loan debt as marital debt does not preclude court from allocating responsibility for payment of the loan to the party who incurred the loan. Because court's error affects substantial rights, order dividing property must be reversed. Court must consider parties' economic circumstances at the time of remand. In re Morton, 2016 COA 1, __ P.3d __.

B. Definition of Property.

This section does not define "property" but merely specifies that the "marital property" is to be divided "in such proportions as the court deems just". In re Ellis, 36 Colo. App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317, 552 P.2d 506 (1976).

The legislature intended the term "property" to be broadly inclusive, as indicated by its use of the qualifying adjective "all" in subsection (2) of this section. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).

There are necessary limits upon what may be considered "property", and the concept as used by the general assembly is other than that usually understood to be embodied within the term. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).

An insurance policy with no cash surrender value does not represent any asset proper for consideration on the theory that it is "property" which is subject to equitable division between the parties. Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).

Degree is not property. Where a spouse provides financial support while the other spouse acquires a degree, the degree is not considered property. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977); In re Olar, 747 P.2d 676 (Colo. 1987).

At best, education is an intangible property right, the value of which, because of its character, cannot have a monetary value placed upon it for division between spouses. In re Graham, 38 Colo. App. 130, 555 P.2d 527 (1976), aff'd, 194 Colo. 429, 574 P.2d 75 (1978); In re Olar, 747 P.2d 676 (Colo. 1987).

And is not subject to division under this section. Although a litigant's education is a factor to be considered, among many others, in arriving at an equitable property division and in determining matters of maintenance and child support, it is not property subject to division under this section. In re Graham, 38 Colo. App. 130, 555 P.2d 527 (1976), aff'd, 194 Colo. 429, 574 P.2d 75 (1978); In re Olar, 747 P.2d 676 (Colo. 1987); In re Speirs, 956 P.2d 622 (Colo. App. 1997).

Husband's beneficial interest in discretionary trust is not "property" subject to division as such under this section. In re Rosenblum, 43 Colo. App. 144, 602 P.2d 892 (1979).

Husband's rights in a discretionary trust are to be considered by the court as any other "economic circumstance" of the husband in determining a just division of the marital property pursuant to subsection (1)(c) and as a "relevant factor" in making an award of maintenance under 14-10-114 (2). In re Rosenblum, 43 Colo. App. 144, 602 P.2d 892 (1979).

Wife's remainder interest in her grandfather's irrevocable trust was a gift, vested long before her marriage to husband, and was therefore separate property. In re Dale, 87 P.3d 219 (Colo. App. 2003).

Remainder interests in irrevocable trusts are property for purposes of the disposition of property in dissolution actions. Such interests may present only a right to future enjoyment and are subject to complete divestment or defeasance, but they are certain, fixed interests subject only to the condition of survivorship and may not be withheld by the trustee in his or her discretion. Thus, they are distinct from interests in a discretionary or revocable trust, which are viewed as mere expectancies. In re Dale, 87 P.3d 219 (Colo. App. 2003).

Wife's interest in family trust constitutes "property" and is not a "mere expectancy", despite the fact that wife's father must pay the entire net income from the trust to himself during his lifetime and has the discretion to invade the corpus for his own support, care, and maintenance. Because the trust was created during the marriage, wife's interest constitutes a gift that is excepted from the definition of marital property, but appreciation on wife's interest in the trust during the course of the marriage does constitute marital property. In re Balanson, 25 P.3d 28 (Colo. 2001).

Trial court properly determined that any increase in the value of wife's vested remainder interest in an irrevocable trust during the marriage was marital property subject to division under subsection (4). In re Dale, 87 P.3d 219 (Colo. App. 2003).

Court found husband's vested remainder interest in his father's trust to be a property interest, where father possessed the power to revoke the trust during his lifetime but died without exercising that power. Husband's remainder interest in his father's trust was, therefore, subject to depletion only by exercise of the trustee's right to invade the corpus of the trust for the benefit of husband's mother, which right did not convert husband's vested remainder property interest into a mere expectancy. In re Gorman, 36 P.3d 211 (Colo. App. 2001).

Court found husband's vested remainder interest in his mother's trust to be a property interest, even though the mother, still living at the time of the permanent orders, had the power to revoke the trust during her lifetime. The mother's exercise of her right to revoke is a condition subsequent, and unless the event occurs, husband's interest remains vested. In re Gorman, 36 P.3d 211 (Colo. App. 2001).

The legislative history shows that subsection (7)(b) was adopted to overturn the holding in Gorman that a vested remainder interest in a revocable or modifiable trust is a property interest subject to division. The legislative history reveals that the general assembly relied upon the plain meaning of "heir at law" and that the statute applies only to remainder interests in trusts that are revocable or amendable and not to remainder interests in irrevocable trusts. In re Dale, 87 P.3d 219 (Colo. App. 2003).

The term "heir at law" in subsection (7)(b) pertains to any interest or resource a spouse may expect to inherit from his or her parent were the parent to die intestate. As a practical consequence of that language, the trial court may not consider any such prospective inheritance as either a property interest or as an economic circumstance. By including the phrase "heir at law," the statute thus treats intestate expectancies consistently with interests under a donative third-party instrument that can be revoked or changed. In re Dale, 87 P.3d 219 (Colo. App. 2003).

Interest in a trust cannot be classified as property until that trust becomes irrevocable under subsection (7)(b). In re Balanson, 107 P.3d 1037 (Colo. App. 2004).

A life insurance policy lacking cash surrender value is not "property" since it has not objective, tangible, or vested value that can be divided. McGovern v. Broadstreet, 720 P.2d 589 (Colo. App. 1985).

Discretionary trust corpus cannot be considered the separate property of a beneficiary for purposes of division of property. This is because the beneficiary of such trust has no contractual or enforceable right to income or principal from the trust, cannot force any action by the trustee, cannot assign an interest in the trust, and because such interest cannot be reached by either party's creditors. In re Jones, 812 P.2d 1152 (Colo. 1991).

When beneficiary has no interest in the corpus, and right to control how the corpus is invested, the income is a mere gratuity deriving from the beneficence of the settlors. In re Guinn, 93 P.3d 568 (Colo. App. 2004).

In the absence of some ownership interest in the corpus itself, even a mandatory right to unrealized future discretionary allocations of income is an expectancy arising from the largess of the settlors and does not constitute property. In re Guinn, 93 P.3d 568 (Colo. App. 2004).

Income received by the wife from the discretionary trust during the marriage is properly considered a gift and thus not divisible pursuant to subsection (2)(a). In re Jones, 812 P.2d 1152 (Colo. 1991).

Wife's expectancy interest in a discretionary trust should be considered an economic circumstance pursuant to subsection (1)(c). In re Jones, 812 P.2d 1152 (Colo. 1991).

Wife's future anticipated interest in German "social security" benefits is an economic circumstance that can be considered pursuant to subsection (1)(c) in the equitable division of the marital estate. In re Lockwood, 971 P.2d 264 (Colo. App. 1998).

Trial court did not err in concluding that an irrevocable trust of which wife was beneficiary but over which wife had no control over the principal or the income and from which wife had no right to demand or request distributions was not marital property but an "economic circumstance" to be considered in arriving at an equitable property division. In re Pooley, 996 P.2d 230 (Colo. App. 1998).

Vested and matured military retirement pay accrued during all or part of a marriage constitutes marital property subject to equitable distribution in a marriage proceeding. In re Gallo, 752 P.2d 47 (Colo. 1988).

The key to an equitable distribution is fairness, not mathematical precision. Two possible methods of valuation are the present cash value method and the reserve jurisdiction method. In re Gallo, 752 P.2d 47 (Colo. 1988).

The rule that military retirement pay is marital property subject to equitable distribution in a marriage proceeding should be applied prospectively only. In re Wolford, 789 P.2d 459 (Colo. App. 1989).

Trial court, which had personal jurisdiction over husband but lacked the authority to divide the husband's military pension as marital property, did not retain jurisdiction to divide the pension at a later date. Even though final decree provided that trial court had continuing jurisdiction over the action and that the wife would remain entitled to any and all military benefits, the court did not have the authority to divide military pension as a result of subsequent case law declaring such pensions to be marital property. Language in final decree refers only to the court's continuing authority to divide property as such court had on the date of the final decree. In re Booker, 833 P.2d 734 (Colo. 1992).

Federal act specifying whether the court has jurisdiction over a military member's pension preempts state rules of procedure governing jurisdiction. In re Booker, 833 P.2d 734 (Colo. 1992).

Military retirement benefits subject to distribution as marital property in dissolution of marriage cases are limited to disposable retired pay which, under federal law, excludes disability pay. The exclusion also applies to that portion of a veteran's retirement pay that is computed using the percentage of disability on the date the veteran is placed on the temporary disability retirement list (TDRL). In re Williamson, 205 P.3d 538 (Colo. App. 2009).

Because husband was not entitled to a longevity retirement at the time he was placed on the TDRL, no portion of his retirement benefit that is based upon his disability status is distributable to wife pursuant to the parties' separation agreement that required the parties to divide the husband's pension equally according to the time rule formula. In re Williamson, 205 P.3d 538 (Colo. App. 2009).

In case where service member had attained twenty or more years of service and was eligible for a longevity retirement when placed on the TDRL, an amount equal to the amount of TDRL pay, as calculated based on husband's percentage of disability when he was placed on the TDRL, must be excluded from the marital property. Any amounts in excess of that amount may be divided as marital property. In re Poland, 264 P.3d 647 (Colo. App. 2011).

Trial court did not err in its conclusion that military voluntary separation incentive payments constitute marital property subject to distribution. Compensation that is deferred until after the dissolution of marriage, but fully earned during the marriage, is marital property. In re Shevlin, 903 P.2d 1227 (Colo. App. 1995).

Cash received during the marriage pursuant to an employment contract which provides for payments in installments in advance of work is cash on hand and therefore marital property subject to division and not future income. In re Anderson, 811 P.2d 419 (Colo. App. 1990).

Compensation deferred until after the dissolution, but earned fully during the marriage, is marital property. Wife's performance award for her performance as an employee during the marriage was marital property, subject to equitable division. In re Huston, 967 P.2d 181 (Colo. App. 1998).

Although the interest of the policy owner of a life insurance policy constitutes marital property, the interest of the named beneficiary is only an expectancy and vests no present property interest in the beneficiary. Gorman-English v. Estate of English, 849 P.2d 840 (Colo. App. 1992).

A life insurance policy lacking cash surrender value is not "property" since it has no objective, tangible, or vested value that can be divided in a dissolution action. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).

Spouse's disability pension payments do not constitute marital property and are not subject to distribution in a dissolution of marriage action. Such a distribution would contravene the legislative intent that only the beneficiary receive the disability benefits. In re Peterson, 870 P.2d 630 (Colo. App. 1994).

However, income received during the marriage from disability benefits becomes a marital asset when it is commingled with marital funds. Disability payments themselves are not marital property, but they lose their exempt character when commingled with marital assets. In re Green, 169 P.3d 202 (Colo. App. 2007).

Public employees' retirement association (PERA) disability benefit prior to age 65 replaces future earnings and does not constitute marital property. In re Hansen, 62 P.3d 1066 (Colo. App. 2002).

When disabled employee reaches the age of 65, the portion of PERA benefits attributable to years of service before disability constitutes marital property, and the balance remains separate property. Regardless of employee's recovery or work status, the benefits, excluding the unearned service credit projected until age 65, are more akin to retirement benefits. In re Hansen, 62 P.3d 1066 (Colo. App. 2002).

A stock option that is not vested does not constitute property. Only a vested stock option is "property" subjection to a determination of whether it was granted in consideration of past or future services for purpose of ascertaining its marital or separate nature. In re Huston, 967 P.2d 181 (Colo. App. 1998).

Employee stock option constitutes property for purposes of dissolution only when employee has enforceable right to options. Whether the stock option is "vested" is not determinative. When an employee has a presently enforceable right under the contract, the stock option is property and not a mere expectancy, regardless of whether the options are presently exercisable. In re Powell, 220 P.3d 952 (Colo. App. 2009).

Parents' promise to give property to husband in their will does not make the property marital property. Any interest in a donative third-party instrument that is amendable or revocable, is not marital property subject to division. In re Schmedeman, 190 P.3d 788 (Colo. App. 2008).

Wife's objection to husband's valid gift of property during the marriage, absent evidence that gift was made in contemplation of divorce, did not preserve wife's right to have property classified as marital property upon dissolution. Classification and valuation of marital property takes place upon dissolution. Absent dissipation, "marital" property that no longer exists cannot be valued. In re Schmedeman, 190 P.3d 788 (Colo. App. 2008).

Gifts made from one spouse to the other during the course of the marriage cannot be presumed to be gifts, nor do they necessarily constitute marital property. To qualify as a "gift", a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift. In re Balanson, 25 P.3d 28 (Colo. 2001); In re Amich, 192 P.3d 422 (Colo. App. 2007).

Accrued vacation and sick leave is marital property where employee spouse has an enforceable right to be paid for the leave. Where the value of the leave at the time of dissolution can be reasonably ascertained, it is subject to equitable division under the UDMA. Where the value of such leave cannot be reasonably ascertained, the court should consider the employee spouse's right to the leave as an economic circumstance of the parties when equitably dividing the marital estate. In re Cardona, 2014 CO 3, 316 P.3d 626.

C. Discretion of Court.

The division of property in a divorce action is a matter within the sound discretion of the trial court, and its judgment will not be disturbed on review unless it is shown that the division made was an abuse of discretion. Granato v. Granato, 130 Colo. 439, 277 P.2d 236 (1954); Todd v. Todd, 133 Colo. 1, 291 P.2d 386 (1955); Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958); Drake v. Drake, 138 Colo. 388, 33 P.2d 1038 (1959); Bell v. Bell, 150 Colo. 174, 371 P.2d 773 (1962); Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962); Harvey v. Harvey, 150 Colo. 449, 373 P.2d 304 (1962); Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673 (1963); Bell v. Bell, 156 Colo. 513, 400 P.2d 440 (1965); Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971); Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972); Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973); Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973); In re Armbeck, 33 Colo. App. 260, 518 P.2d 300 (1974); Harrod v. Harrod, 34 Colo. App. 172, 526 P.2d 666 (1974); In re Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975); Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976); In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977); In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977); In re Schulke, 40 Colo. App. 473, 579 P.2d 90, cert. denied, 439 U.S. 861, 99 S. Ct. 181, 56 L. Ed. 2d 170 (1978); In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979); In re Garcia, 638 P.2d 848 (Colo. App. 1981); In re Hoffman, 650 P.2d 1344 (Colo. App. 1982); In re Faulkner, 652 P.2d 572 (Colo. 1982); In re Mann, 655 P.2d 814 (Colo. 1982); In re Lester, 647 P.2d 668 (Colo. App. 1982); In re Seely, 689 P.2d 1154 (Colo. App. 1984); In re Sarvis, 695 P.2d 772 (Colo. App. 1984); In re Hulse, 727 P.2d 876 (Colo. App. 1986); In re Price, 727 P.2d 1073 (Colo. 1986); In re McGinnis, 778 P.2d 281 (Colo. App. 1989); In re Stumpf, 932 P.2d 845 (Colo. App. 1996); In re Dale, 87 P.3d 219 (Colo. App. 2003).

The division of marital property is committed to the sound discretion of the trial court and there is no rigid mathematical formula that the court must adhere to. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).

Judiciary not to interfere with "division" of property. Whatever the role of judicial solicitude in the division of property, it will not be permitted to interfere with the statutory command that the property be literally and effectively "divided". In re Gehret, 41 Colo. App. 162, 580 P.2d 1275 (1978).

Property division hearings are equitable in nature and trial courts have broad discretion to fashion an equitable division of the parties' property in a dissolution proceeding. In re Wells, 850 P.2d 694 (Colo. 1993).

Under the authority of this section, the trial court is clearly limited in adjusting and dividing the assets of the husband and wife as between them alone. Giambrocco v. Giambrocco, 161 Colo. 510, 423 P.2d 328 (1967).

Trial court lacks authority to award marital property to the children of the marriage or to compel a parent to make such a conveyance. In re Mohrlang, 85 P.3d 561 (Colo. App. 2003).

Under this section authorizing a "division of property" in a divorce action, the court may decree a transfer from the wife to the husband, in a proper case, even of property which he has conveyed to her. Ikeler v. Ikeler, 84 Colo. 429, 271 P. 193 (1928).

It was proper for the trial court to consider contributions of parties to the increase in or accumulation of assets by means other than direct contribution of capital. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).

Where the parties to a divorce action agreed to submit the partition of real property issue to the court, rather than incur the expense of a formal statutory partition proceeding, the court, under its broad powers, could have declined to partition at that point, and, in the absence of a final agreement concerning the property, it could either have sold the property and divided the proceeds, or it could have declared that each party would henceforth be a tenant in common. Either course would have been a fair and equitable division of the property. Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973).

Judicial notice of general economic trends, such as the inflationary trend since the time of the marriage, was proper in considering the disposition of property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

A decree of a trial court permitting a wife to keep her separate inherited property and awarding her a division of property acquired through the joint efforts of the parties, where no alimony is requested or awarded, does not constitute an abuse of discretion. Green v. Green, 139 Colo. 551, 342 P.2d 659 (1959).

Where stocks and securities acquired solely by a defendant's mother out of her inheritance, and earnings were held in joint tenancy with defendant, it was error for the trial court to allot one half of the value thereof to defendant in making a division of property as between husband and wife. Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095 (1956).

Non-marital disability pension payments may be considered as an economic circumstance in determining maintenance. In re Peterson, 870 P.2d 630 (Colo. App. 1994).

In a property settlement proceedings in a divorce action, where the evidence disclosed that the wife had contributed substantially to the family income over a period of years, which enabled the husband to devote virtually all of his earnings to assisting his mother in preserving a valuable piece of business property, through whom he received a substantial inheritance, which he would not have received but for the wife's efforts and contributions during the period, it was error for the court to fail to take such inheritance into consideration in determining the property settlement between the parties. Lee v. Lee, 133 Colo. 128, 293 P.2d 293 (1956).

A court order empowering the wife to make the selection of the husband's stocks was erroneous because the division is a function requiring the exercise of judicial discretion, and the danger in delegating full discretion to the wife was that her selection could work to an unfair advantage for her and a decided detriment to the husband's holdings. Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969).

Where properties awarded to the husband were heavily encumbered, and the businesses awarded financially involved, and in addition he was required to pay off a large indebtedness on property awarded to wife plus substantial support for children, evidence offered was insufficient to support such burdensome order. Bell v. Bell, 150 Colo. 174, 371 P.2d 773 (1962).

Where under facts disclosed, order of division of property in divorce action was so manifestly unfair, inequitable, and unconscionable as to amount to an abuse of discretion, it will be ordered vacated and set aside. Bell v. Bell, 150 Colo. 174, 371 P.2d 773 (1962).

No abuse of discretion. In and of itself, the award of 35 percent of the marital assets is not an abuse of discretion. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).

And although distribution was not equal, it certainly was equitable, and thus well within the court's discretion. In re Gercken, 706 P.2d 809 (Colo. App. 1985).

Award of interest within trial court's discretion. Whether interest should be allowed on a promissory note which represents a property division award upon dissolution of marriage is a matter which lies within the discretion of the trial court based on all of attendant circumstances. In re Lucas, 631 P.2d 1175 (Colo. App. 1981).

Trial court is required to consider the economic circumstances of the spouses at the time of any hearing relating to the division of marital property. In re Wells, 850 P.2d 694 (Colo. 1993).

Marital partnership interest made subject to "charging order" pursuant to 7-60-128 as part of property division is not an abuse of discretion, nor was it error to leave the actual amount recoverable to determination in a separate action, although property division had to be set aside because it could be unconscionable. In re Weiss, 695 P.2d 778 (Colo. App. 1984).

Where a wife was awarded a final divorce decree without alimony and given control of a jointly owned taxicab business, it was held that there was ample evidence in the record to support the finding of fact by the trial court that wife did contribute to and was entitled to a one-half interest in the business since it appeared that the operations, continued under her guidance and later under a receiver with her assistance, owed their successful outcome to these efforts. Shreyer v. Shreyer, 112 Colo. 281, 148 P.2d 1003 (1944).

Award of a share of benefits of husband's vested pension plan through the use of installment payments when lump-sum distribution at the time of decree was impractical is within the discretion of court. In re Blake, 807 P.2d 1211 (Colo. App. 1990).

Trial court's use of two different methods to distribute the parties' two pensions, was within the sound discretion of the trial court. In re Kelm, 912 P.2d 545 (Colo. 1996).

The trial court did not abuse its discretion in awarding the property and the proceeds therefrom to plaintiff where evidence showed that he furnished substantially all the purchase money, but allowed title to be taken in his wife's name. Bieber v. Bieber, 112 Colo. 229, 148 P.2d 369 (1944).

Where the husband asserted the court abused its discretion in awarding the real property to the wife without having first determined its value, there was no abuse of discretion, because before value becomes important the court must first determine whether the property is subject to division. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).

Where the husband was on active duty as a petty officer in the Navy during the five year duration of the marriage, and the court found that his participation, if any, in the management of the land given to the wife prior to the marriage was adequately compensated by the income received therefrom, and the court further found that the gift from the wife's mother was intended primarily as a gift to her own children and that the husband was not entitled to retain any interest in the land under the circumstances of this case, the award of the property to the wife, based on these findings was not an abuse of discretion. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).

Court abused its discretion when it acknowledged the parties' relatively equal contributions to the marriage and marital property, yet awarded the wife only the benefits of the increased value of the property without any responsibilities for its burdens. Under these circumstances, equity requires that the wife share a part of the debt incurred on the home during the marriage as well as a part of the increase in the home's value. In re Kiefer, 738 P.2d 54 (Colo. App. 1987).

It was an abuse of discretion to give the wife ownership of the couple's percentage of a partnership, granting one-third to the husband only upon full or partial distribution and holding the husband responsible for payment of his share of capital calls and any debt related to the partnership interest. In re Paul, 821 P.2d 925 (Colo. App. 1991).

Once initial order is entered, subsequent hearings are not merely corrections of errors committed by the trial court in the first proceeding. In re Wells, 850 P.2d 694 (Colo. 1993).

D. Antenuptial Agreements.

Separation agreements and antenuptial agreements are separate and distinct legal documents. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd in part on other grounds, 653 P.2d 728 (Colo. 1982).

Antenuptial contracts may be rescinded or modified by the mutual consent of the parties and whether such a contract has been rescinded by mutual consent is a question of fact. In re Young, 682 P.2d 1233 (Colo. App. 1984).

Spouses-to-be have right to enter into antenuptial agreements which contemplate the possibility of dissolution. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd in part on other grounds, 653 P.2d 728 (Colo. 1982).

Agreement not bar to claim for maintenance unless expressly relinquished. In the absence of any reference in an antenuptial agreement to a relinquishment of the right to maintenance, the agreement does not bar the wife's claim for maintenance. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).

As a general principle, antenuptial agreements will be given effect in this state. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).

Antenuptial agreements, as a matter of law, do not violate public policy and are not void ab initio in Colorado. In re Newman, 653 P.2d 728 (Colo. 1982).

Antenuptial agreements, absent fraud, are binding on the parties according to their terms, and the judiciary cannot relieve the parties from the obligations thereof. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).

Otherwise legislative provisions control. When an antenuptial agreement does not provide for the distribution of marital property upon the dissolution of the marriage, then the applicable legislative provisions are controlling. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).

Section 14-10-112 conscionability review not extended to antenuptial agreements. The conscionability review of separation agreements, pursuant to 14-10-112, does not extend to antenuptial agreements. In re Newman, 653 P.2d 728 (Colo. 1982).

Burden of proof is on party seeking to avoid antenuptial contract. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979); In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).

The burden of proving failure to disclose is upon the party contesting the validity of the antenuptial agreement. In re Ross, 670 P.2d 26 (Colo. App. 1983).

Failure to provide wife with independent counsel does not render antenuptial agreement void per se. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979).

Agreement not set aside solely because bulk of marital assets go to husband. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979).

Itemized property list not necessary for agreement. Where the amount of the husband's assets was not materially misstated, his failure to supply an itemized list was not fatal to the validity of an antenuptial agreement. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).

While it would have been preferable for the trial court to have entered specific values for each item in a property division, reversal was not required where it could determine that the property division made was not an abuse of discretion. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980).

Where antenuptial agreement is unambiguous as to treatment of increases in value of separate property, the court is required to enforce the agreement according to its terms. In re Vickers, 686 P.2d 1370 (Colo. App. 1984).

Where antenuptial agreement was silent on matter of attorney fees, the awarding of such fees was controlled by 14-10-119. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd in part on other grounds, 653 P.2d 728 (Colo. 1982).

For holding as to enforceability of prenuptial agreement which conceived disposition of property, see Franks v. Wilson, 369 F. Supp. 304 (D. Colo. 1973), appeal dismissed, 415 U.S. 986, 94 S. Ct. 1583, 39 L. Ed. 2d 884, reh'g denied, 416 U.S. 975, 94 S. Ct. 2004, 40 L. Ed. 2d 565 (1974).

E. Separate Property.

Property must be classified as separate or marital. Under the requirements of this section, it is essential for the court to classify the property of the parties as either separate or marital. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

This section mandates that separate property remain separate, subject to the narrow exception that any increase in value during marriage is marital property. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).

Property acquired by either spouse during the marriage is presumed marital as is the appreciation in the value of separate property and any income produced by separate assets during the marriage. In re Dale, 87 P.3d 219 (Colo. App. 2003).

However, the marital property presumption can be overcome by evidence establishing that the property in question was acquired by a method listed in subsection (2), which excludes, among other things, property from the marital estate that was acquired in exchange for premarital property. To claim separate ownership successfully under the exchange provision, a spouse must trace the property by proving a series of exchanges back to an original asset. In re Dale, 87 P.3d 219 (Colo. App. 2003).

Court must determine the separate properties' appreciation in value and the part of the increase that is marital property and take those values into consideration when determining the property division. In re Martinez, 77 P.3d 827 (Colo. App. 2003).

In order to obtain status of separate property under this section, it must appear that the property was acquired prior to marriage with the intent that it become the separate property of husband. In re Altman, 35 Colo. App. 183, 530 P.2d 1012 (1974).

Property not "separate" because of spouse's lack of interest or concern. Property titled in the name of one spouse that was acquired during the parties' marriage cannot be considered nonmarital property merely because of a course of conduct by the other spouse showing a lack of interest or concern for property. In re Heim, 43 Colo. App. 511, 605 P.2d 485 (1979).

The classification of increases in separate property as marital property is a substantial departure from prior law wherein such increases were generally classed as separate property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

When award of increases in separate property to be made. The award of increases in separate property is to be made after considering all of the factors stated in subsection (1)(a) through (1)(d), and not just contribution. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977); In re Seewald, 22 P.3d 580 (Colo. App. 2001).

It is proper for a court to consider the depletion of separate property for marital purposes pursuant to subsection (1)(d); however, the statute does not require that the depletion of separate property for nonmarital purposes be considered and the trial court's failure to make findings as to this factor was harmless error. In re Burford, 26 P.3d 550 (Colo. App. 2001).

Where court without authority to order sale of home. Where home was separate property of husband before marriage and after dissolution of marriage, the court was without authority to order sale of home despite fact that increase in the value of home during marriage was marital property. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).

Income received by a spouse that is generated from the property of a third party is not marital property. In re Guinn, 93 P.3d 568 (Colo. App. 2004).

Money accumulated in pension fund prior to marriage should be considered "separate property". In re Rogers, 709 P.2d 1383 (Colo. App. 1985).

Husband's worker's compensation settlement is separate property to the extent it compensates for post-dissolution loss of income or earning capacity. In re Breckenridge, 973 P.2d 1290 (Colo. App. 1999).

Insurance proceeds acquired by husband during marriage constituted a gift and was properly classified as separate property. In re Sharp, 823 P.2d 1387 (Colo. App. 1991).

Shares of stock owned by husband at the time of the marriage that were later involved in a stock split during the marriage were properly considered husband's separate property except to the extent the shares appreciated during the marriage. In re Renier, 854 P.2d 1382 (Colo. App. 1993).

In order for premarital property to retain its separate character, the property must be traceable to specific assets. In the absence of evidence tracing shares of stock obtained in a stock split during the marriage to the shares husband owned at the time of the marriage, the additional shares should not have been set apart as husband's separate property where husband combined the additional shares with other shares acquired during the marriage and many of the combined shares were sold. In re Renier, 854 P.2d 1382 (Colo. App. 1993).

Trial court did not abuse its discretion when it awarded the wife 50 percent of the husband's disposable retirement pay where the ruling was rationally based on considerations of the wife's marital contributions during the husband's military career and the fact that the wife had no survivor benefits in the event of the husband's death. In re Sinkovich, 830 P.2d 1101 (Colo. App. 1992).

Trial court erred in setting apart to wife as her separate property the portions of investment traceable to income generated from trust. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).

Requiring a party to execute a noncompete agreement is within court's authority where agreement is necessary to protect goodwill of business awarded to other party and agreement is otherwise valid under 8-2-113. In re Fischer, 834 P.2d 270 (Colo. App. 1992).

Gifts made from one spouse to the other during the course of the marriage cannot be presumed to be gifts, nor do they necessarily constitute marital property. To qualify as a "gift", a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift. In re Balanson, 25 P.3d 28 (Colo. 2001); In re Amich, 192 P.3d 422 (Colo. App. 2007).

To qualify as a gift, a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift. That determination hinges fundamentally on the intent and acts of the donor and recipient, which, in turn, are questions of fact for the trial court to resolve. In re Dale, 87 P.3d 219 (Colo. App. 2003).

Finding that home and car were wife's separate property upheld. In re Bartolo, 971 P.2d 699 (Colo. App. 1998).

The portion of husband's railroad retirement benefits that are equivalent to those an employee would have received if covered by the Social Security Act was husband's separate property, not subject to division, and court erred in treating it as marital property along with the portion of the railroad retirement benefits that are supplemental annuities. In re Zappanti, 80 P.3d 889 (Colo. App. 2003).

Bailment allowed between spouses. Subsection (1) does not prohibit a court from assigning liability to one spouse for the loss of separate property belonging to the other spouse upon a finding of negligence on the part of the spouse in possession of the property. In re Amich, 192 P.3d 422 (Colo. App. 2007).

Separate property pledged as collateral does not become marital property. The parties secured a line of credit for marital purposes using husband's separate property. Loan payments were made when due; the husband and wife did not default; and the lender did not foreclose on the property to satisfy the debt. In re Corak, 2014 COA 147, __ P.3d __.

F. Marital Property.

The purpose of the division of marital property is to allocate to each spouse what equitably belongs to him or her. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).

Weighing of factors set forth in this section is within the sound discretion of the trial court. In re Casias, 962 P.2d 999 (Colo. App. 1998).

The court had the discretion to enter an equitable division of property where the court had retained jurisdiction and a period had expired for meeting certain conditions set forth in an agreement between the parties and such conditions had not been met. In re Ebel, 874 P.2d 406 (Colo. App. 1993).

Division gives each party some attributes of ownership. The efficacy of a division of property in a dissolution of marriage action results from placing in the hands of each party a definable or ascertainable portion of at least some of the attributes of ownership. In re Cehret, 41 Colo. App. 162, 580 P.2d 1275 (1978).

Right to property division inchoate. In dissolution of marriage proceedings, a wife may be entitled to a division of the husband's property, and that right, prior to the dissolution action and possibly subject to an exception or two, is completely inchoate. In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).

Property to be transferred is not determined at time of filing. At the time of the filing of the dissolution of marriage action in which the division of property will be later determined, a vesting takes place, and this interest which has vested is inchoate only in the sense that, prior to the division, the property to be transferred to the wife has not yet been determined. In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).

At time divorce action is filed there vests in wife her interest in property in name of husband. In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).

Justice requires that the joint accumulations of a husband and wife, or property which was acquired during marriage or added to through the joint efforts of both spouses, should be considered for equitable division on termination of the marriage. Kalcevic v. Kalcevic, 156 Colo. 151, 397 P.2d 483 (1964).

Specific circumstances and feelings of each party are appropriate considerations in determining which specific items of property should be sold, or alternatively, distributed to a particular party. In re Woodrum, 618 P.2d 732 (Colo. App. 1980).

Highly relevant factor to be considered by court in effecting just division of marital property is the extent to which the division will promote the objective of providing for each party's financial needs without maintenance. In re Jones, 627 P.2d 248 (Colo. 1981).

Value of separate property considered. The court must consider all of the many relevant facets of the situation of the parties, including the value of property set apart to each spouse. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).

Upon remand to redistribute marital property, trial court may consider the economic circumstances of each spouse. In re Wells, 850 P.2d 694 (Colo. 1993).

Award of additional $6,000 for "recreational opportunities" for children was fairly embraced within the factors to be considered by court in dividing the marital property and did not create a separate "recreational fund" for the needs of the children. In re Jackson, 698 P.2d 1347 (Colo. 1985).

Contribution of spouse to acquisition of specific property is not a factor to be considered in determining whether that property is part of the marital estate, but this may be considered in determining the shares allocated to each spouse. In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977).

Decrease in value of separate property. Under subsection (1)(d), the court may consider as a relevant factor in dividing marital property the decrease in the value of separate property. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975).

When applying subsection (1)(d), the court must consider an increase in the value of separate property without reference to the fact that the increase has just previously been classified as marital property under subsection (4). The trial court did not err in finding that there was an increase in the value of the husband's separate property during the marriage despite the fact that there was an aggregate decrease in the value of such property. In re Burford, 26 P.3d 550 (Colo. App. 2001).

Value of retirement account considered. The public employees' retirement association's interest of the husband or his estate is not subject to divestment by death or discharge. At some time, he or his estate must receive, at the very minimum, the amount of accumulated deductions in his individual account. His rights have a presently determinable cash surrender value equal to his salary deductions which otherwise would have been available for the use of the parties during the marriage. Even though the husband's interest in the fund is, by its very nature, incapable of division in kind, the value of that interest was properly taken into account in a marital property division. In re Pope, 37 Colo. App. 237, 544 P.2d 639 (1975).

Because a 401(k) account is a defined contribution plan, the court must determine the marital interest; but unlike a defined benefit plan, it need not consider future appreciation. In re Casias, 962 P.2d 999 (Colo. App. 1998).

When one spouse causes title to be placed jointly with the other spouse, a gift is presumed, and the burden to show otherwise is upon the donor. In re Moncrief v. Moncrief, 36 Colo. App. 140, 535 P.2d 1137 (1975).

Transfer during the marriage by one spouse to both spouses is understood to evidence a transfer to the marital estate in the absence of appropriate evidence that the property was excluded from being marital property by a valid agreement of the parties. The exception from the definition of marital property for any property acquired by gift does not apply to such transfer. In re Stumpf, 932 P.2d 845 (Colo. App. 1996).

Gift by a third-party donor during the marriage that increases the value of a jointly titled asset is presumably a gift to the marriage. This presumption can only be rebutted by clear and convincing evidence. In re Krejci, 2013 COA 6, 297 P.3d 1035.

Where separation agreement has been set aside, property transferred in accordance with the agreement was not excluded from the division of the marital property. In re Bisque, 31 P.3d 175 (Colo. App. 2001).

Presumption of gift not overcome. Parties' explanation that title to their home was placed in joint tenancy so as to avoid inheritance taxes does not overcome the presumption that a gift occurred; it merely expresses a reason why the gift was made. In re Moncrief v. Moncrief, 36 Colo. App. 140, 535 P.2d 1137 (1975).

Resembles division of property by co-owners rather than conveyance. Transfer of property by husband to his former wife in fulfillment of a property settlement agreement entered into by the parties and approved by the court granting the divorce is a recognition of a "species of common ownership" of the marital estate by the wife resembling a division of property between co-owners and is not a transfer which resembles a conveyance by the husband for the release of an independent obligation owed by him to the wife. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975); In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).

Property acquired before legal separation deemed marital. Property acquired subsequent to a marriage but after the parties have separated without a decree of legal separation is not excepted from "marital property" by subsection (2). In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977); In re Huff, 834 P.2d 244 (Colo. 1992).

Where parties lived apart for over eleven years without a decree of legal separation or a valid agreement for exclusion of property, property acquired during that period was marital property. In re Huff, 834 P.2d 244 (Colo. 1992).

The presumption that property acquired by either spouse after marriage is marital property may be overcome by establishing that the property in question was acquired by a method listed in subsection (2). Assets not falling with the specific definition of separate property are deemed to be marital in nature subject to equitable division by the court. In re McCadam, 910 P.2d 98 (Colo. App. 1995); In re Seewald, 22 P.3d 580 (Colo. App. 2001).

Where a spouse takes title to property under circumstances that give rise to a resulting trust, that property has not been "acquired" for purposes of subsection (3), and, therefore, the trust property is not part of the marital estate. In re Martinez, 77 P.3d 827 (Colo. App. 2003).

Appreciation of separate property during the course of the marriage is considered marital property and such increase is subject to division under conditions set forth in this section. In re Fleet, 701 P.2d 1245 (Colo. App. 1985).

Appreciation accrued during period of reconciliation to be shared. The husband is entitled to an equitable share in the total amount of appreciation that accrued during a period of reconciliation after the wife became sole owner of the family home. In re Reeser, 635 P.2d 930 (Colo. App. 1981).

Where trial court failed to determine if there had been commingling of husband's premarital assets or if any marital appreciation in any of the trust assets had occurred and should have been included in the estate, property division could not be evaluated to determine whether it was inequitable. In re Seewald, 22 P.3d 580 (Colo. App. 2001).

Value of marital property sold by a spouse prior to filing of divorce action where spouse kept proceeds for himself is properly considered in dividing marital estate. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).

Partnership property divided according to spouse's contribution. A trial court's division of partnership property can be based upon the contribution made by each party to the purchase of the property. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).

In order for partnership property to be considered as other than marital property under subsection (2)(d), the parties must have expressly agreed that the partnership assets would not become marital property. Otherwise, the question is one of intent of the parties, to be found as a fact by the trial court. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).

Because husband's partnership interest was vested and mature and not subject to future contingencies, trial court erred when it valued that interest by projecting the value of the partnership to the date of husband's expected retirement rather than the date of the parties' legal separation. In re Nevarez, 170 P.3d 808 (Colo. App. 2007).

Court can award any rights party may have resulting from existence of corporate assets. Although the court cannot award corporate assets to individual parties in a dissolution proceeding, the court can award to a party any rights he may have because of the existence of corporate assets. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).

Where husband's rights to commissions arose prior to the date of hearing, they constituted "marital property" and were subject to division. In re Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977).

Money husband received in lieu of retirement benefits upon mandatory separation from Army constituted marital property subject to distribution under the terms of this section. In re Moore, 35 Colo. App. 280, 531 P.2d 995 (1975).

Residence acquired in anticipation of marriage is marital property. Where a family residence is selected and acquired within a few days of the parties' marriage in contemplation of that marriage, and the equity accumulated therein results from contributions by both parties, the court does not err in treating the residence and all equity obtained therein as marital property. In re Altman, 35 Colo. App. 183, 530 P.2d 1012 (1974).

Home purchased with wife's proceeds from sale of home owned prior to marriage is not. In view of evidence that the family home was purchased by the wife with the proceeds of the sale of a home which she owned prior to the marriage, the home was not "marital property" within the meaning of this statute. In re Armbeck, 33 Colo. App. 260, 518 P.2d 300 (1974).

Value of good will of spouse's business deemed marital property. In a division of marital property, the value of good will incident to husband's dental practice, which is an asset acquired during his marriage, must be considered as marital property. In re Nichols, 43 Colo. App. 383, 606 P.2d 1314 (1979).

Funds withdrawn by husband from joint bank account prior to wife's filing of petition for dissolution are "marital property" and should have been taken into account by trial court in making its property distribution, notwithstanding that the wife could not trace the funds after the withdrawal. In re Posinoff, 683 P.2d 377 (Colo. App. 1984).

Personal injury settlement offer, even if just for pain and suffering, is marital property if it arises from an accident which occurred during marriage. In re Fjeldheim, 676 P.2d 1234 (Colo. App. 1983).

Trial court erred in classifying a claim for personal injury protection (PIP) benefits as a marital asset where a claim had not been submitted to the insurance company as of the date of the hearing. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 25 P.3d 28 (Colo. 2001).

Accounts receivable constituted marital property. In re Bayer, 687 P.2d 537 (Colo. App. 1984).

Appreciation of premarital property which is realized during marriage is subject to division upon dissolution of marriage. In re Van Genderen, 720 P.2d 593 (Colo. App. 1985).

Reorganization under chapter 11 of bankruptcy code does not necessarily establish a business held premaritally by husband as worthless, so that entire sum received from sale of business's subsidiary stock and liquidation of business constituted marital property for purposes of division of property pursuant to dissolution. In re Van Genderen, 720 P.2d 593 (Colo. App. 1985).

Shares in mutual fund were "marital property" subject to equitable division, notwithstanding that funds used to purchase shares may have originally been husband's separate property, where evidence established that husband's intent in purchasing shares was to make a joint investment with wife and that he intended that shares should pass to wife upon his death. In re Meisner, 715 P.2d 1273 (Colo. App. 1985).

Full increase in value of parties' separate property was properly treated as marital property. In re Young, 682 P.2d 1233 (Colo. App. 1984).

Property acquired during first marriage not marital property. Absent evidence of a contrary intent, property acquired during a first marriage between the parties and before their remarriage may not be declared marital property. In re Stedman, 632 P.2d 1048 (Colo. App. 1981).

Spouse's interest in a vested but unmatured employer-supported pension plan is marital property to the extent such plan has been funded by either employee or employer contributions during the marriage and is, therefore, subject to equitable distribution in dissolution proceeding. In re Grubb, 745 P.2d 661 (Colo. 1987); In re Blake, 807 P.2d 1211 (Colo. App. 1990).

Marital property subject to division does not include property acquired after the dissolution; however, compensation that is deferred until after the dissolution, but fully earned during the marriage, is marital property. In re Vogt, 773 P.2d 631 (Colo. App. 1989); In re Anderson, 811 P.2d 419 (Colo. App. 1990); In re Miller, 888 P.2d 317 (Colo. App. 1994).

Before a trial court can make an equitable distribution of pension rights, it must first determine the present value of such rights. In re Gavito, 794 P.2d 1377 (Colo. App. 1990).

Husband's vested, employer-supported pension plan held to be "marital property". In re Nelson, 746 P.2d 1346 (Colo. 1987); In re Blake, 807 P.2d 1211 (Colo. App. 1990).

Husband's nonvested military pension held to be marital property. In re Beckman, 800 P.2d 1376 (Colo. App. 1990).

Trial court did not err in ruling that it had no authority to distribute the military retirement pay that husband received during the year that the parties were separated where there was no evidence presented concerning the amount received during that period nor any evidence that either party had dissipated any funds that had been received. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).

Under the federal Uniformed Services Former Spouses' Protection Act, the portion of a military retirement pension that constitutes veterans' disability retirement benefits may not be divided as marital property. In re Lodeski, 107 P.3d 1097 (Colo. App. 2004); In re Warkocz, 141 P.3d 926 (Colo. App. 2006).

In case where service member had attained twenty or more years of service and was eligible for a longevity retirement when placed on the TDRL, an amount equal to the amount of TDRL pay, as calculated based on husband's percentage of disability when he was placed on the TDRL, must be excluded from the marital property. Any amounts in excess of that amount may be divided as marital property. In re Poland, 264 P.3d 647 (Colo. App. 2011).

Colorado state courts are not prohibited from dividing a military pension consisting of nondisability and disability retirement benefits as long as the portion of nondisability benefits is large enough to satisfy the other party's fractional share of the division. In re Lodeski, 107 P.3d 1097 (Colo. App. 2004).

Military retirement benefits subject to distribution as marital property in dissolution of marriage cases are limited to disposable retired pay which, under federal law, excludes disability pay. The exclusion also applies to that portion of a veteran's retirement pay that is computed using the percentage of disability on the date the veteran is placed on the temporary disability retirement list (TDRL). In re Williamson, 205 P.3d 538 (Colo. App. 2009).

Because husband was not entitled to a longevity retirement at the time he was placed on the TDRL, no portion of his retirement benefits that is based upon his disability status is distributable to wife pursuant to the parties' separation agreement that required the parties to divide the husband's pension equally according to the time rule formula. In re Williamson, 205 P.3d 538 (Colo. App. 2009).

Husband's total pay based and computed on his disability is excluded from distribution to wife as marital property, not solely the husband's specific VA benefits. Further, because the husband was not entitled to any retirement benefits but for his disability benefits, it is immaterial that he waived a portion of his disability benefits to receive VA benefits. In re Williamson, 205 P.3d 538 (Colo. App. 2009).

The nature of husband's disability retirement benefits as marital or nonmarital does not depend on whether the benefits are subject to taxation. Benefits based and computed on husband's disability are nonmarital, even if taxable. In re Williamson, 205 P.3d 538 (Colo. App. 2009).

Trial court was not preempted by federal law from characterizing special separation benefits (SSB) received by former husband upon his voluntary discharge from the Air Force as marital property and from awarding a portion of them to wife. The SSB had more of the characteristics of a deferred compensation plan than a severance payment, and, therefore, constituted marital property subject to distribution. In re McElroy, 905 P.2d 1016 (Colo. App. 1995); In re Heupel, 936 P.2d 561 (Colo. 1997).

SSB benefit paid out after entry of the decree held not to be a "post-decree benefit". Hence, trial court's action in awarding a portion of the benefit to wife as marital property did not constitute a reopening of the decree, but rather an appropriate action to enforce the decree which incorporated the parties' separation agreement. In re Heupel, 936 P.2d 561 (Colo. 1997).

Spouse's election under federal law to receive indivisible veterans' disability benefits and waive divisible military retirement after entry of permanent orders does not divest trial court of jurisdiction in subsequent contempt action to enforce permanent orders. In re Lodeski, 107 P.3d 1097 (Colo. App. 2004); In re Warkocz, 141 P.3d 926 (Colo. App. 2006).

For public policy reasons, military spouse should not be allowed to unilaterally defeat the other spouse's interest in military retirement pay by voluntarily waiving retirement pay in order to receive disability pay. In re Warkocz, 141 P.3d 926 (Colo. App. 2006).

A specific dollar amount need not be set forth in the dissolution decree in order to give the nonmilitary spouse a vested interest in military spouse's retirement benefit. In re Warkocz, 141 P.3d 926 (Colo. App. 2006).

Husband's interest in contingency attorney fees which were earned during the marriage constitutes marital property subject to division. However, any portion of the fees earned after dissolution should be subject to the "reserve jurisdiction method" whereby the trial court retains jurisdiction to distribute payments when the contingent funds are received. In re Vogt, 773 P.2d 631 (Colo. App. 1989).

An unliquidated personal injury claim is marital property within the meaning of this section. The trial court should consider the actual effect that personal injury had on the marital estate in determining what the equitable share of the claim should be, and the court is required to make specific findings supporting the division of such claim. In re Fields, 779 P.2d 1371 (Colo. App. 1989), cert. denied, 781 P.2d 1040 (Colo. 1989).

Assets which consist of amounts received in settlement of husband's personal injury claim and wife's loss of consortium claim are marital property and should be distributed by the court after consideration of the needs and circumstances of the parties. In re Simon, 856 P.2d 47 (Colo. App. 1993).

Stock options owned by husband at the time of marriage but exercised during the marriage using marital funds are presumed to be marital property in the absence of a showing that husband used separate property, such as money he received from an inheritance, to exercise the options. In re Renier, 854 P.2d 1382 (Colo. App. 1993).

Husband's right to severance pay as a substitute for a loss of future wages does not constitute marital property. In re Holmes, 841 P.2d 388 (Colo. App. 1992).

To the extent an employee stock option is granted in consideration of past services, the option may constitute marital property when granted. On the other hand, an employee stock option granted in consideration of future services does not constitute marital property until the employee has performed those future services. In re Miller, 915 P.2d 1314 (Colo. 1996).

Restricted stock options constitute marital property in their entirety where they represent a form of deferred compensation because husband had already earned the right to receive those shares. That husband's full enjoyment of the benefit is conditioned on his remaining an employee affects the present value of the restricted stock shares, not their marital nature. In re Miller, 915 P.2d 1314 (Colo. 1996).

A trial court has discretion to apply the "time rule" formula to the division of stock options acquired during the marriage or to reserve jurisdiction to distribute the stock options if and when they are exercised. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 25 P.3d 28 (Colo. 2001).

Employee stock options constitute property only when the employee has a presently enforceable right to the options, regardless of whether the options are presently exercisable. In re Balanson, 25 P.3d 28 (Colo. 2001); In re Powell, 220 P.3d 952 (Colo. App. 2009).

Issue of "vesting" of employee stock options not determinative in ascertaining whether interest in employee stock options constitutes marital property. Rather, an employee stock option constitutes marital property for purposes of dissolution proceedings when an employee has an enforceable right to the options, regardless of whether the options are presently exercisable. In re Powell, 220 P.3d 952 (Colo. App. 2009).

Although wife's employment the year prior to issuance of the stock options may have been an eligibility requirement for the stock options, such employment did not, without more, confer any enforceable property right under the stock option plan. Wife had a mere expectancy and no property right in the stock options prior to the actual grant of the stock options after the date of the marriage. Therefore, no portion of the employee stock options were the wife's separate property, and wife did not "earn" any portion of the stock options prior to marriage. In re Powell, 220 P.3d 952 (Colo. App. 2009).

Public employees' retirement association (PERA) disability benefit prior to age 65 replaces future earnings and does not constitute marital property. In re Hansen, 62 P.3d 1066 (Colo. App. 2002).

When disabled employee reaches the age of 65, the portion of PERA benefits attributable to years of service before disability constitutes marital property, and the balance remains separate property. Regardless of employee's recovery or work status, the benefits, excluding the unearned service credit projected until age 65, are more akin to retirement benefits. In re Hansen, 62 P.3d 1066 (Colo. App. 2002).

Future disability income of husband based upon disability insurance purchased during marriage with marital funds is marital property. In re Simon, 856 P.2d 47 (Colo. App. 1993).

Trial court erred in setting apart to wife as her separate property the portions of investment traceable to income generated from trust. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).

Mechanism employed by the court for dividing the marital estate is a matter within the trial court's discretion. In re Dickey, 658 P.2d 276 (Colo. App. 1982).

Property order not terminable upon remarriage. Court order constituting an adjustment of property rights between a former husband and wife did not terminate upon remarriage of wife. Greer v. Greer, 32 Colo. App. 196, 510 P.2d 905 (1973).

Share of marital estate contingent on remaining alive. Court cannot make a portion of husband's share of the marital estate contingent on his remaining alive. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).

Home to spouse with child custody. Subsection (1)(c) makes it clear that it is desirable to award the family home to the spouse having custody of the children. In re Anderson, 37 Colo. App. 55, 541 P.2d 1274 (1975).

Subsection (3) provides that possession of title is not dispositive of the method of distribution of marital property. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).

Intent evidenced that property no longer in joint tenancy. An order for the sale of marital property and distribution of the proceeds evidences an intent that the property is no longer to be held in joint tenancy. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).

Order charging husband with selling property within one year effectively divided the marital property as of the date of the decree. In re Weaver, 39 Colo. App. 523, 571 P.2d 307 (1977).

Court ordered conveyance of separate property to wife or sale of both non-marital and marital property is violative of statute unless there is no other way to value and divide the property equitably. In re Sarvis, 695 P.2d 772 (Colo. App. 1984).

Where the husband's expenditures and labor enabled the wife to invest a considerable percentage of her income, they should be considered as contributions to the increase in their joint, and her several, property. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).

Promissory note between the husband and wife and the principal due thereunder, being property acquired in exchange for property acquired prior to the marriage, were correctly treated as wife's separate property. Accrued interest should be treated as marital property and the interest payable as a marital debt, while interest accruing after the date of the decree is the wife's separate property. In re McCadam, 910 P.2d 98 (Colo. App. 1995).

Unless promissory notes demonstrate an intent that interest be treated as separate property, the interest accruing during the marriage is a marital asset, and any interest due at the time of the dissolution of the marriage is a marital debt. In re Lewis, 66 P.3d 204 (Colo. App. 2003).

Trial court lacked jurisdiction over the securities owned by the parties' children. However, trial court may consider the securities as a factor in determining how to allocate between the parties any marital debt related to the children's education. In re Gorman, 36 P.3d 211 (Colo. App. 2001).

G. After-acquired Property.

A trial court, in ordering a division of property, cannot award to the divorced wife a share in property which might be acquired by the ex-husband after the order for a division of property has been made. Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).

Courts cannot divide property acquired after hearing or decree. Although courts must divide property on the basis of conditions existing at the date of the hearing or decree, they cannot consider the division of property which the parties may acquire afterwards. In re Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977).

A trial court cannot award to one spouse in a dissolution a share in property which might be acquired by the other spouse after the order for division of property has been made. In re Ward, 657 P.2d 979 (Colo. App. 1982).

Court can allow wife to use husband's separate property if husband waived or intentionally relinquished the right to sole ownership of that separate property. Court, however, could not convey any ownership attributes of that property to wife. In re Ikeler, 148 P.3d 347 (Colo. App. 2006), rev'd on other grounds, 161 P.3d 663 (Colo. 2007).

III. VALUATION OF PROPERTY.

Law reviews. For article, "Valuation of Businesses in Colorado Divorces", see 32 Colo. Law. 73 (June 2003). For article, "Business Valuations in Light of Thornhill", see 38 Colo. Law. 77 (August 2009).

Market value of real property in dispute is standard adopted by the general assembly. In re Lord, 626 P.2d 698 (Colo. App. 1980), appeal dismissed, 653 P.2d 385 (Colo. 1982).

Necessity of finding current value of all property. Generally, in making a division of property, the court must find the approximate current value of all property owned by the parties, as well as the value of separate property at the time of the marriage or at the time of acquisition, if after marriage. However, where the court determines the percentage ownership each party has in the marital property, and that percentage is not an issue on appeal, the failure to make such findings of current value is not necessarily erroneous. In re Weaver, 39 Colo. App. 523, 571 P.2d 307 (1977).

This section expressly requires that property be valued as of the date of the dissolution of the marriage or as of the date of the hearing on disposition of the property if such hearing precedes the date of dissolution. This provision is mandatory, and the only exception is that the marital property dissipated before dissolution of the marriage can be valued as of the date the property last existed. In re Hunt, 909 P.2d 525 (Colo. 1995); In re Finer, 920 P.2d 325 (Colo. App. 1996); In re Lockwood, 971 P.2d 264 (Colo. App. 1998).

The trial court did not have discretion to create, for equitable purposes, a fictitious date of dissolution for purposes of calculating the wife's share of the husband's military pension. In re Lockwood, 971 P.2d 264 (Colo. App. 1998).

Court's discretion in determining property valuation date. This section gives the trial court broad discretion in matters of property division, including determination of the property valuation date for division of marital property. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).

Court's valuation was sufficiently supported by evidence of parties' agreement as to value of lot, wife's response to husband's request for admission of current market value of property, and verified financial statements and proposed final orders submitted by both parties. In re Price, 727 P.2d 1073 (Colo. 1986).

Valuation on the date of dissolution based on an earlier agreement does not abuse court's discretion, where trial court was fully appraised of its duty to value the disputed lot as of the date of dissolution. In re Price, 727 P.2d 1073 (Colo. 1986).

Subsequent testimony to the valuation as of the date of dissolution which concerned the value of the disputed lot was not sufficient as a matter of law to overcome documentary evidence to the contrary. In re Price, 727 P.2d 1073 (Colo. 1986).

Stipulated values not binding. Where the trial court has determined that fairness and equity require that the division be an equal one, the stipulated values set 10 years before are neither binding nor relevant. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).

However, parties' agreement as to the value nine months before the date of dissolution was not outdated and irrelevant to court's determination of real estate's value. In re Price, 727 P.2d 1073 (Colo. 1986).

Trial court is not bound by partnership agreement in determining value of law practice. Where partnership agreement was designed to discourage partners from leaving firm and it appeared husband intended to stay with firm, court was free to use an alternate valuation method such as the excess earnings method. In re Huff, 834 P.2d 244 (Colo. 1992).

Because husband's partnership interest was vested and mature and not subject to future contingencies, trial court erred when it valued that interest by projecting the value of the partnership to the date of husband's expected retirement rather than the date of the parties' legal separation. In re Nevarez, 170 P.3d 308 (Colo. App. 2007).

Excess earnings method is a generally accepted method for determining the present value of a person's interest in a business, representing both tangible assets and goodwill. In re Huff, 834 P.2d 244 (Colo. 1992).

Excess earnings method did not result in "double dipping" by wife awarded maintenance as well as a portion of present value of husband's interest in law practice. In re Huff, 834 P.2d 244 (Colo. 1992).

Weight to be accorded to the valuation techniques of an expert is for the trial court's determination, depending upon the court's assessment of the reliability of the data in a particular case. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993); In re Antuna, 8 P.3d 589 (Colo. App. 2000).

Decision as to which valuation method to rely on is a factual determination to be made by the trial court. In re Huff, 834 P.2d 244 (Colo. 1992); In re Page, 70 P.3d 579 (Colo. App. 2003).

Marketability discount may be applied in determining value of husband's business where court determines that failure to do so would unfairly penalize husband for ownership of shares that cannot be readily sold or liquidated. The court must make a clear record of the reasons for applying a given discount rate. In re Thornhill, 200 P.3d 1083 (Colo. App. 2008), aff'd, 232 P.3d 782 (Colo. 2010).

It was within the trial court's discretion to accept wife's opinion of value as an owner of the marital residence, which opinion was partially based upon her extensive knowledge of the property, a heightened awareness of its value, and the valuations provided to her. In re Lewis, 66 P.3d 204 (Colo. App. 2003).

Goodwill is a property or asset which supplements the earning capacity of another asset, business, or a profession, and, therefore, is not the earning capacity itself. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).

The value of goodwill in an ongoing physical therapy practice is properly measured by arriving at a present value based upon past results and not by accounting for the postmarital efforts of the professional spouse. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).

Identification, valuation, and division of husband's "good will" as a portion of his physical therapy practice did not divide husband's future income. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).

Trial court erred in failing to credit wife with the value of her interest in a medical practice as a marital asset. In re Antuna, 8 P.3d 589 (Colo. App. 2000).

The conservation of the principal of an estate is, in itself, a valuable contribution which should be considered. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

When determining the present value of a vested interest in a trust that is subject to divestment based on a condition subsequent, a variety of circumstances should be considered, including actuarial information concerning the life expectancy of the life estate beneficiary and information concerning the future distributions to that beneficiary. In re Dale, 87 P.3d 219 (Colo. App. 2003).

In disposing of a vested but unmatured pension plan, the principles of fairness and equity must attend the valuation process, and the contingencies underlying the particular pension plan must be taken into account. In re McGinnis, 778 P.2d 282 (Colo. App. 1989).

Valuation of undisclosed assets. Once property has been divided pursuant to this section, such property becomes akin to separate property, and any increase in the valve of ownership interest therein should be considered when determining valuation. The failure to do so constitutes a confiscatory taking. In re Hiner, 710 P.2d 488 (Colo. 1985).

Increase in value of separate property after dissolution of marriage is necessarily separate. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).

The amount by which the present value of an asset of a spouse acquired before the marriage exceeds its value at the time of the marriage constitutes a marital asset. In re Burford, 950 P.2d 682 (Colo. App. 1997).

In carrying out the division of the marital estate, the dissolution court should first add to the marital estate the amount of increase during the course of the marriage, if any, in each asset that was owned by each party before marriage. If an asset suffered a decrease in value, it should be disregarded in calculating the overall value of a spouse's separate property. Then the court should consider whether the overall value of the spouse's entire separate property has increased or decreased for the purpose of dividing the marital estate. In re Burford, 950 P.2d 682 (Colo. App. 1997).

Although the assets paid off by husband may not have increased in fair market value, husband's use of marital funds to pay off his separate debts substantially increased his equity in his separate property and must be considered in the property division. It is not necessary that the spouse produce a marital "asset" capable of being divided when marital funds are used to pay off one spouse's premarital debts. It is sufficient that the spouse paying off or paying down the separate property received a benefit from the marital income such as increased equity in its own property. The court should consider the benefit as an economic circumstance. In re Burford, 26 P.3d 550 (Colo. App. 2001).

When debts have already been paid, they may be allocated in the property division through reimbursement. In re Burford, 26 P.3d 550 (Colo. App. 2001).

Debts incurred during the marriage but which are dissolution litigation costs should be allocated pursuant to 14-10-119. In re Burford, 26 P.3d 550 (Colo. App. 2001).

In the case of a pension plan inaccessible prior to the employee's distant retirement and terminable upon the employee's death, the risk of forfeiture is an important factor for the trial court to consider. In such a case it would be inequitable to require an immediate, lump-sum payment unless the present value included the risk of forfeiture as a factor. In re McGinnis, 778 P.2d 281 (Colo. App. 1989).

Vested but unmatured pension benefits are marital property not subject to inflexible rules of property valuation. Combination of deferred distribution and reserve jurisdiction valuation based on earliest possible retirement date for husband with full benefits proper where husband was not currently entitled to retirement benefits. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev'd in part on other grounds, 912 P.2d 545 (Colo. 1996).

No basis for reversal despite court error in valuing wife's vested but unmatured PERA retirement fund. Because PERA combines elements of defined benefit and defined contribution plans, it was error for the court to base the present value of the wife's PERA account purely upon her contributions as of the date of dissolution. A proper determination of present value required the application of a series of actuarial and investment assumptions relating to the wife's life expectancy and probable retirement age to the contractual or statutorily awarded benefit. However, because husband acquiesced in this error and failed to present any evidence at trial as to the value of wife's PERA pension and because he made no objection or argument challenging wife's valuation during the permanent orders hearing, there is no basis for reversal. In re Zappanti, 80 P.3d 889 (Colo. App. 2003).

Unvested, unmatured, noncontributory defined benefit pension plans are affected by different contingencies from those where plans are vested. In re Hunt, 909 P.2d 525 (Colo. 1995).

Three methods of distribution are at court's disposal in order to divide a pension plan upon dissolution: (1) Net present value; (2) deferred distribution; and (3) reserve jurisdiction. In re Hunt, 909 P.2d 525 (Colo. 1995).

"Time rule" formula, used to apportion pension benefits under the net present value and deferred distribution methods, described in In re Hunt, 909 P.2d 525 (Colo. 1995).

"Subtraction method" disapproved. Under the net present value method of distributing a pension plan, trial court's procedure of subtracting the present value of the husband's pension at the time of the marriage from the present value of the husband's pension at the time of the dissolution represented an abuse of discretion because, under the circumstances, this procedure grossly overstated the wife's share. In re James, 950 P.2d 624 (Colo. App. 1997).

Trial court had discretion to use subtraction method instead of the time-rule formula where the value of the trust was unrelated to any efforts taken by wife or husband, post-dissolution enhancements were irrelevant, and the wife failed to explain why the time-rule formula would produce a more accurate and fair apportionment of the trust interest. In re Dale, 87 P.3d 219 (Colo. App. 2003).

Trial court is not preempted from using the net present value method to distribute an unmatured military pension. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).

Trial court did not abuse its discretion in offsetting the net present values of the parties' military pensions and making a present distribution of the respective pensions, even though husband was retired from active duty while wife was not entitled to retire immediately and was still on active reserve. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).

Court did not err by distributing husband's railroad retirement benefits using the net present value method. In re Zappanti, 80 P.3d 889 (Colo. App. 2003).

However, trial court is required to apply the coverture fraction, the accepted means of calculating the marital share of a pension, by multiplying the present value of the pension by the number of years or months that benefits accumulated during the marriage and dividing by the total number of years or months that benefits accumulated. In re Zappanti, 80 P.3d 889 (Colo. App. 2003).

Court should have considered actuarial information concerning the life expectancy of husband's parents and relevant information concerning the likelihood that trustee would invade the trust corpus in the future in determining the net present value of a vested interest in a trust that is subject to divestment on a condition subsequent. In re Mohrlang, 85 P.3d 561 (Colo. App. 2003).

Post-divorce pension enhancements are not necessarily separate property. Although post-divorce earnings are undisputably separate property, pension enhancements are subject to application of the "time rule" formula and may be apportioned. In re Hunt, 909 P.2d 525 (Colo. 1995).

Economic fault may be considered by the trial court when it is dividing marital assets. In re Jorgenson, 143 P.3d 1169 (Colo. App. 2006).

"Economic fault" concept rejected as a factor in distribution of post-divorce pension enhancements. In re Hunt, 909 P.2d 525 (Colo. 1995).

Court is not required to value or divide the parties' respective retirement plans by any set method so long as the division is equitable. No error in awarding wife the entire contribution she had made to a Public Employee Retirement Account where the benefits from such contribution were significantly less than husband's retirement benefits. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev'd in part on other grounds, 912 P.2d 545 (Colo. 1996).

Court may retain jurisdiction over the distribution and valuation of stock options so that each party will "share in the risk of the fate of each of the options." In re Huston, 967 P.2d 181 (Colo. App. 1998).

Wife entitled to amount of husband's retirement funds, in the event of his death, only to extent of contributions made as of the date of dissolution. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev'd in part on other grounds, 912 P.2d 545 (Colo. 1996).

An obligation to guarantee the debt of another should not be considered in a property valuation when the chance of liability is so small as to be speculative. If there is a quantifiable likelihood of liability, the obligation should be valued at its face amount times the percentage chance of liability. In re Jorgenson, 143 P.3d 1169 (Colo. App. 2006).

Just as a court is required to allocate the contingent value of assets in pensions and trusts, it must similarly determine the value of a contingent marital debt. It may do so in one of two ways: (1) Determine, on the basis of testimony, the potential obligation, discounted to reflect the percentage of liability; or (2) otherwise divide the marital assets and debts, reserving jurisdiction to allocate the contingent marital debt until such time as the amount of such contingent debt has been determined. In re Jorgenson, 143 P.3d 1169 (Colo. App. 2006).

"Seller's costs". The trial court did not err in not deducting normal seller's costs from the value of the home when it purported to split between the parties the remaining equity in the home because "seller's costs" were speculative at best. Rhoades v. Rhoades, 188 Colo. 423, 535 P.2d 1122 (1975).

Husband not entitled to share in the future appreciation of the home because property is valued at the dissolution hearing or property division hearing. In re Wornell, 697 P.2d 812 (Colo. App. 1985).

Loss apportioned. The trial court may apportion a loss in value of separate property between the parties. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975).

Conclusion that parties did not contribute to enhancement of stock proper. Since investment patterns of persons in a situation similar to a particular married couple is not a matter of common knowledge, and therefore, comparisons of the investments in the wife's portfolio to those of some hypothetical average investor or a skilled investment counselor were merely speculation, it was proper for the trial court to conclude on the basis of such observations that neither party contributed to enhancement of the value of the stocks. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

Valuation of intangible assets of husband's business. In determining the intangible value of husband's business, the important consideration is whether husband's business has a value to him above and beyond the tangible assets. In re Martin, 707 P.2d 1035 (Colo. App. 1985); In re Huff, 834 P.2d 244 (Colo. 1992).

Spouse was not entitled to any increase in value of assets awarded to her from the date of the decree to the date the permanent orders were entered where the decree was entered prior to the date of the hearing on disposition of property. In re Graff, 902 P.2d 402 (Colo. App. 1994).

Specific determination of the nature and elements of goodwill may be required when court orders one party to execute a covenant not to compete for protection of the goodwill of a business awarded to the other party. In re Fischer, 834 P.2d 270 (Colo. App. 1992).

Central to the valuation of property is the determination whether the property will actually be sold, thereby resulting in a net equity. The court should consider husband's intentions as to whether he will sell the property at issue, and if the property is to be sold, the finding of net equity must comport with the evidence. In re Finer, 920 P.2d 325 (Colo. App. 1996).

In case of dissipation of property, trial court's alternative ruling that stock shares could be valued at the time when they were sold, if that value was higher than the value on the date of the decree, was proper. In re Huston, 967 P.2d 181 (Colo. App. 1998).

Trial court did not err in valuing a leased automobile at $13,500, where husband had recently prepaid $13,500 on the lease of the leased vehicle. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 25 P.3d 28 (Colo. 2001).

Subsection (5) makes no provision regarding the date on which interest should begin to accrue on any sum ordered to be paid as part of the division of marital property. In re Rodrick, 176 P.3d 806 (Colo. App. 2007).

Applied in In re Thompson, 706 P.2d 428 (Colo. App. 1985).

IV. SCOPE OF REVIEW.

Scope of review. Division of property in dissolution of marriage proceedings may only be overturned upon a finding that the trial court abused its discretion. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975); In re Sharp, 823 P.2d 1387 (Colo. App. 1991).

An appellate court will alter a division of property only if the trial court abuses its discretion. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).

One who has accepted benefits of judgment may not seek reversal of that judgment on appeal. In re Jones, 627 P.2d 248 (Colo. 1981).

Acceptance of the benefits of a judgment constitutes a waiver of appeal rights only if such action is inconsistent with the basis for the appeal. It is when the appeal, if successful, will again put into issue the right of the party to receive the benefits already accepted that a waiver of the right to appeal has been found. In re Antuna, 8 P.3d 589 (Colo. App. 2000).

Husband is not barred from appealing portion of the property division where he had previously received his share of the retirement funds pursuant to the parties' agreement before the hearing on permanent orders. In re Antuna, 8 P.3d 589 (Colo. App. 2000).

A trial court having reached its conclusions and entered its order and judgment on documentary evidence alone, the supreme court was as well qualified to determine the equities involved in a divorce action concerning a division of the property of the parties as was the trial court, and under such circumstances, presumptions in favor of the correctness of the order and judgment were not conclusive. Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095 (1956).

In an action for divorce, where the questions presented to the appellate court for review concern only the property rights of the parties, matters relating to the divorce were not considered. Wigton v. Wigton, 73 Colo. 337, 216 P. 1055 (1923).

Where the reporter's transcript of the testimony taken at a hearing on division of property in a divorce action was not included in the record on error, the supreme court assumed that the trial court had before it the entire situation of the parties, that the evidence before the court fully supported the determination made, and that all conflicting claims of the parties were properly resolved. Gier v. Gier, 139 Colo. 289, 339 P.2d 677 (1959).

Where a decree ordering the title to property to remain in joint tenancy and granting the rights of possession and income in the property to the wife was not challenged, and had long since become final, the supreme court could not review it. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).

Under the law of the case doctrine, conclusions of an appellate court on issues presented to it, as well as rulings logically necessary to sustain such conclusions, become the law of the case and generally must be followed in subsequent proceedings in that case. However, application of the law of the case by a trial court to its property division rulings entered prior to an appeal is a discretionary rule of practice. The trial court's original permanent orders lose any binding effect or precedential value when they are reversed on appeal. In re Burford, 26 P.3d 550 (Colo. App. 2001).

V. ENFORCEMENT.

Enforcement of property settlement. Ordering the payment of an amount due pursuant to the terms of the property settlement, together with interest, is an enforcement of the original decree and not a modification of the property settlement. In re Schutte, 721 P.2d 160 (Colo. App. 1986).