Yuma, CO asked in Divorce for Colorado

Q: I'm in a common law divorce in Colorado. I want to know if I'm entitled to my 1/2 of everything?

He says he will give me 1/2 of the retirement money. I was told he can roll my share into. IRA now and we won't pay penalties. Since he's retiring in couple months. He won't do it. Till. I sign divorce agreement. Says it can't be done till they get divorce decree.

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2 Lawyer Answers
Tristan Kenyon Schultz
Tristan Kenyon Schultz
Answered
  • Fort Collins, CO
  • Licensed in Colorado

A: Your potential share of the marital estate is based on many considerations. First, you need to establish that you do have a common law marriage (this requires court approval). If you are not legally married, your interest is limited to jointly held property. Second, Colorado does not automatically divide the marital estate at 50-50% because Colorado is a "common law" state. This means the division must be equitable, but equitable can mean more or less than 50%. Finally, the facts of your situation will greatly impact the listed factors (above) and other considerations.

For this reason you are highly encouraged to contact a lawyer to both evaluate you likely interest (if any) in the marital estate. The attorney can also review the offer and provide guidance.

Stephen J. Plog
Stephen J. Plog pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
Answered
  • Tampa, FL
  • Licensed in Colorado

A: If you are in a common law marriage, the same rules and laws tied into divorce in a traditional marriage would apply. Under the law, you are entitled to an equitable division of marital assets, not automatically 1/2. That being said, 1/2 is the norm in most cases. Dividing up are retirement account is something that is done after a decree of dissolution of marriage enters, not before. Thus, a court would not require him to transfer funds until after, nor would most plans allow such a transfer prematurely. Before you sign anything you should consult with a family law attorney, including for purposes of reviewing whatever documents he wants you to sign.

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