Property Division in Dissolution: Partnership Versus Needs Analysis
| Jurisdiction | Colorado,United States |
| Citation | Vol. 23 No. 9 Pg. 2115 |
| Pages | 2115 |
| Publication year | 1994 |
1994, September, Pg. 2115. Property Division in Dissolution: Partnership Versus Needs Analysis
While Colorado is not a community property state, more and more judges are dividing assets and debts equally in a dissolution setting, just as if this were a community property state. By comparing a dissolution of marriage to the dissolution of an economic partnership, many Colorado judges have almost created a de facto legal presumption that property of the divorcing parties should be divided equally. While there is no requirement that a trial court divide assets equally in order to obtain a fair result,(fn1) this practice of equal division is becoming the rule. Perhaps lawyers are being lulled into the acceptance of this de facto presumption.
This article examines the shortcomings inherent in dividing property equally between divorcing spouses and proposes a re-examination of the alternative theory of property division, which emphasizes meeting the needs of the economically disadvantaged spouse.
The phenomena of judicially mandated equality is not unique to Colorado, nor is this preference for an equal division confined to community property states or even states that actually have a statutory presumption favoring an equal division of property, such as Arkansas, North Carolina and Wisconsin. Even in other states that allow an equitable division---such as Connecticut, Montana and New York---the cases reveal, to varying degrees, a preference for equal division.(fn2)
In this author's opinion, attorneys as advocates should argue creatively to overcome this presumption in situations where the needs of the client are not adequately met. Also, courts should critically analyze this tendency, not only in view of the undeniable economic disparity that exists between men and women at the time of divorce, but in view of the trend for this disparity to increase dramatically after divorce.
Beginning in 1979, the U.S. Census Bureau began to document the disparities in both income and the standards of living of men and women after divorce. This trend seemed to coincide with the adoption of the Uniform Dissolution of Marriage Act ("UDMA"), which adopted a "no-fault" standard for divorce. (Colorado's version is embodied at CRS § 14-10-101 et seq.) The data showed that in 1979, the median per capita income of divorced women who had not remarried was $4,152, just over half of the $7,866 income of divorced men who had not remarried.(fn3) The March 1991 Current Population Survey for the U.S. Census Bureau shows divorced women of eighteen years of age or older with a median income of $15,639, and divorced men with a median income of $20,588.(fn4) One sociologist described this phenomena as the "feminization of poverty," and commented that the high divorce rate had vastly multiplied the number of women who were left alone to support themselves and their minor children.(fn5)
When the courts begin by dividing the parties' assets equally, this often denies divorced women the support and property they need in order to maintain their families. Many times, the courts appear to be relying on a woman's ability to get a job and support herself. However, considering women's documented disadvantages in the labor market, getting a job cannot be the only answer because it does not guarantee a woman a way out of poverty.(fn6) The woman must obtain a job that pays well. In the courtroom, expert testimony from vocational experts or economists is becoming more and more prevalent regarding this issue, but the client who needs these experts most is generally the least able to afford them.
The UDMA was not originally designed to presume an equal division of property. Rather, the statute mandates a division in such proportions as the court deems just.(fn7) In fact, the drafters...
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