(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.