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In re the Marriage of Zander - Marital Property Division

Marital Property
In re the Marriage of Zander
2019 COA 149 (Colo.App. 2019)

Colorado law is set forth in caselaw as well as in statute. Caselaw is the documentation of appellate court decisions involving disputes of fact or law over trial court decisions and often interprets statutes. The following case addresses the division of marital property and whether certain verbal agreements relating to property are enforceable.

In In re the Marriage of Zander, the parties entered into an oral agreement regarding the separation of marital property in the event of dissolution. 2019 COA 149 (Colo.App. 2019). The trial court recognized the verbal agreement. Although verbal agreements are generally enforceable if they can be proven, the husband appealed because the Uniform Marital Agreements Act sets forth that marital agreements must be in writing. He contended that the trial court erred when finding the verbal agreement to be valid and enforceable.

In Zander, the parties were married for 17 years and entered the marriage with separate retirement accounts and received inheritances during the marriage. The wife testified that the parties verbally agreed that their retirement accounts and inheritances would be separate property. She also presented other evidence, such as the formation of a revocable living trust that did not include the retirement accounts, and an email that the husband sent to his son.

The trial court determined that the oral agreement was valid and enforceable by relying primarily on basic contract principles which support the validity of verbal agreements. The practical difficulty in verbal agreement cases often lies in proving the verbal agreement, however here wife did prove the existence of a verbal agreement to the satisfaction of the court.

The husband contended that under the Colorado Marital Agreement Act (CMAA) only written and signed marital agreements are valid and enforceable and that the act superseded general contract principals. The Court of Appeals agreed. The Court noted that the primary goal in statutory interpretation is to find and give effect to legislative intent. A court first looks to the plain language of the statue, and if there is a conflict between statutory language, a court should adopt an interpretation that harmonizes both provisions.

Under Colorado Revised Statute Section 14-10-113(2)(d), the statutory presumption that property acquired during the marriage is marital may be overcome by establishing that property acquired during the marriage was excluded “by valid agreement of the parties.” However, the CMAA defines marital agreement as “an agreement between…present spouses, but only if signed by both parties prior to the filing of an action for dissolution of marriage or for legal separation.” Therefore the CMAA requires a writing. The Court of Appeals held that to harmonize the two statutes an agreement to exclude certain property acquired during the marriage must be a written agreement signed by both parties, and can not be a verbal agreement.

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