Colorado court rules accrued leave may be considered marital property

The Supreme Court of Colorado recently ruled that accrued vacation and sick leave related to employment may by considered marital property to be included in the division of assets upon divorce. However, the court emphasized that a spouse with such accrued leave must have an "enforceable right" to receive a financial payment corresponding to the leave.

With respect to the specific divorce settlement being reviewed, the Supreme Court agreed with the trial court that accrued leave can - in principle - be included in marital property, but it affirmed the ruling of the appeals court on narrower grounds, finding that no such amount could be considered a divisible marital asset in this case.

Colorado Supreme Court rules that accrued leave is part of marital property if the spouse has an "enforceable right" to be paid for such leave

In the divorce case In re Marriage of Cardona and Castro, the former wife argued that the former husband's accrued vacation and sick leave should be considered part of the marital property subject to division as part of the divorce. According to the Supreme Court's case judgment, the ex-wife set the total value of the ex-husband's accrued leave at $23,232 and indicated that she should receive one-half of this amount, $11,616.

The trial court agreed with the former wife, but the court of appeals reversed the trial court decision (in a split decision). The case was then sent to the Colorado Supreme Court for a review of this one contentious issue.

The Supreme Court ultimately supported the broad legal reasoning of the trial court while affirming - on narrower grounds - the ruling of the appeals court. As a commentary on the case in the Colorado Bar Association's "Legal Connection" explains, the Supreme Court determined that "where a spouse has an enforceable right to be paid for accrued vacation or sick leave," the leave earned during the marriage is part of the marital property to be divided upon divorce.

If enforceable right to receive payment for accrued leave cannot be proven, amount cannot be included in division of marital property

However, having established the principle, the Supreme Court reviewed the actual evidence presented at the original trial and determined that there was insufficient data to conclude that there was an "enforceable right" in this case. The court cited the former husband's equivocal testimony, when questioned about the status of the accrued leave.

Since little other relevant evidence was provided at the trial, the Supreme Court ruled that, "because nothing in the record establishes that Husband had an enforceable right to be paid for his accrued but unused leave," it could not be included in the calculation of marital property for purposes of division.

Anyone dealing with issues related to the division of marital property as part of a divorce settlement should engage an experienced family law attorney. As the Colorado Supreme Court's ruling in this case demonstrates, the jurisprudence is constantly evolving. A lawyer with relevant expertise can review the unique facts of each case and provide both timely advice and effective representation.