Divorces will usually cause all kinds of disputes over personal and real property. One couple’s fight over embryos after their divorce made its way all the way to the Colorado Supreme Court due to the novelty of the issue at hand and implications for the future.

Property rights related to embryos owned by the couple

At issue is a determination of who will get to maintain custody of the embryos and how they will be used after the divorce is finalized. The father of the embryos says that he wants them destroyed and he absolutely does not intend to ever have any more children, according to a statement from his lawyer. The mother of those same embryos claims that she would like to have more children at some time in the future, and her counsel has argued that this is a constitutionally protected right. 

There have already been two state lower courts who have addressed the situation. Both the trial court and a Colorado appeals court had sided with the father. The attorney for the man says that the court used a test to balance the rights of both parents. Much of this analysis had to do with the mother, and the fact that she already already has other children, can continue to do so through other means not including the embryos, and has the economic means to have more children without the embryos if necessary. 

The mother’s attorney argued that when her husband agreed to fertilize the eggs, he essentially already consented to their use by the couple to have more children at any time in the future. According to this reasoning, custody of the embryos should stay with the gestational parent. This argument also implies that either parent should have the right to use them as needed. At the time of the news report, the case was still waiting on a final decision from the state’s highest court.  

Dealing with property disputes during a divorce

Property division is frustrating to many couples in divorce court because the judge is given a lot of discretion as to where the property ultimately ends up. Judges merely have to decide that the property has been distributed “equitably,” which may not always seem fair because the standard is somewhat vague. This can lead to big surprises in court if one spouse has not thoroughly prepared for their divorce and property division with an experienced lawyer. Each party to the divorce should disclose all of their assets to their Colorado divorce lawyer and work on a litigation strategy before going to court. A ruling regarding property division can only be overturned due to an abuse of discretion. 

Speak with a divorce lawyer about your upcoming separation

There are family law attorneys who focus on assisting couples with their divorces. You can find a divorce lawyer anywhere in the state of Colorado on USAttorneys.com

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