## Facts

- Marta Doris Cardona (wife) and Jaime Felipe Castro (husband) jointly petitioned to dissolve their marriage in May 2007.
- In permanent orders entered in August 2009, the trial court treated husband’s accrued, unused vacation and sick leave as marital property and included it in the marital estate.
- Wife presented an exhibit estimating husband’s accrued leave at 452 hours valued at $51.40 per hour (over $23,000) and the court ordered husband to pay wife about one-half of that value (approximately $11,616).
- Evidence about the leave consisted primarily of a pay stub showing accrued hours and husband’s testimony that he believed he would be paid for the accrued leave if terminated.
- No employment agreement or employer policy establishing a legal entitlement to payment for accrued leave was introduced.

## Issues

1. Under Colorado’s Uniform Dissolution of Marriage Act, when can accrued vacation and sick leave earned during marriage be classified as marital property subject to division?
2. What proof is required to show an enforceable right to payment for accrued leave, and how must such leave be treated if its value cannot be reasonably determined at dissolution?
3. Whether the evidence in this case established an enforceable right to payment and a reasonably ascertainable value for husband’s accrued leave.

## Decision

- The Colorado Supreme Court affirmed the court of appeals’ reversal of the trial court’s property division, but rejected a categorical rule that accrued leave can never be marital property.
- The court held that accrued vacation or sick leave earned during marriage is marital property only when the employee spouse has an enforceable right to be paid for it under an employment agreement or policy.
- The court further held that if the value at dissolution can be reasonably ascertained, it must be equitably divided; if not, the right should be considered as an economic circumstance in dividing the marital estate.
- Applying that rule, the court concluded the trial court erred by including the asserted value of husband’s accrued leave because the record lacked competent evidence of an enforceable right to payment.

## Legal Principles

- Marital property includes employment-related benefits earned during the marriage when the benefit is vested and enforceable rather than a mere expectation.
- Accrued vacation and sick leave is marital property if the employee spouse has an enforceable right to be paid for the leave, as shown by an employment agreement or employer policy.
- If the accrued leave’s value at dissolution is reasonably ascertainable, it must be included in the marital estate and equitably divided.
- If the value cannot be reasonably ascertained at dissolution, the spouse’s right to the leave should be treated as an economic circumstance affecting equitable distribution, not as a divisible asset.
- A pay stub listing accrued hours and a spouse’s subjective belief about payout, without contractual or policy proof, is insufficient to establish an enforceable right to payment.

## Conclusion

Accrued vacation and sick leave may be marital property in Colorado dissolution cases only when the employee spouse has a legally enforceable right to payment and the benefit can be reasonably valued at dissolution; because that predicate right was not proven here, the trial court could not include the leave’s value in the marital estate.


In re Marriage of Cardona, 316 P.3d 626 (Colo. 2014)