Former Bronco Jay Cutler & Kristin Cavallari.

Jay Cutler, Former Denver Bronco QB, Getting Divorced

Many long-time Colorado residents will remember Jay Cutler, who played quarterback for the Denver Broncos. Once upon a time, in the dark days after John Elway’s retirement and before the dawn of Peyton Manning, Cutler was one of the many potential quarterbacks seen by many as a great hope for the Broncos faithful. Things didn’t pan out football-wise, and now Cutler is getting divorced from wife Kristin Cavallari.

Unfortunately, celebrities seem to get divorced all the time (at least when there’s no moratorium on filing new divorce cases). Usually, such news goes into this divorce attorney’s right ear and promptly out the left. However, Cutler’s divorce has some interesting legal issues, and not just because he’s a former Denver Bronco.

Former Denver Bronco Jay Cutler DivorceFormer Denver Bronco Jay Cutler Divorce

In recent filings from the Tennessee family law court, Ms. Cavallari claims Cutler is blocking her access to funds she needs to buy a home for herself and their kids. Ms. Cavallari, it may be important to note, is herself a Reality TV star. Both parties probably are, or have been, multi-millionaires, and so one may wonder, “how can this be?”

Celebrity Prenuptial Agreement?

Wealthy spouses often have a prenuptial agreement. These agreements are generally an agreement to keep certain property apart from the marital estate, whether that property has been earned by one spouse before the marriage, or after the marriage. “Pre-nups” can be executed any time before or after a marriage (which would be a “post-nup”), and can cover a wide variety of topics. It appears that Cutler and his wife have one, and that it may include a provision for finances to go through a money manager.

Now, not knowing what exactly the finances of this couple are or the precise language of their prenuptial agreements, I’m not going to muse too much on how Kristin’s argument is likely to be received in court (The Tennessee Judge apparently has already ruled in Kristin’s favor and is allowing her to buy the house with marital funds, giving control of the the formerly marital home to Jay, and ordering joint custody) . However, this episode does offer some insight into how marriage and finances work.

Division of Marital Property at Divorce

It’s important to remember that marriage is both an emotional partnership, as well as a financial one. Despite being a former Denver Bronco, Jay Cutler apparently moved on to greener pastures (better than Colorado? Impossible), so the Cutler divorce is not happening in a Colorado courtroom. However, since the attorneys at Graham.law only practice Colorado family law, I’m going to have a quick look at the issues raised so far in the Cutler divorce from a Colorado perspective.

With limited exception, in Colorado everything you acquire during a marriage, is marital property, owned by both spouses. Furthermore, even resources owned prior to marriage may be converted to marital property by jointly titling the funds, and even if not jointly-titled, the appreciation on premarital funds during marriage is still marital.

In Colorado, upon divorce, the marital estate is divided more or less equally between the parties. In some states, marital fault can affect property division, but not here. A common practice in these parts is to draft a spreadsheet with all marital assets and debts, and then to apportion out the net values of each item to either side. These “marital spreadsheets” ensure to the parties, attorneys, and judges that the final asset allocation is as equal as possible. If real estate or other otherwise difficult to apportion assets exist, the party receiving will usually owe the other a cash equalization payment.

The Jay & Kristin Divorce

So let’s assume that the Cutlers do not have a prenuptial agreement. Without explicitly court authorization, could Kristin have gone out and bought a house for herself and the kids, so she doesn’t have to live with him while the divorce is pending? The answer to this question isn’t necessarily clear. Generally, she could, as long as she has enough money and the credit. She could conceivably use a marital bank account to this, even if Jay was the one primarily putting the money into that account.

Denver Bronco Jay Cutler's House Probably Fancier.Denver Bronco Jay Cutler's House Probably Fancier.
Not the Cutler Residence, But Still Fancy

However, in Colorado at least, when a divorce petition is filed, the parties are enjoined from certain behavior. Most notably, you cannot take the children out of state without the other party’s permission. Another injunction is one against encumbering the marital estate (C.R.S. 14-10-107(4)(b)(I)). This would include buying a new house, but paying rent, or making vehicles payments on a car you already own would be fine.

Assuming a house is purchased (as in this case), it is important to note that buying a house prior to divorce would make the house marital property and therefore subject to property division. While there’s no credible way Jay would get the house, he would receive other marital assets to offset the house awarded to Kristin.

Child Custody at Issue?

It is possible that the kerfuffle about the house is a strategic ploy regarding the kids. It has been reported that both parties are trying to gain sole custody of the children. The logic seems to be, if Kristin moves the children away from Jay, she’ll be the de facto primary parent, and on the other hand, if the former Denver Bronco can prevent her moving the children, he has a better argument for child custody. 

In Colorado, these kinds of tactics don’t often sway the Courts. As long as both parents live in the same area, and are otherwise good and attentive parents, split custody is nearly always ordered. If a parent moves out of the marital home during a divorce, that won’t usually affect the normal parenting analysis. Judges know that living with a soon-to-be ex isn’t something everyone can do, and they generally won’t penalize the parents for such a decision.

Finally both Jay & Kristin are apparently alleging misconduct by the other, starting arguments in front of the kids, adultery, and the like. It is unclear whether the motive is to gain a custody advantage, or simply win in the “court of public opinion”, but assuming Tennessee is a no-fault state like Colorado, such allegations would be largely irrelevant at trial (only those involving fitness as a parent may matter, not whether the person was a good husband or wife).

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