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What Happens to Stored Pre-embryos in the Event of a Divorce in Colorado?

The attorneys at Knies, Helland and McPherson Law have litigated new and unique issues in the law, to include what happens when a divorcing couple has pre-embryos as part of their marital estate.

Under the developing law in Colorado, pre-embryos are marital property subject to division in a divorce, just like bank accounts, retirement accounts, and personal property.

If there is no agreement between the spouses on what to do with the pre-embryos in the event of a divorce, and/or there is no clear contract with the storage clinic about what happens in a divorce to the pre-embryos, then a judge must decide what happens.

In deciding “what happens,” the judge can give the pre-embryos to one spouse so that the spouse can give the pre-embryos to a spouse to dispose of them, give the pre-embryos to a spouse to implant pre-embryos, or give them to a spouse to donate to another person to implant.

In this event, the Colorado courts apply a test to determine what happens to the pre-embryos. That test looks at the following factors:

  • What the intended use of the pre-embryos is for the spouse that wants to preserve the pre-embryos – whether the spouse wants to implant or donate the pre-embryos,
  • What the demonstrated ability is of the spouse that wants to implant the pre-embryos to have a child through other means,
  • Why the parties originally pursued IVF,
  • What the hardship would be to the spouse that wants to dispose of the pre-embryos would be if not awarded the pre-embryos,
  • Whether there was any bad faith or an attempt to use the pre-embryos as leverage in divorce proceedings,
  • Any other factors relevant on a case-by-case basis

Even in applying this test, Colorado law has also determined that ordinarily, a party that does not want to procreate should prevail, particularly in cases where the spouse wants to donate the pre-embryos to another person.

Litigation on this issue is complex, and fortunately Knies, Helland and McPherson Law has experience in resolving these matters favorably for our clients. 

Contact us by calling (719) 626-8530 to schedule a consultation and meet with one of our attorneys today.

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