Divorce
Introduction to the process of divorce
First, I understand how overwhelmed you must feel right now. With very few exceptions, divorce is about as stressful and confusing as it gets. Don’t worry, it gets better. My intent for this website is to give you an entry level overview of the legal process for divorce in Colorado, and to explain that process to you as plainly and as simply as I can.
I strongly suggest that you begin talking to a counselor or therapist you can relate to. Divorce is tough. During the divorce, you’re going to make some mistakes, and a professional therapist can help prevent you from making a mess of your legal case. When you are emotionally strong, you will make better decisions, and you’ll save yourself time, money and frustration. If you have children, open and productive channels of communication with your spouse are critical to your children’s well-being. A therapist can help your approach on that too. If you can’t afford professional counseling, I encourage you to speak with a church counselor, or contact Larimer County for assistance with finding a no-cost or low-cost counseling service. Taking care of yourself is your priority. Let your attorney handle the legal matters.
II. What divorce is, and isn’t
In Colorado, the words "dissolution of marriage"
and "divorce" mean the same thing. The grounds
for divorce are simply that the marriage is
"irretrievably broken." So, if one spouse wants
a divorce, and the other spouse doesn’t, the
divorce will still be granted.
It’s important to know that Colorado is a "no-fault" state. What that means is you will probably not have the opportunity to explain to the Court all the reasons why you want a divorce, regardless of whether your spouse committed adultery, abandoned you, has a problem with alcohol or drugs, or whether your spouse was mentally and physically abusive to you. Fault is not considered by the Court when dividing property or determining support. If you have children, of course the Court will consider those things in the best interests of the children, but as a general rule, the Court is concerned with property and debt division, and dissolving the legal contract of your marriage.
III. How the divorce process works
As an initial concern, we need to talk about the
Colorado Court’s jurisdiction to decide your
case. If you have recently moved to Colorado,
the law requires that either you or your spouse
reside in Colorado for at least 90 days before
filing for divorce. In other words, it's not
necessary that the person filing for divorce
lives in Colorado. Colorado law only requires
that one of the parties live in Colorado for at
least 90 days.
Several meetings will probably need to occur between you and your attorney even before the case is filed with the Court. Your attorney will be gathering information about your assets, debts, and how to best go about caring for your children. The initial filing documents will then be prepared and filed with the Court. The Court opens a new case, and a complete copy of the documents will be served on the other party. Once filed, the automatic temporary restraining order will stop either spouse from disposing of any property before the decree is issued. Before a divorce can be granted, Colorado law requires a 90 day "cooling off" period before the Decree of Dissolution or divorce can be finalized.
If you are being physically abused or your children are in danger of being abused by your spouse, if your spouse doesn’t provide you reasonable support, or your spouse refuses to permit reasonable visitation with your children, the Court will allow you to have a temporary orders hearing to grant you relief by Court order. The Court can grant the relief concerning decision making for the children, child visitation, and child support, maintenance, and use of the home acquired during your marriage.
Generally, the document that controls your final divorce terms is called a Separation Agreement. The Separation Agreement is "incorporated" into the Decree of Dissolution and determines custody, division of assets, division of liabilities, child support, and alimony or maintenance. The Separation Agreement is critical, and should be carefully tailored to address all of the issues you may be facing. Understand that there is no "typical" Separation Agreement. Thus, most clients I encounter say that they want the "standard terms" for their agreement, but it is important that the Separation Agreement provides for the needs of both parties, and provides for an effective relationship concerning the children’s best interests while they are growing up. Once the Separation Agreement is finalized, there may be a brief Court hearing, but generally your divorce is complete with only administrative matters remaining.
If you are unable to resolve all issues by agreement in the Separation Agreement, the Court will most likely order a mediation meeting which can occur either with or without your attorneys. If the mediation is unsuccessful, a final orders or permanent orders hearing will be scheduled with the Court. At the final orders hearing, witnesses can be called to testify by either party. Additionally, during the divorce process, a temporary orders hearing may be scheduled to determine who pays which bills, who will remain in the marital home during the pendency of the divorce, and where the children are going to stay during the divorce process. Unless you and your spouse are agreeable in most respects, divorce litigation is complex, and beware of the advice from your friends and family members. Their advice could prove to be very expensive.
IV. How Much Will It Cost?
The filing fee paid to the District Court for a
divorce in Larimer County is $220. The Response
fee paid to the District Court is $106. If you
serve the Petition on your spouse, the Sheriff’s
Department will charge a fee, and usually a
mileage charge.
There is a broad range of fees charged by attorneys. While no lawyer has a "crystal ball" as to what the other spouse may disagree with you on which impacts the cost of your litigation, most will charge a retainer which will be deposited in the lawyer’s trust account, and then billed upon when work is performed. Most attorneys will also send you an additional billing statement when the time spent and work performed on the case exceeds the retainer. The final cost of your divorce is ultimately determined by the attitude and cooperation of you and your spouse.
V. Spousal Maintenance or Alimony
Alimony or spousal maintenance is the periodic
payment of money to one party. The Court may
order maintenance for the purpose of allowing
one of the parties the opportunity to seek
employment, update work skills, stay at home
with small children or even to attend school.
Maintenance is not automatic, and in some cases
it is not appropriate at all. Whether or not it
will be awarded depends on the parties'
financial conditions, their earning capacity,
and the circumstances of the marriage.
Typically, alimony or maintenance will end upon
remarriage or death, or upon a set time limit,
usually during what the Court determines as a
reasonable rehabilitative time period.
Colorado law allows for maintenance only if the Court finds that the spouse seeking alimony lacks sufficient property to provide for her reasonable needs, and is unable to support herself through appropriate employment or has custody of minor children whose circumstances make it appropriate that she not be required to seek employment outside the home. In order to determine the financial circumstances of both parties, Sworn Financial Statements will be required.
VI. Division Of Property and Pensions
Colorado law views all property acquired during
the marriage as "marital property" which will be
divided between the parties, regardless of who’s
name is on the title or deed. The property will
be divided "equitably" which doesn’t necessarily
mean "equally" in a divorce. Each party will
keep their separate property acquired before the
marriage, as well as any property they received
during the marriage through inheritance or gift.
However, the determination of "marital" and
"separate" property is often a complex and
disputed legal issue.
In Colorado, the Court can award the either spouse a share of retired pay which will become payable when the other spouse retires. In certain cases, an agreement can be reached on the present value of the pension and settlement can be accomplished. This eliminates the uncertainty of when the other spouse will retire and how much the retirement plan will be worth at that time, and allows both parties to move forward without getting bogged down in a valuation and timing dispute.
VII. Division Of Debts
The Colorado Court can order the division of
joint debts (bills, loans, or credit cards in
both parties’ names). However, the divorce
itself will not end liability for a joint debt,
even if one spouse is ordered to pay it. In
other words, your divorce is a settlement
between you and your spouse. It does not affect
your creditors' rights against you. If a
creditor seeks payment from you, you will have
to pay the debt, and then sue the other spouse
for breaching the Decree of Dissolution. You
should notify any joint creditors that you are
canceling those accounts, thus ending your
liability for future charges. However, you are
still liable for charges made while both of your
names were on the account.
VIII. Child Support
Colorado has a statutory guideline for the
calculation of child support payments. The
calculation is based on a formula which takes
into account the income of both parents, day
care and other children’s expenses, and the
number of overnights with each parent. Simple
right? Not necessarily. The calculations are
easy, but deciding what numbers to use is
harder. What if the wife can work but has chosen
not to? What if instead, the wife has
employment, but obtains a second job to make
ends meet? What figures should be used?
Generally, child support is paid through the age of emancipation, age 19, or graduation from high school, whichever comes later. College expense payments can be enforced in Colorado only if ordered by the Court. Unfortunately, having child support ordered and having it actually paid can be very different. If the paying spouse is employed, Colorado Courts can order the child support payments as a deduction from his or her paycheck as a forced payroll deduction.
IX. Modifying Court Orders
If you want a change to your divorce decree or
support order, you’ll first have to seek
approval of the Court. Even if you agree in
writing to change certain terms, that agreement
can be later ignored by the Court. Please
consult an attorney before seeking application
to modify Court orders. Concerning the
modification of child support, the legal basis
is a "substantial and continuing change of
circumstances." For instance, a change resulting
in more than a ten percent (10%) change in
support due creates a rebuttable presumption
that the existing child support amount must be
modified.
X. Child Custody and Visitation
In Colorado, it is not presumed that the mother
should be awarded custody of minor children. The
Court will look closely at each parent's
demonstrated ability and willingness to care for
the child. The Court will allow for custody
arrangements that are in the best interests of
the child. If you desire sole custody, you must
present a clear plan how the child will be cared
for.
In the vast majority of divorces the issue is really how large a role the non-custodial parent will play in the child's life. In Colorado, there are two types of custody, primary residential and legal custody. Primary residential custody deals with where the children live. Legal custody deals with decision making authority. It is common for the Court to award joint legal custody and primary residential custody to one of the parents. If both parties want primary residential custody, usually a Child and Family Investigator is employed, and great weight is given to the CFI’s determination.
If you are about to be involved in a custody dispute, get the kids in counseling. Can you imagine how hard the divorce is on them? Don't judge by appearances. You should also take the time to put down in writing why you think you should have primary residential custody and include a visitation plan. "Every other weekend" seldom works as both parents have an interest raising their children. If it doesn’t look very strong on paper, it won’t be very strong in Court either. You should also seek guidance from a counselor. The Court presumes that everyone going through a divorce needs counseling, and often your efforts in counseling provides the Court a good reason to rule in your favor. A counselor can provide you objective insight based on years of experience and specialized training. If a CFI is appointed in your case, your counseling will provide you excellent preparation for your interview(s) with them.
XI. Automatic Injunction
Colorado imposes an automatic injunction on both
parties the instant the divorce action is filed.
The injunction orders that: 1) children will not
be taken from the state for any reason without
agreement of the parties or Court order; 2)
neither spouse will disturb or harass the other;
3) property of the marriage will not be hidden,
destroyed, transferred, or borrowed without
consent, except in the usual course of business
or for the necessities of life; 4) health,
homeowner's, renter's, automobile or life
insurance policies will not be cancelled or
modified or allowed to lapse due to nonpayment
of premiums except with 14 days advance
notification and the written consent of the
other party or any order of the Court. The
automatic injunction can be enforced with jail
time or other civil penalties.