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Family Law FAQs
Separation and Divorce
Is a divorce something I can do myself, or should I have an attorney assist me?
Is there an alternative to divorce?
What is a separation agreement?
How is a separation agreement or a court order enforced?
Does Colorado recognize common law marriage?
How is a common law marriage dissolved?
Can I pay for legal representation in a domestic matter with a contingency fee?
Can the court award attorney’s fees from one divorcing spouse to the other?
What jurisdictional requirements must I meet for a Colorado court to grant a divorce?
How long will the dissolution process take?
Can I get a divorce if my spouse cannot be located or is another state?
Does it matter who is at fault when seeking a divorce in Colorado?
Once I file for divorce, what stops my spouse from selling or concealing our assets, cancelling insurance policies, or taking other adverse actions?
What type of financial documents must I provide during the dissolution process?
What is marital property?
How are assets divided when spouses divorce?
Does it matter where the property is located for a Colorado court to divide it?
How will debts created during the marriage be divided?
How is it determined if a spouse will receive maintenance or alimony?
Once a court makes orders regarding maintenance can these orders be modified?
Custody and Child Support
How will time with minor children be divided between the parents when they divorce?
Who will be able to make decisions regarding the child’s upbringing?
Can orders regarding parental responsibilities (parenting time and parental decision-making) be modified?
How is child support determined?
How are child support orders enforced?
Can child support orders be modified?
What if one of the parents wants to relocate outside of Colorado with the children?
If my ex-spouse and I were divorced in another state and now live in two different states, which state has jurisdiction to modify the parental responsibility provisions of the court order?
Military Couples
What special considerations apply to military couples?
Is a divorce something I can do myself, or should I have an attorney assist me?
While it is possible to obtain a divorce without an attorney, such assistance is advisable in many cases, especially those that involve property division, child support, parenting plans, or spousal maintenance. Divorce, which Colorado courts refer to as dissolution of marriage, is painful and often complex. The sometimes overwhelming impact of a divorce may make it difficult for a person to cope or make rational decisions. Unfortunately, the decisions one makes may have emotionally-taxing or costly consequences that will last long into the future.
An attorney can provide sound legal guidance and counsel throughout the emotionally-charged divorce process. For instance, an attorney may bring to the client’s attention matters that may otherwise go unresolved and promote sound decision-making at a time when some divorcing spouses may succumb to stress and exhaustion. Such involvement helps to assure an outcome that is beneficial and appropriate in the long-term, avoiding future conflict and costs.
Is there an alternative to divorce?
Colorado law allows spouses to become legally separated. A legal separation will divide property and assets, establish spousal maintenance if necessary, determine any child support obligations, and establish a parenting plan as though the spouses were divorcing. However, a separation is different from dissolution in that the spouses remain legally married.
This alternative is especially important for couples who are contemplating reconciliation and do not seek the finality of a divorce, are prohibited by their religion from divorcing, or are required to be married to establish or maintain a spouse’s eligibility for health insurance coverage, retirement pay, or military benefits. A legal separation can be converted to a divorce 6 months after a decree of legal separation is granted, or at a later time.
What is a separation agreement?
A separation agreement is a legal document that governs many aspects of the parties’ relationship once they become legally separated or divorced. Parties may use the separation agreement to resolve a variety of issues, such as parenting children, division of marital property, child support, maintenance, and tax considerations. All matters addressed in the separation agreement should be thoroughly examined before the document is signed and becomes legally binding. Entering into an agreement hastily, in order to put an end to a painful situation, may have grave consequences, often requiring future legal action.
Because entering into a separation agreement is voluntary, its terms may obligate a person to more than the law would require or cause a person to waive certain rights. This consideration may be especially important with respect to maintenance, child support, and division of certain assets such as retirement benefits, including military retired pay. It is critical to have an experience Colorado attorney draft or review the separation agreement.
How is a separation agreement or a court order enforced?
In many cases, the failure to obey a separation agreement or a court order may be addressed by simply identifying the party’s difficulty with a particular condition and designing a strategy for his or her compliance. However, noncompliance may also be dealt with through a contempt citation, especially where a mutually-agreeable resolution is not possible.
The party seeking a contempt citation must demonstrate that the other party has knowledge of the order, willfully violated the order, and has the ability to comply with the order. Contempt remedies can be punitive or remedial. In other words, the court may enter a new order that requires some type of action by the offending party or impose a jail sentence and/or a fine. An experienced Colorado attorney can help you file or defend a contempt action.
Does Colorado recognize common law marriage?
Colorado is among the minority of states that recognize common law marriage. However, there is no specific time requirement that transforms cohabitation into a common law marriage. Instead, a common law marriage requires the mutual consent of the parties to enter a marital relationship, along with their open assumption of a life as husband and wife. Consequently, Colorado courts will consider the couple’s reputation in the community as “Mr. and Mrs.” and actions indicative of their status as husband and wife, i.e. filing joint tax returns or wearing wedding rings.
There is a statutory age restriction that applies to common law marriages contracted after September 1, 2006. Under the law, both parties must be at least 18 years of age at the time of the common law marriage.
How is a common law marriage dissolved?
Once established, a common law marriage bestows the same rights and responsibilities on the spouses as traditional (statutory) marriage. If a couple is found to be common law married, they are treated in the same way as spouses with a statutory marriage. This means that while Colorado recognizes common law marriage, there is no such thing as a common law divorce. The dissolution procedure for a common law marriage is the same as for a statutory marriage. An experienced Colorado attorney can assist you in this process.
Can I pay for legal representation in a domestic matter with a contingency fee?
A contingency fee, common in personal injury cases, is rarely appropriate in the family law context. However, a family law attorney may accept a contingency fee with respect to post-decree proceedings where there is a liquidated (predetermined) amount of money at stake. Actions to collect maintenance or child support arrearages qualify.
Can the court award attorney’s fees from one divorcing spouse to the other?
Yes. A court may apportion the cost of attorney’s fees between the parties, requiring one to pay a reasonable amount of the other’s fees. The purpose of such an order is to place the parties on an equal financial footing with respect to the dissolution proceedings. Therefore, in deciding whether to award attorney’s fees, the court would consider the relative economic circumstances of the parties.
What jurisdictional requirements must I meet for a Colorado court to grant a divorce?
In order to grant a divorce, the court must have subject matter over the parties’ marriage and personal jurisdiction over the parties. In some case, a spouse will claim that this requirement has not been satisfied and will challenge the court’s authority to proceed with the divorce action. An experienced Colorado attorney can help you determine whether Colorado is the appropriate jurisdiction to grant the divorce.
First, at least one spouse is required to be domiciled in Colorado for at least ninety days prior to filing a petition for dissolution of marriage for a court to grant a divorce. “Domicile” is a matter of intent; hence, neither physical presence in the state nor lack thereof is determinative. What matters to the court is the spouse’s intent to reside in Colorado. Therefore, in order to decide someone’s domicile, the court may consider factors such as being registered to vote in Colorado, obtaining or retaining a Colorado driver’s license or vehicle license plates, owning real estate in the state, and making representations to third persons about being a permanent resident of Colorado.
Second, the other spouse must be provided adequate notice of the divorce. A spouse is provided adequate notice if he or she is personally served in Colorado with a summons and a copy of the petition for dissolution of marriage or waives service in writing. Out-of-state service may be sufficient depending on the person’s contacts with Colorado and his or her activities within the state. For instance, even if a spouse has left Colorado, the court may find that he or she maintains a matrimonial domicile in the state if the other spouse and children have not moved away. It is important to note that in cases where one of the spouses is not a Colorado resident, a Colorado court may lack authority to adjudicate all aspects of a dissolution proceeding.
How long will the dissolution process take?
The particular circumstances of each case will dictate the amount of time it will take to be for a divorce to be granted. However, Colorado has a minimum “cooling off” or waiting period. The court will not enter a decree and finalize the divorce until ninety days has passed since the filing of the petition for dissolution of marriage. In the interim, the parties may seek short-term solutions regarding child support, maintenance, and parenting time through stipulated agreements or having the court issue temporary orders.
Can I get a divorce if my spouse cannot be located or is another state?
Yes. A Colorado court may obtain jurisdiction over an absent spouse by serving that spouse through publication. Moreover, experienced investigators may help locate an absent spouse. An experienced Colorado attorney can assist you in this process.
As an additional consideration, if a spouse is in another state, that state may have jurisdiction over dissolving the marriage as well. If the out-of-state spouse meets his or her state’s requirements for granting a divorce and decides to file a petition, additional issues arise with respect to which jurisdiction may proceed with the action.
Does it matter who is at fault when seeking a divorce in Colorado?
No. Colorado is a “no-fault” state when it comes to dissolution of marriage. This means that the only basis necessary for a Colorado court to grant a divorce is the irretrievable breakdown of the marriage.
In cases of domestic violence, it may be appropriate for the abused spouse to obtain a Temporary Protection Order (also known as a Temporary Retraining Order). A TPO or TRO may later be made permanent or converted into a No Contact Order through the dissolution action. However, it is important to realize that the issuance of a restraining order may have serious consequences, especially with respect to parenting time considerations. An experienced Colorado attorney will be able to guide you through these issues.
Once I file for divorce, what stops my spouse from selling or concealing our assets, cancelling insurance policies, or taking other adverse actions?
Once service on the other party is accomplished, a temporary injunction will go into effect in order to preserve the status quo. The temporary injunction: (1) prevents either party from transferring, encumbering, or disposing marital property; (2) prevents either party form harassing or molesting the other party; (3) prevents either party from removing the minor children from the state without written permission of the other parent; and (4) prevents either party from cancelling, modifying, or withholding payment for insurance (health, home owners, renters, automobile, or life) without a 14-day advance notice and the written consent of the other party.
Additionally, the court will conduct a status conference within 40 days of filing the petition for dissolution. At the conference, the court will inquire whether the parties have any issues that need to be addressed. The court may then enter any orders necessary to prevent harm and set a hearing to establish temporary orders that will govern the parties’ conduct throughout the divorce proceedings. An experienced Colorado attorney can help you protect your assets.
What type of financial documents must I provide during the dissolution process?
Colorado law requires divorcing spouses to fully disclose their assets and property. Therefore, the dissolution process involves certain mandatory disclosures. Within 40 days of filing a petition for dissolution of marriage, both parties must exchange financial information regarding their assets, liabilities, income, and expenses. Part of these disclosures is a financial affidavit that summarizes all of this information.
Other relevant documentation may include tax returns, pay stubs, bank statements, real estate documents, and pension/retirement plan information. Additional discovery may become relevant later on in the proceedings and be requested by the other party and/or ordered by the court. An experienced Colorado attorney can help you determine what documents you need to provide and assist you in preparing the required disclosures.
What is marital property?
The classification of assets as either marital or separate property is an important step in property division. Marital property is everything acquired by the spouses subsequent to their marriage date, but before the entry of a decree of dissolution or legal separation. Marital property excludes property or assets owned prior to the marriage or acquired by gift or inheritance. There is a substantial body of law that assists in classifying assets. For instance, retirement benefits, but not social security, generally qualify as marital property and are subject to division.
Moreover, any appreciation in value of separate property during the marriage is considered marital property. Therefore, a spouse may be entitled to a portion of the increase in value or income that is produced by an asset that is individually owned by the other spouse. Furthermore, complications may arise if a spouse’s separate property becomes so commingled over time with marital assets that its identity as separate property is jeopardized. An experienced Colorado attorney can help you determine what constitutes marital property in your case.
How are assets divided when spouses divorce?
Divorcing or separating spouses should seriously consider how the property accumulated throughout the marriage will be divided. They should also take into account the impact that this decision will have on their finances. For instance, instead of one house payment, a divorced or separated couple will have to make two, which will dilute their resources. An experienced Colorado attorney can help you examine these issues and guide you through the division process.
The preferred approach to dividing assets is for the spouses to come to an amicable agreement. However, such a resolution is not always possible. The court may give the parties some additional prodding by, for instance, mandating that the parties undergo mediation. Despite mediation, spouses may still disagree about the value of their assets, their fair division, or even whether an asset forms a part of the marital property.
If disputes continue, contested issues are litigated before the court. The court will strive to reach a fair and equitable, but not necessarily equal, division of the marital property. In order to do so, the court will consider factors such as the age and health of the parties, the contribution of each spouse to the acquisition of the assets (working outside or in the home), dissipation or misuse of marital assets by either party, the duration of the marriage, the specific sources of income of the parties, the value of the parties’ separate property, and the standard of living of the parties.
Does it matter where the property is located for a Colorado court to divide it?
In cases involving a non-resident spouse, a Colorado court may still divide marital property located within the state. However, in order to divide marital property located outside of Colorado, the court needs to have personal jurisdiction over the absent party. For purposes of dividing property, personal jurisdiction over an out-of-state resident can be obtained through adequate notice of the dissolution proceedings, meaning personal service in Colorado or waiver of service.
Even if a Colorado court may not divide out-of-state marital property, it may still proceed on other matters. A case in which a court lacks the authority to decide all issues is sometimes referred to as a “divisible” divorce. Even through different state courts may handle the various aspects of the case, the Full Faith and Credit Clause of the United States Constitution requires that all states respect valid court orders entered in other jurisdictions.
How will debts created during the marriage be divided?
The goal of achieving a fair and equitable division of property applies also to the allocation of marital debt. A court will consider the debt associated with a particular asset when it divides marital property; therefore, whichever spouse is awarded the property will also receive the corresponding debt. However, a court may consider special circumstances that would render such a division unfair.
If the debt is not associated with a tangible asset, the court will take into account who created the debt, who is bound by the contract for its payment, who enjoyed the benefits of the transaction, and who has the ability to pay the debt. For instance, credit card debt belongs to this second category. Moreover, a court may also apportion between the parties any tax liabilities. An experienced Colorado attorney can help you navigate these considerations and obtain an equitable distribution of marital debt.
How is it determined if a spouse will receive maintenance or alimony?
Maintenance, also known as alimony or spousal support, offers ongoing support to a former spouse following the dissolution of marriage or a legal separation. An experienced Colorado attorney can help you determine whether a maintenance award is appropriate in your divorce.
Agreements between the parties regarding maintenance are subject to the court’s approval. If the parties cannot reach agreement on the issue, the court may order that maintenance be paid. However, before addressing the need for maintenance, the court is required to have divided the divorcing couple’s property.
A court may award maintenance only if a spouse lacks sufficient property to care for his or her reasonable needs and is unable to support him or herself through appropriate employment. In making the decision the court will take into account considerations such as the age, health, financial resources, employment prospects, and earning capacity of the party seeking maintenance, any child support awarded to the party seeking maintenance, along with the duration of the marriage, the standard of living established during the marriage, and the other party’s ability to make the payments. Marital misconduct of either party is not a factor. A maintenance obligation expires upon the death or remarriage of the recipient spouse, unless ordered otherwise.
Once a court makes orders regarding maintenance can these orders be modified?
Maintenance orders are subject to modification at a later time as long as certain conditions are met. An exception is the situation where the parties previously agreed in writing to limit or even preclude the modification of maintenance provisions. An experienced Colorado attorney can help you determine whether a modification of maintenance is appropriate in your case.
The party seeking modification must show a substantial and continuing change in circumstances that renders the initial award unfair. The frugality of the maintenance recipient does not necessarily constitute proper basis for modification; however, the court may consider the recipient’s total living expenses including savings for emergencies, retirement, and replacement of automobiles or appliances.
A different standard applies if the court previously reserved the right to review the maintenance provisions at a specific later time or upon the occurrence of an anticipated future contingency such as retirement or graduation. Under these circumstances, the order may be modified without the showing of unfairness. Instead, the same factors apply as in the original maintenance determination.
How will time with minor children be divided between the parents when they divorce?
Divorce creates new living arrangements for the divorcing spouses and their minor children, which forces the parents to divide the time they spend with the children. Instead of using the terms “custody” or “visitation,” Colorado law refers to “parenting time.”
While parenting time is first and foremost the child’s right, Colorado law recognizes the importance of both parents and encourages each parent’s frequent and continuous contact with the children. Each parent is entitled to parenting time unless it would physically or emotionally endanger the child.
Parenting time arrangements or parenting plans can be established by agreement of the parties. Where the parties cannot overcome their differences unassisted, they may pursue mediation. Mediation allows a neutral third party to facilitate negotiations in the hopes of reaching a mutually acceptable agreement.
If the parties submit a contested parenting time matter to the court, the judge will consider the child’s best interests in making parenting time determinations. The court, guided by a comprehensive set of rules, will take into account factors such as the desires of the parents and the child, the child’s integration into the community, the location of the parents, credible history of domestic abuse, the parents’ ability to place the child’s needs ahead of their own, and each parents’ ability to encourage love and affection for the other parent.
In order to establish a parenting plan, the court may seek the assistance of independent experts such as Child and Family Investigators (CFIs). Such experts may be appointed either by the court or at the agreement of the parties to render an opinion regarding the child’s best interests.
An experienced Colorado attorney can advise you on different parenting plans and help you determine which plan is the best for your divorce.
Who will be able to make decisions regarding the child’s upbringing?
Divorcing parents need to consider how to allocate the decision-making authority regarding their child’s upbringing. The parents have to determine how they will make decisions about the child’s healthcare, education, religious training, or extracurricular activities. An experienced Colorado attorney can help you formulate a decision-making arrangement that suits your situation.
Parental decision-making may be allocated in several ways: parents may share this responsibility, one parent may have exclusive control, or parents may elect to exercise control over specific aspects of child-rearing. All agreements between divorcing spouses regarding children are subject to court approval. If parental decision-making comes before the court as a contested issue, the judge will enter orders based on the child’s best interests.
Can orders regarding parental responsibilities (parenting time and parental decision-making) be modified?
Orders regarding decision-making authority can be modified if the court finds any of the following: (1) the parties agree to the modification; (2) a modification of parenting time creates a need for a different decision-making arrangement; (3) with the other parent’s consent, the child has been integrated into the home of the parent seeking modification; or (4) a change in decision-making practice warrants modification, or the current arrangement endangers the child.
In deciding the integration issue, the court will consider the totality of the circumstances. This means that the court will look at the frequency, duration, and quality of the child’s contact with each parent, the identity of the person making the decisions, and the child’s views regarding his or her attachment to each household.
A minor modification of parenting time may be made if the change would be in the child’s best interests. The best interest standard applies in cases where the parties share parental responsibilities equally and neither was awarded the majority of parenting time.
However, the standard becomes much higher if a parent seeks a major parenting time modification. A major modification is one that would change the primary residential parent, awarding majority parenting time to the parent who originally had only minority parenting time. A party requesting to become the primary residential parent over the other party’s objection must demonstrate that the current parenting time arrangement endangers the child’s health or emotional development.
Parents who moved to Colorado after the divorce need to note that the state that issued the original orders allocating parental responsibilities retains the authority to modify them. This means that a Colorado court has to establish jurisdiction over these matters before it may effect any changes. An experienced Colorado attorney can assist with registering an out-of-state decree in Colorado in order to proceed with the modification.
How is child support determined?
A child has the right to child support, and both parents have the duty to provide that support until emancipation. Colorado has established child support guidelines that determine the minimum amount of child support due in a given case. An experienced Colorado attorney can apply the guidelines to your situation and calculate the correct child support amount.
Child support and parenting time are separate issues. In other words, the resolution of one issue does not depend on the other. Rather, the formula that calculates the amount of child support takes into account the standard of living during the marriage, the age and needs of the child, gross income of both parents and child, and the amount of time the child spends overnight at each parent’s home. When calculating child support, the guidelines give credit for health insurance coverage and payment of daycare expenses.
The parties may agree on child support payments that exceed the guidelines; however, they may not agree to lower the payments. The parties may also, by agreement, extend child support past the age of emancipation. A child support calculation must be submitted for court approval.
Non-payment of child support is a punishable act. However, the courts also disapprove of attempts to stop the child support provider’s parenting time until payments resume. Therefore, parents must be careful to put the child’s best interests first and to shield the child from the effects of their strife.
How are child support orders enforced?
Past-due child support is referred to as child support arrears or arrearage. The legal system takes non-payment of child support very seriously. Being found in contempt of a child support order may even result in punitive sanctions, including a jail sentence. Moreover, child support arrearage accrues interest.
There are several remedies available for collecting child support arrearage. Income assignment or garnishment provides an effective tool for recovering past-due payments plus any accumulated interest. A less common and more extreme alternative is the attachment of non-exempt property belonging to the child support provider, which gives the court control of the property. Moreover, the court may order the posting of a bond or other security in order to ensure payment. An experienced Colorado attorney can help you access your options for enforcing a valid child support order.
Can child support orders be modified?
Child support provisions are also always subject to modification by the court. An experienced Colorado attorney can guide you through the modification process.
The party seeking child support modification must demonstrate a substantial and continuing change in circumstances or that the existing order does not address medical support issues such as health insurance or uninsured medical expenses. The alleged change in circumstances is substantial and continuing only if the application of child support guidelines, codified in Colorado Revised Statutes § 14-10-115, results in at least a 10% difference (either an increase or a decrease) in the monthly amount of child support owed.
Parents who moved to Colorado after the divorce need to note that the state that entered the original child support orders retains the authority to modify them. As a result, a Colorado court has to establish jurisdiction over this matter before it may effect any changes. An experienced attorney can assist with registering an out-of-state decree in Colorado in order to proceed with the modification.
What if one of the parents wants to relocate outside of Colorado with the children?
All relocation cases are decided based on the best interests of the child. There is neither a general presumption in favor of the child relocating with the primary residential parent nor one in favor of the child remaining in Colorado close to the other parent. Therefore, the court must consider the specific circumstances in each case and all of the relevant factors, among them. The burden is on both parents to demonstrate that it is in the child’s best interests to either stay in Colorado or relocate. An experienced Colorado attorney can help you file or defend a motion for relocation.
Additionally, a parent choosing to relocate outside the state of Colorado with a child must notify the other parent of the relocation as soon as is practical. The notice must include the destination of the proposed move, the reason for the relocation, and a proposed parenting plan that addresses the issues involved in long-distance parenting.
If my ex-spouse and I were divorced in another state and now live in two different states, which state has jurisdiction to modify the parental responsibility provisions of the court order?
A majority of states, including Colorado, have enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which governs jurisdiction over custody determinations. The child’s “home state” has priority in establishing jurisdiction. A home state is the state in which the child has lived since birth or for at least six consecutive months before initiation of the custody proceeding. If a child does not have a home state, the UCCJEA also provides other criteria for establishing jurisdiction, such as examining the significance of the child’s connections to each state. The UCCJEA also allows for temporary emergency jurisdiction if a child is abandoned or needs protection from abuse. An experienced Colorado attorney can apply the UCCJEA provisions to your case.
What special considerations apply to military couples?
Although military couples who divorce are subject to Colorado law, a host of special considerations arise by virtue of one spouse serving in the Armed Forces. An experienced Colorado attorney can determine what military issues are relevant in your case.
For instance, an experienced Colorado attorney will be well-versed in the laws that apply specifically to service members and military families. Among such legislation are the Servicemembers Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act.
Moreover, the military lifestyle and demands placed on service members and their families may have legal implications. For example, the need to make PCS moves may bring up jurisdictional issues. Military members are also subject to deployment with little, if any, notice. Therefore, parenting plans should take into account this exigency.
As another consideration, one of the most important benefits of military service is the retirement entitlement. Military retired pay is marital property and, as such, is subject to division. Division of military retired pay is complex and requires evaluation of the various compensation plans and qualified deductions for which the service member may be eligible, along with the applicable legislation and case law.
Military retired pay is an important benefit of service in the Armed Forces. In order to divide military retired pay, Colorado courts have devised a formula, known as Gallo. The Gallo formula takes into consideration the length of a spouse’s military service and the years of marriage that overlapped with the years of military service. If there is perfect overlap between the two, the other spouse is entitled to half of the military retired pay minus any qualified deductions.
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Anderson & Travis serves clients in the Colorado Springs area and throughout southern Colorado, including Manitou Springs, Monument, Palmer Lake, Castle Rock, Fountain, Security, Pueblo, Canon City, Falcon, Parker, Calhan, Peyton, Larkspur, Woodland Park, Cripple Creek, and Divide, as well as all cities within El Paso County, Teller County, Pueblo County, Freemont County, and Douglas County. We represent civilians as well as military personnel, including those at Fort Carson, Peterson Air Force Base, Cheyenne Mountain Air Station, Schriever Air Force Base, and the U.S. Air Force Academy (USAFA).
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