AN OVERVIEW OF DIVORCE IN COLORADO
If you are contemplating divorce or have already initiated the process in Colorado, you're likely facing a flood of questions: Where should you file? How long until the divorce is finalized? What are the implications if you have children? What about division of assets or can I get spousal support? These concerns are common, and understanding the process can help alleviate some of the stress.
INITIATING A DIVORCE IN COLORADO: PRELIMINARY CONSIDERATIONS
Residency Requirements for Filing a Divorce in Colorado
In order for Colorado to establish subject-matter jurisdiction over your divorce, either you or your spouse must have been a resident of Colorado for at least 91 days - if neither you or your spouse has resided in Colorado for this required period of time prior to filing, then filing in Colorado will be premature until the elapse of said time. The initiating party submits to the jurisdiction of the Court in Colorado, while the opposing party (unless you file jointly) must be properly served so that the Court can assert its jurisdiction over them. Jurisdiction over your spouse can be established through personal service, a waiver of service, or service by publication after certain efforts. For Colorado to assert jurisdiction over child issues such as child custody and support, the child(ren) must have resided in Colorado for at least 181 days. This is a broad, and overly simplified summary of the Court’s ability to hear a divorce matter based upon parties’ and their children’s residency in the state. Jurisdiction over certain matters can become, in itself, a complex issue.
Where to File
Divorce petitions are filed in the district court located in the county in which the respondent party resides (so if you are filing, file in the county where your spouse resides; if you are the respondent spouse, you can move to have the venue changed to the county in which you reside), so long as the respondent party resides in Colorado. It the respondent party does not reside in the Colorado, the party filing the petition may file in the county in which they reside.
The Divorce Waiting Period
A divorce in Colorado can be granted no sooner than 91 days after the divorce petition is filed, or after service or waiver of service by your spouse. Typically, divorce proceedings take between 6 to 9 months, sometimes longer depending on the complexity of the case.
AUTOMATIC INJUNCTION
In Colorado, when a divorce petition is filed, an automatic temporary injunction goes into effect upon service of the summons on the other spouse. This injunction is designed to prevent either party from taking certain actions that might prejudice the rights of the other party or the children during the divorce proceedings. The key provisions of the automatic temporary injunction in Colorado divorces include:
Restricting Harassment or Molestation: Both parties are prohibited from molesting or disturbing the peace of the other or of any child involved in the case.
Removing Children: Neither spouse is permitted to remove any minor children of the marriage from the state without the consent of the other party or an order of the court, except for temporary periods.
Disposing of Property: The injunction prevents both parties from transferring, encumbering, concealing, or disposing of marital property without the consent of the other party or an order of the court, except in the usual course of business or for the necessities of life. Each party must account to the court for all such expenditures made after the injunction is in effect.
Canceling Insurance: The injunction prohibits either party from canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums, any insurance policy, including but not limited to health insurance, homeowners insurance, and automobile insurance, that provides coverage to either of the parties or the minor children or that names either of the parties as a beneficiary.
These restrictions are intended to maintain the status quo and protect the financial and physical well-being of the family during the divorce process. Violation of any of these provisions can result in legal penalties, including contempt of court. This automatic injunction remains in effect until it is modified or dissolved by the court at the conclusion of the divorce.
THE ROADMAP TO DIVORCE
1. Filing the Petition
The divorce process begins when one spouse files a Petition for Dissolution of Marriage with the district court. This petition sets out the basic information about the marriage and the grounds for divorce.
2. Service of Process
The petition and a summons must be served on the other spouse, which officially notifies them of the divorce action. The spouse has a certain period to respond to the petition, usually 21 days if they are in Colorado.
3. Mandatory Financial Disclosures
Colorado requires both parties to complete financial disclosures early in the divorce process (Colorado Rules of Civil Procedure, Rule 16.2(e)(2)). This includes providing detailed information about income, assets, debts, expenses, and investments. This is crucial for issues like property division, child support, and spousal maintenance.
4. Status Conference
Early in the case, the court will schedule a status conference to review the progress of the case, set deadlines, and discuss any immediate needs like temporary orders for support or parenting time.
5. Mediation
Before going to trial, parties are generally required to attempt to resolve their disputes through mediation. Mediation is a less formal, often more cost-effective process where a neutral third party helps the spouses negotiate an agreement. This can cover all aspects of the divorce, including property division, parenting responsibilities, and financial support.
6. Temporary Orders Hearing
If immediate decisions need to be made about custody, child support, spousal support, or use of marital assets, a temporary orders hearing may be necessary. These orders are not final and only last until the final divorce decree is issued.
7. Settlement or Trial
If the spouses reach an agreement through mediation or negotiation, they can submit a settlement agreement to the court, which, if acceptable, becomes part of the final divorce decree. If no agreement is reached, the case will go to trial, where a judge will make the final decisions.
8. Final Orders Hearing
If any issues remain before the court after negotiations, the Court will hold a final orders hearing; the court will allows hold a final orders hearing, even if all issues were resolved via agreement, if 1) the parties share children and if 2) either party is self-represented. During this hearing, the judge will review and approve the agreements or issue final orders based on the evidence presented at hearing. This results in the issuance of the Decree of Dissolution of Marriage, which officially ends the marriage.
9. Post-Decree Modifications
After the divorce, if circumstances change significantly, either party can request modifications to orders pertaining to child support, parenting time, or spousal maintenance. These modifications require showing a substantial and continuing change in circumstances.
Understanding the above steps and complying with the required procedures and deadlines is crucial in managing a divorce effectively. It's often beneficial to seek legal advice to navigate the complexities of divorce law in Colorado.
KEY CONSIDERATIONS
Property Division
Assets and debts accumulated during your marriage—such as homes, vehicles, retirement accounts, and debts—must be divided. However, not all property or debt held by one party is necessarily marital - you may have separate property worth protecting from division. When dividing marital assets and debts, Colorado courts must make findings and orders that effectuate an equitable division of marital property - equitably does not mean equally. Deciding whether to sell the marital home, who shall remain in the marital home, allocation of vehicles, or how to equitably divide accounts can be complex and contentious.
Parenting Time
Child issues tend to be the most contentious. In a divorce proceeding where children are involved, the Court is tasked with allocating both parenting time (child custody) and decision-making authority. How will it decide these issues? In most cases, the Court is directed by enumerated factors in statute that speak to the child's best interests. Where possible physical or emotional endangerment is alleged, the standard changes. Parenting time schedules can vary widely to accommodate the child’s best interests, considering the entire circumstances of the child and family. In cases where parents cannot agree upon a schedule, they must assert and support their position before the judge who will then decide the parenting time schedule.
Child Support
Child support is calculated pursuant to the child support guidelines provided in Colorado’s Revised Statutes section 14-10-115. Generally speaking, the child support guidelines take into account each parent's income, the number of overnights each parent will spend with the child(ren) over the course of one year, certain credits to either parent such as health insurance or child care costs, and more. A common misconception is that a 50/50 custody split negates the need for child support, which is not the case; financial obligations still depend on the parents' respective incomes and many other factors such as what income to include as gross monthly income, does either parent have children outside of the relationship at issue, etc. A common issue in deciding child support is establishing the parties’ respective incomes so to properly calculate a child support obligation. Keep in mind - child support is by statute a right of the child, not the receiving parent.
Spousal Maintenance (Alimony)
Maintenance, known in some states as alimony, may be agreed upon between the parties or ordered by the court based upon the duration of the marriage, each spouse's income, and other relevant factors. Colorado, being a no-fault state, does not consider marital misconduct when determining maintenance.
How Can an Attorney Help?
In divorce proceedings, the role of an attorney is multifaceted and crucial for effectively navigating the legal, financial, and emotional complexities of the process. Here's a brief overview of the key roles an HB Law will play in as your divorce advocates:
1. Legal Advisor
Attorneys provide expert legal advice tailored to the specific circumstances of the divorce. They help clients understand their rights and obligations under the law, the potential outcomes of their case, and the legal implications of various decisions.
2. Advocate
As advocates, attorneys represent their clients' interests in negotiations and court proceedings. They work to secure favorable outcomes on critical issues such as property division, child custody, spousal support, and child support.
3. Negotiator
Divorce often involves negotiation, whether in the context of mediation or informal settlement discussions. Attorneys negotiate on behalf of their clients to try to reach amicable agreements that avoid the need for a trial.
4. Draftsman
Attorneys prepare and file all required legal documents, ensuring they comply with the law and accurately reflect the client's wishes while proffering eloquent arguments that compel the relief sought. This includes drafting petitions, motions, agreements, and court orders.
5. Guide
Divorce can be a stressful and emotionally charged process. Attorneys help guide clients through the procedural and bureaucratic aspects of divorce, providing clarity and reassurance.
WHAT IF I DON’T GET AN ATTORNEY? Pro Se Parties ARE HELD TO THE SAME STANDARD AS ATTORNEYS
Individuals who choose to represent themselves in divorce proceedings, known as pro se litigants, are held to the same legal standards as those represented by attorneys. This means:
Compliance with Legal Standards: Pro se parties must follow the same rules of the court, adhere to the same legal procedures, and meet the same deadlines as attorneys.
Presentation of Case: They are expected to present their case and evidence in a manner consistent with legal standards, which can be challenging without formal legal training (did you know that every element requiring proof has standard which said proof must meet, and these standards vary across the different issues you may face in your case).
Understanding of Law: Pro se litigants must have a sufficient understanding of the law to effectively argue their case, which includes knowing what evidence is relevant and how to properly request relief from the court.
Because of these requirements, navigating a divorce as a pro se litigant can be particularly challenging. The complexity of legal issues, coupled with the high emotional stakes and potential long-term consequences of a divorce, often makes legal representation necessary so to secure a bright future for you and your children. Without the expertise of an attorney, pro se litigants may find themselves at a disadvantage, especially if the opposing party has legal representation.