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Overview
of the Dissolution of Marriage Process in Colorado
In Colorado,
a divorce is actually called a Dissolution of Marriage. A dissolution
can be done in one of three ways:
1. by
default
2. by
contest
3. by
agreement (uncontested).
This will
provide an overview only for the dissolution by agreement, or the uncontested
divorce.
The process
begins when one spouse files a Summons and Petition (and other supporting
documents) with the Court requesting a Dissolution of Marriage.
Then that
spouse must "serve" the other spouse with the Summons and
Petition. There are many ways that a spouse may be served, and certainly
ways that two cooperative spouses can avoid any embarrassment that may
be created by serving a spouse in public.
The spouse
being served with the paperwork has 30 days after proper service to
file a Response. The spouse who filed the Summons and Petition is called
the Petitioner and the other spouse is called the Respondent.
The next
step may be to exchange financial information between the parties. Effective
January 1, 1993, spouses in a dissolution are required to exchange court
documents that disclose all information about their property and debts
and full details of their income and expenses. The court provides a
form to do this. It's called an Affidavit of Financial Affairs.
After financial
information is exchanged, both parties have information to discuss the
issues. Both spouses will need to decide how to divide whatever property
and bills have accumulated during the marriage and if there will be
spousal support and if so, how much for how long. If there are minor
children involved, spouses must also decide how they will share the
care and responsibility of raising the children and how much will be
paid for child support and other related expenses.
Parties
may need to agree on a few issues immediately before all issues have
been decided. An interim or temporary agreement may be signed to address
immediate needs. If the parties cannot reach a temporary agreement,
then a Motion for Temporary Orders can be filed when either party needs
temporary help regarding the allocation of parental responsibilities,
child support, use of the family home, cars, or other marital property.
If the
parties have negotiated and come to a final agreement, a marital settlement
agreement or Decree is prepared. The Decree and supporting documents
are filed with the court for the judge to sign and for the Decree to
be entered. The Decree becomes enforceable as soon as it is entered.
However, if the parties are unable to agree on an issue, either party
may request a Permanent Orders Hearing to have a Judge resolve the dispute
and enter a final Decree of Dissolution of Marriage.
Waiting
Period
In Colorado, there is a ninety-day waiting period before a Dissolution
of Marriage may be finalized. The ninety-day period begins at the time
one party is served with the Summons and Petition, or the date a Joint
Petition has been filed by the parties.
Residence
Requirements
Either you or your spouse must have lived in Colorado for at 90 days
just prior to filing the Petition.
Automatic
Restraining Orders
Some automatic restraining orders take effect in every case when the
Summons is served. Both spouses are ordered by the court not to:
- Remove
a child of the parties from the state without prior written permission
of the other spouse or order of the court;
- Transfer,
sell or encumber (borrow against) any property except in the usual
course of business or for necessities;
- Cancel,
transfer or borrow against any insurance (including life, health,
auto, disability) held for the benefit of either the other spouse
or a minor child.
These orders remain in effect until the date you get your Decree.
Grounds
for Dissolution
Colorado is a “no-fault” state. You do not need to actually
state a reason for wanting a divorce. Neither party has to prove wrongdoing
or fault of the other party. The only “grounds” or legal requirement
for a Dissolution of Marriage in Colorado is that the marriage is irretrievably
broken, and that is based on the opinion and testimony of only one of
the parties. Only one spouse needs to decide that he or she wants a
divorce.
Parental Responsibilities
(formerly “Custody” and “Visitation”)
Effective
February 1, 1999, the Colorado Legislature changed the law and the terminology
from the more commonly-understood terms of “custody” and “visitation”
to the more succinct and accurate term of “parental responsibilities.”
The rationale for this change and terminology, and the change in the
outlook toward these issues, is perhaps that the legislature believes
that parents do not have rights to their children, as with their property,
rather they have responsibilities to their children as parents, and
that both parents maintain responsibilities for the children, even when
there is a divorce. There are two types of parental responsibilities
that the parents have, each of which must be allocated during a Dissolution
-- "decision-making responsibilities" and "parenting
time."
Effective
February 1, 1999, Colorado law will no longer reference "custody"
of children. Instead, Courts will be charged with allocating "parental
responsibility." The new law applies to all cases filed after February
1, 1999, as well as any motions to modify previously entered orders
filed after that date.
The change
in the law is more than just a change in the terminology. With the new
law, Courts will be able to designate certain decision-making responsibilities
to either (or both) parents, while reserving other decisions to one
parent only. Prior to the change, a party designated with sole custody
had the right to make nearly all important decisions in a child's life,
while a party with joint custody had a claim to assist in making nearly
all important decisions.
The new
law also separates the decision on parenting time from the award of
decision- making responsibilities. It also requires the parents to file
a proposed parenting plan which addresses the issue of parenting time
(previously know as "visitation") and the allocation of decision-making
responsibilities. Courts will be permitted to order mediation to assist
parties in formulating parenting plans if the parties are unable to
agree.
The purpose
of the new statute is to recognize that both parents maintain responsibilities
for the children, even when there is a divorce. This is consistent with
the current movement in the area of family law which follows the axiom
that it is inappropriate to use the word "custody" in reference
to children. "Custody" is most closely connected to the ownership
of property, and children are not property.
Allocation
of decision-making responsibilities determines which parent will have
the authority to make major decisions for the minor child or children.
“Major decisions” are those that affect the health and well-being
of the child, such as education, health and medical, and religion. Every
day decisions are typically made by each parent when the child is spending
time with him or her. Either parent may have sole decision-making responsibilities
for the minor child or children, or the parents may share this authority.
When decision-making responsibilities are shared between the children,
the parents generally attempt to agree on major decisions. If agreement
cannot be reached, one parent may have the ultimate authority, or the
parents may resort to mediation, arbitration or court intervention to
help the parents make the major decision. Courts in Colorado determine
allocation of decision-making authority based on what is in the best
interests of the minor children. In making this decision, Courts will
consider many factors including the ability of the parents to cooperate,
the ability of each parent to put the child's needs first, and the history
of parenting by each parent.
The concept
of parenting time is more recognizable by the former terminology –
“visitation.” Parenting time involves the decision of with
which parent the child or children will primarily reside, and where
and when the other parent will have parenting time with the child or
children. Parenting time is also determined based on best interests
of the children, including what schedule is appropriate for children
of a particular age. The ultimate goal for any parenting time schedule
is to foster a meaningful bond between the child and each of the parents.
Where the
parties are unable to reach an agreement on the issues of parental responsibilities,
or a “parenting plan”, especially where the disagreement is
particularly acrimonious, the Court may appoint, or a party may request,
a "child advocates" or “special advocate”, or other
licensed mental health professionals, to evaluate and determine for
the Court what allocation of parental responsibilities would be in the
best interests of the child or children.
Supervised
Parenting Time
In cases
where the one parent has a history of abusing drugs or alcohol, has
been violent towards children or the spouse, or where allowing unsupervised
access to the children would endanger them, the court may order "Supervised
Parenting Time." Normally, the parenting time is only restricted
until such time as the parent meets certain restrictions such as several
months of drug/alcohol screening and counseling.
No
Visitation/No Access
In cases where one parent can show that to allow any access between
the other parent and the children would endanger or harm the children
the court may order no access of any kind. It is extremely rare for
the court to order that the other parent shall have no access whatsoever.
Removal
of the Children
One of the most difficult parental responsibilities issues arises when
one spouse decides to move away from the general geographic area. In
2001, the Colorado state legislature amended CRS 14-10-129 to specifically
addressed the situation where parent with him the children primarily
reside wants to move out of state taking the children with her or him.
Generally, the “residential custodial parent” will be allowed
to move with the children unless the “non-custodial parent”
can show that the negative consequences of the move outweigh the benefits
of keeping the child in state. Those factors the court is to take into
consideration are:
- educational
opportunities in each location;
- the
presence or absence of extended families in each location;
- the
feasibility of contact with and visitation by the non-custodial parent
should the move be permitted;
- general
quality of life considerations in each location; and
- the
general quality of the relationship of the children with the respective
parents in each location.
Grandparent
Rights
Grandparents can play an important role in the development of their
grandchildren. Unfortunately, the relationship between grandchildren
and their grandparents is sometimes overlooked in a divorce or other
custody-related proceeding. For example, a husband or wife who harbors
hostile feelings toward his or her spouse may cut-off communications
with his or her spouse's parents, and consequently cut off communications
between a grandchild and his grandparents. Under Colorado law, however,
grandparents may seek a court order granting them reasonable grandchild
visitation rights when there is or has been a child custody case.
CHILD
SUPPORT
Basic Concepts
The Colorado child support guideline is mandatory. Typically, a judge
will use a computer program to calculate the amount. The guideline amount
is presumed to be correct and judges can change that amount only if
they hear evidence and find that special circumstances exist. Both parties
are mutually and equally responsible for the support of their minor
children. The guideline takes into account each parent's actual income
and amount of time with the children. Parties may not agree to a child
support amount less than the guideline. For income tax purposes, child
support is not deductible as an expense by the person paying nor is
it included as income to the party receiving it.
Calculation
of Child Support
Child Support is generally determined by the Colorado Child Support
Guidelines. The Dissolution of Marriage process involves both parties
completing a Financial Affidavit that includes among other things: income
of both parents, necessary expenses for the child(ren) such as child-care,
health insurance costs, etc., and the party’s monthly living expenses.
The parties are also required to exchange pay stubs or payroll information
for the past three months of employment in order to verify their income,
as well as copies of federal and state income tax returns for the past
three years. The verified monthly income of the parties, and the necessary
expenses of the children are plugged into a spreadsheet to determine
the amount of child support to be paid by the parent(s). Finally, in
instances where the parents will each be spending at least 25% of the
“overnights” with the minor child(ren) per year, then there
is an adjustment made for the amount of time the children spend with
each parent.
Duration
Generally, a child is entitled to support until that child dies, marries,
becomes self-supporting or reaches age 19. If the parents agree in writing,
support can be ordered through college or training. Support for a disabled
minor or adult child who is unable to work can be extended for as long
as the disability lasts.
Wage
Assignment
A wage withholding or wage assignment for payment of child support may
be issued by the Court and signed by a Judge. It can then be served
on the employer of the party ordered to pay support. After the employer
receives the Notice of Wage Assignment, the employer is required to
deduct a specific amount and send it to the Child Support Registry or
in few cases to the payee spouse directly.
Child
Support Enforcement
A spouse who refuses or has failed to pay child support as ordered can
be sued, brought before a Judge on contempt of court, have wages attached,
have tax refunds intercepted, be required to post a security deposit,
or any of several remedies. Help with enforcement is available from
the Office of Child Support Enforcement, but you may wish to get your
own attorney. Good record keeping is extremely important for both parties
in case of future claim or disagreement. Keep them safe and keep them
until the obligation for support is long over. Be sure to register your
Decree in another state if the payor moves.
If you
are a the payor, get periodic acknowledgments that your child support
is paid and get a final acknowledgment and satisfaction of Decree when
your child support obligation ends. This will protect you as a payer
if years later, a claim is made for you to pay support and you no longer
have your records of payment.
MAINTENANCE
(SPOUSAL SUPPORT)
Spousal support orders are either temporary (while the Dissolution proceeding
is pernding) or permanent. Usually, if spousal support is an issue,
a judge will make a temporary order until there is an opportunity to
determine permanent spousal support. Unless otherwise agreed in writing,
spousal support automatically ends on remarriage of the supported spouse
or the death of either spouse.
During
the marriage, the parties often rely on the dual income of the parties,
or the non-economic contributions that one spouse adds to the marriage
while the other spouse is employed outside of the home and contributing
financially to the marriage. Because the economic lives of the parties
are so intertwined during the marriage, once an action is begun to dissolve
the marriage the Court must look at whether the parties, as individuals,
have the assets, income or earning ability necessary meet his or her
financial needs, or if additional maintenance is required from the other
spouse, taking into account the following factors:
(a) The
financial resources of the party seeking maintenance, including marital
property apportioned to him, and his ability to meet his needs independently,
including the extent to which a provision for support of a child living
with the party includes a sum for that party as custodian;
(b) The
time necessary to acquire sufficient education or training to enable
the party seeking maintenance to find appropriate employment and that
party's future earning capacity;
(c) The
standard of living established during the marriage;
(d) The
duration of the marriage;
(e) The
age and the physical and emotional condition of the spouse seeking
maintenance; and
(f) The
ability of the spouse from whom maintenance is sought to meet his
needs while meeting those of the spouse seeking maintenance.
Temporary
Maintenance By Formula
Beginning
on July 1, 2001, in any action for Dissolution of Marriage, or for Allocation
of Parental Responsibilities, where the combined annual gross income
of the parties is $75,000 or less, there is a rebuttable presumption
in favor of an award of temporary maintenance from the higher-earning
spouse to the lower-earning spouse equal to 40% of the higher-earning
spouse’s monthly gross income less 50% of the lesser-earning spouse’s
income. For example, if the husband’s monthly gross income is $4,000
and the wife’s monthly gross income is $2,000, then there will
be a rebuttable presumption in favor of an award of temporary monthly
maintenance in the amount of $600 (40% of $4,000, or $1,600 less 50%
of $2,000 or $1,000).
Tax Implications of Maintenance
Maintenance or spousal support, whether temporary or permanent and whether
in a lump sum or as a monthly payment, is tax deductible to the payer
and includable as unearned income by the recipient.
DIVISION OF PROPERTY AND DEBTS
Colorado is an “equitable property” state. Generally, property
acquired during the marriage is presumed to be “marital property,
meaning that it is owned by both spouses and must be divided “equitably”
upon dissolution of the marriage. The same is true for debts as well
as assets. There are exceptions to this. Generally, those items acquired
during marriage by gift or inheritance are the separate property of
the spouse receiving it. In addition, all property that was acquired
before marriage is presumed to be separate property as long as that
property has been kept separate and not commingled (mixed up) with the
marital property. Finally, any appreciation of the value of separate
property during the marriage may also be considered marital, and therefore
subject to an equitable division. Separate debts of the parties remain
separate debts upon dissolution.
Retirement
Accounts
Retirement accounts of the parties may be a large asset of the marriage.
Under the Employee Retirement Income Security Act of 1974 (ERISA) a
Qualified Domestic Relations Order "QDRO" may be ordered by
a state court that will divide an ERISA-qualified employee benefit plan
between the parties. A QDRO directs the plan to pay certain benefits
to the other party. It is also possible to evaluate the current value
of a pension plan and allocate that plan to one party and offset that
value with other assets allocated to the other party. It is relatively
easy to determine the value of a defined-contribution plan such as a
401(k) plan because the plan has a value of that account on any certain
date. However, when there is a defined-benefit plan, the parties should
obtain the value with assistance from an actuarial expert in valuing
the present value of the plan.
POST-DIVORCE MODIFICATIONS
After the Dissolution is final, the parties may wish to modify the final
Decree, and the terms of the parenting plan or child support obligations.
There may be reasons to do so based on a change of circumstances such
as change of income, remarriage, change of residence, change of scheduling
or any of a number of life changes. If the parties agree to the change,
an agreement can be written and entered with the court and it will modify
the provision of the Decree. It will then have the same force and effect
as the Decree. If the parties are unable to agree, then either party
may file a Motion to Modify one of the terms of the Decree with the
same Court that decided the original Dissolution of Marriage.
ANNULMENT/DECLARATION
OF INVALIDITY
To get a marriage annulled in the State of Colorado, you must have legal
grounds. Annulments are not based on time. Annulments are harder to
get than a divorce. Grounds for an Annulment include: That you or the
other party were still married to someone else when you were wed, you
or the other party were under age and did not get proper permission
to get married, you and the other party are blood relatives up to first
cousins, you or the other party were married with the intention to defraud
some other person, business, or government agency, you or the other
party married with the intent to lie about your past history of criminal
record, mental health history or other reasons as described by law,
or you or the other party were physically unable to consummate the marriage.
The petition and decree must state the legal basis for the annulment
and the circumstances.
LEGAL SEPARATION
You can file a Legal Separation in the State of Colorado if you want
to live a separate life from your spouse. A Legal Separation does not
dissolve the marriage but it will result in a separation and distribution
of the marital property and debts of the parties so you will no longer
be legally responsible for your spouse. A Legal Separation will also
decide the allocation of parental responsibilities for any children
of the marriage as well as child support issues. A Decree of Legal Separation
may be converted to a Decree of Dissolution of Marriage after six months
by the filing of a Motion by either party. A Legal Separation is NOT
a softer, kinder, gentler easier thing to do while waiting for an inevitable
Dissolution of Marriage. If you believe that divorce is inevitable,
we recommend that you do not file for Legal Separation, but wait until
you are ready to file for Dissolution, as filing for Legal Separation
may only increase the cost and time before you will be able to finalize
this chapter of your life and move on.
--
Lawrence
T. Zehfuss, Jr., Esq., LLC
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