The term “divorce” is no longer used in Colorado. This term has officially changed to “dissolution of marriage.” The term “alimony” has been changed in the State of Colorado to “maintenance.” Another change is the creation of “no fault dissolution.” This means that the courts will not consider the behavior of either party with regard to property division, support, and maintenance. The only exception is that if any behavior of the parent directly affects the well-being of any of the children their behavior can be considered with regard to “custody” and “visitation.” In updating the terminology of the process, Colorado has dispensed with the term “custody” and made it the more expansive “parental responsibility.” Visitation has become “parenting time.” No fault also means that there are no longer any grounds for dissolution except the “irretrievable breakdown of the marriage.” Usually, if one party wants a dissolution and the other party does not, the marriage will nevertheless probably be deemed irretrievably broken and the dissolution will be granted. Occasionally, the courts will grant a continuance for up to sixty (60) days so that the parties can obtain counseling on the question of whether the dissolution ought to be final.
A legal separation is essentially the same as a dissolution. The only difference is that the parties remain technically married to each other. All of the matters of custody, property division, support, etc. must be agreed upon or determined in court in order to obtain a decree of legal separation. If an action is commenced as a legal separation, it can be amended to be a dissolution of marriage. However, the time spent under the legal separation is not aggregated and the parties must still wait the statutory ninety day period before a decree of dissolution can issue. Generally, therefore, only a small percentage of people ask for a legal separation decree, for psychological reasons, religious problems, or because one spouse or another would not be able to obtain or maintain health insurance.
OUTLINE OF PROCEDURES
OUTLINE OF PROCEDURES
A dissolution of marriage or legal separation action is initiated by filing a petition along with certain other documents with the district court. There is a $184.00 filing fee. If the petition is filed by the other side, a response must be filed within twenty (20) days after being served with the petition along with a $70.00 filing fee. . The cost of service of these papers varies depending upon the difficulty involved. This cost is eliminated if the person to be served is willing to sign a written and notarized waiver and acceptance of service at the time the petition is delivered to him or her, either in person or by mail. This waiver and acceptance of service simply states the procedure, and does not waive any of that individual’s rights. The waiver merely acknowledges receipt of the petition and the summons. If personal service cannot be obtained, then service by publication in the local newspaper will be required.
Child support levels are generally established by a formula. The formula method was established to avoid large discrepancies between similar parents with similar incomes. The parties may deviate from the guidelines by mutual agreement. In order for the court to deviate, specific findings must be made.
Another recent development in the law is that on the face of the summons there is a mutual temporary restraining order restraining both parties from harassing or disturbing the peace of the other party, from disposing of or concealing or encumbering marital assets, and from removing the children from the State of Colorado. It is very difficult, however, to obtain any order that requires one spouse to leave the family residence if he or she objects to leaving. The only exception would be if the one spouse wishing to remain in the home is going to be taking care of the children and both parents remaining in the home would result in possible emotional or physical harm. A court hearing would be required on the issue of having one party excluded from the marital home.
The next matter on the agenda is to obtain temporary orders. Temporary orders result from the need to have issues resolved regarding the children, support, maintenance, use of marital assets and payment of marital debt between the date of separation and issuance of the decree. Temporary orders may be entered after a hearing with the judge, mediation, or through negotiation and stipulation. Both parties will need to prepare financial affidavits which each will share with the other. A temporary orders hearing must be held within thirty (30) days of the request for hearing.
Once the petition is served or an acceptance of service is signed, Colorado provides for a ninety (90) day waiting period before a decree may be obtained. This ninety (90) day period is a minimum waiting period and you are not automatically divorced when the ninety (90) days have passed. If all the issues of the case have been settled during that ninety (90) day period, and a separation agreement has been drafted and signed, then a decree can be obtained through a brief appearance either before the magistrate, or by submitting an affidavit of nonappearance (under certain conditions) together with the agreement, a proposed decree and a proposed support order to the judge for signature.
RESTRAINING ORDER ON SUMMONS
This memo is to advise you, pursuant to the summons in this action, that you and your spouse are restrained from transferring, encumbering, concealing, or in any way disposing of any marital property. “Marital property” should be read expansively and can include most any item of property held during the marriage or any asset. Of course money can still be spent on everyday necessities. The specifics of the temporary injunction are set forth in the Summons. This includes disposing of personal property, financial records, or in any way damaging the property of the other. The injunction also states that you and your spouse are enjoined from disturbing the peace of the other party and if applicable, from removing any of the minor children from this state without the consent of the other party or an Order of the court.
PARENTING TIME DISPUTES
When common sense prevails, the parents, based on their intimate knowledge of the family situation, are able to provide a schedule that allows children to thrive in each of their homes. The parenting time with the the children in a dissolution of marriage is an emotional and traumatic process not only on the parents but clearly on the children. In some cases, however, judicial intervention is necessary and the parties are required to argue the statutory factors and consider the use of a special advocate or legal representative. If the parents are unable to agree on a parental time schedule, a court may make provisions for parenting time that is in the best interests of the child, unless, after a hearing, parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. There are a number of factors that the court is required to consider in determining the best interests of the child. These factors would include: (1) The wishes of the child’s parents as to parenting time; (2) That where the child is sufficiently mature, the wish of the child; (3) Interactions and interrelationship with his or her parents, siblings, and any other person that may significantly affect his or her best interests. Other factors to consider are the child’s adjustment to home, school, and community as well as the mental and physical health of the individuals involved. There are several factors to consider as well as others that are set forth in the provisions of the Colorado Revised Statutes.
If a court or any party believes that the children need an attorney or the court needs additional information, the court may appoint individuals to serve as a representative for the children to further assist in a court proceeding. The court also may appoint a special advocate who may, but does not need to, be an attorney. A special advocate is charged with investigating, reporting, and, making recommendations on any issues that affect or may affect the best interests of the child. Both the legal representative and special advocate can be extremely helpful in resolving parenting time issues. The legal representative must be an attorney and represent the best interests of the children. The legal representation actively participates in all aspects of the case but may not be called as a witness. The special advocate is charged with investigating, reporting, and making recommendations on any issue that affect the best interests of the child.
A financial affidavit is required for any temporary orders hearing and is also required in order to obtain a dissolution decree, even if all of the issues are settled. This information is vital to determine the child support, maintenance, division of responsibility for debts, division of assets and other matters. It should be filed out with utmost care and completely. All financial records, including wage receipts, income tax returns for the past three years, insurance policy information, stocks, bonds, titles to vehicles, titles to property, and os forth, should be carefully gathered and brought to this office as soon as possible.
In dissolution actions with children under the age of 19, many local judges are now requiring the parents to attend a four hour “parenting class.” They may be done together or separately by the parties.
If an emergency arises in your case, the courts have devised a system where there are usually one or two judges available to hear your matter on an expedited basis. The court will make an initial ruling on whether an emergency truly exists. The standard will be the threat of immediate and substantial harm. Everyone arrives in court at the same time, and the judge determines the order of appearance for the cases. Often, a hearing can be scheduled one or two days prior to the emergency in question if it is a true emergency. Most likely, your emergency matter will be allotted no more than one-half hour. Again, it is very important to use your time wisefully and made concise, logical arguments based in the law.
As a potential client, it is extremely important that you feel that you can communicate with your attorney and that your attorney will be an advocated for you. In forming the attorney/client relationship, a written fee agreement will be between this office and you prior to commencing. This agreement provides for you to provide us with a retainer, and for billing based upon time spent, costs, and other factors. All time spent on your matter is charged, including court appearances, telephone conversations, preparing legal documents and pleadings, depositions, dictating letters, reviewing papers received from the opposing attorney, reviewing the financial data submitted or obtained, meeting in the office, talking to witnesses both in person and by telephone, and so forth. You will also be charged for photocopying, long distance telephone calls and expenses.
There are many services available to counsel you regarding your marital and parental issues before you commence a dissolution or while the dissolution is in progress.
While not everyone is in need of such counseling, many people involved in a dissolution of marriage or custody dispute benefit from talking with a professional. If you choose to seek counseling, you should look for a family counselor who will focus on the emotional issues you will be facing and on issues impacting you as a parent and your children. Remember that your children may be experiencing feelings of guilt, anger, depression and/or uncertainty with the future.
Marrital property is any property acquired by either spouse during the marriage, no matter whose name is on the title. Separate property is that property which was brought into the marriage and can be traced, or property acquired by gift or inheritance during the marriage.Colorado law does not require an equal division of property, but rather an equitable division. Often equitable is equated with equal and the division may be a 50/50 split of marital property, with the separate property set aside to each spouse. There are exceptions to this rule and those will be discussed with you. Property division is not based on fault or blame for either party.
Each case is different and has different factors and circumstances which call for the need to seek counsel for your specific facts. You should proceed only after receiving competent legal representation is obtained. This memorandum is general in nature and should not be relied upon for your specific case, needs or your facts.