Divorce Lawyers Fort Collins: Colorado Divorce Basics

Divorce Law/Divorce lawyers fort collins Basics; The legal dissolution of a marriage is known by several names, the most well-known of which are divorce and dissolution of marriage. Couples seeking a divorce must obtain one through a court judgment, following which they will be awarded a judicial decree declaring that the marriage is dissolved. After a divorce is legally finalized, both parties are free to remarry, subject to time constraints in some jurisdictions that vary.

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Divorce orders may address a variety of issues depending on the specific circumstances of the parties to the divorce, such as whether there are property to be divided and/or children for whom provisions must be made. As a result, when applicable, these orders may address issues such as property and bill division, alimony or spousal support, child custody, visitation, and child support, as well as any other pertinent issues deemed relevant and necessary by the court.

When a divorce action is filed, it can be brought by either party or both, and it can be contested or uncontested. When both spouses want to divorce and can agree on the relevant issues, they can obtain an uncontested divorce, which allows them to move through the court process much more easily and quickly than when there are unresolved issues. These are the most common types of divorces. These types of divorces are frequently obtained without the assistance of a lawyer.

However, a smaller group of married couples are unable or unwilling to reach an agreement regarding the dissolution of their marriage and the ensuing issues. These contested divorces take much longer, necessitate the hiring of legal counsel, and almost always necessitate judicial intervention to reach an agreement and obtain orders on the relevant issues.

Each state develops its own laws, codes, statutes, and rules for dealing with the dissolution of a marriage and other related issues. Each state’s common law also plays a role. As a result, there is no uniformity, and divorce laws, policies, and procedures frequently differ greatly from one state jurisdiction to the next.

Colorado Divorce Basics

Dissolution of Marriage is the legal term for divorce in Colorado.

Residency is required

In order to obtain a divorce in Colorado, one of the spouses must have resided in the state for at least 91 days prior to the start of the proceedings. Furthermore, if the case involves a minor child, the child must have been a resident of Colorado for at least 182 days.

Filing

A Petition for Dissolution of Marriage may be filed in district court by the Petitioner (filing party). The Respondent (non-filing party) has 21 days after service of the Petition to file a Response. If the Respondent was served out of state, he or she has 35 days to respond.

The Colorado Rules of Civil Procedure govern proceedings for dissolution of marriage, legal separation, or declaration of marriage invalidity.

A Decree for Dissolution of Marriage cannot be granted until 91 days have passed since the court acquired jurisdiction over the Respondent, either through service of the Summons and Petition on the Respondent, the Respondent joining in as a co-petitioner in the Petition, or the Respondent entering an appearance in any other way.

Marriage Dissolution by Affidavit

Final orders in a dissolution of marriage proceeding may be entered based on either or both parties’ affidavits if they meet the following criteria:

• There are no minor children from the marriage and the wife is not pregnant, or the spouses are both represented by counsel and have entered into a separation agreement outlining the allocation of parental responsibilities for the marriage’s children and the amount of child support to be paid by either spouse or both.
• The adverse party is served in accordance with Colorado civil procedure rules.
• There is no genuine disagreement about any material fact; and
• There is no marital property to divide, or the parties have reached an agreement to divide their marital property.

If one party wishes to submit the matter for entry of final orders on an affidavit, the submitting party must file an affidavit containing sworn testimony demonstrating the court’s jurisdiction as well as factual averments supporting the relief sought in the proceeding, as well as a copy of the proposed decree, a copy of any separation agreement proposed for adoption by the court, and any other supporting evidence. The filing of this type of affidavit does not reduce the statutory waiting period for the entry of a Decree of Dissolution.

The court is not required to enter a decree based on either or both parties’ affidavits, but it may, on its own motion, order a formal hearing to resolve any or all of the issues raised by the pleading.

Parental Training

In cases where the parent of a minor is a named party in a dissolution of marriage, legal separation proceeding, proceeding regarding the allocation of parenting time, or a post-decree proceeding in which the parent is subject to a protective order, a district court may order the parent to attend a program designed to provide education concerning the impact of separation and divorce on children.

The educational program will educate parents about the divorce process and its effects on adults and children, as well as teach parents co-parenting skills and strategies so that they can continue to parent their children cooperatively.

Any such educational program shall be administered and monitored by the implementing judicial district and funded by the participating parents in accordance with each parent’s ability to pay.

Name of Spouse

The issue of changing a spouse’s name after divorce is not specifically addressed by Colorado law. However, there is a section on the Petition for Dissolution of Marriage in which a party may request that his or her surname be restored to a previous name. Alternatively, after a divorce, a person can change his or her last name.

Legal Reasons for Divorce

A court may dissolve a marriage if the court determines that the marriage is irretrievably broken. While Colorado used to recognize certain grounds for divorce, it is now a “no-fault” state.

If both parties state under oath or affirmation that the marriage is irretrievably broken, or if one party states this and the other does not deny it, the court will presume this is the case, unless there is evidence to the contrary, and will make a finding that the marriage is irretrievably broken after a hearing.

If one of the parties denies under oath or affirmation that the marriage is irretrievably broken, the court must consider all relevant factors, including the circumstances that led to the filing of the petition and the prospect of reconciliation, and either make a finding or continue the matter for further hearing between 35 and 63 days later, or as soon as the hearing can be scheduled on the court’s calendar.

If the case is adjourned, the court may recommend that the parties seek counseling. The court must decide whether the marriage is irretrievably broken at the adjourned hearing.

Making a Marriage Null and Void

Although it is more commonly known as annulment in other states, Colorado has the authority to declare a marriage null and void. If marriage was entered into under the following circumstances, the court may enter a decree declaring it invalid.

If one party wishes to submit the matter for entry of final orders on an affidavit, the submitting party must file an affidavit containing sworn testimony demonstrating the court’s jurisdiction as well as factual averments supporting the relief sought in the proceeding, as well as a copy of the proposed decree, a copy of any separation agreement proposed for adoption by the court, and any other supporting evidence. The filing of this type of affidavit does not reduce the statutory waiting period for the entry of a Decree of Dissolution.

The court is not required to enter a decree based on either or both parties’ affidavits, but it may, on its own motion, order a formal hearing to resolve any or all of the issues raised by the pleading.

If both parties state under oath or affirmation that the marriage is irretrievably broken, or if one party states this and the other does not deny it, the court will presume this is the case, unless there is evidence to the contrary, and will make a finding that the marriage is irretrievably broken after a hearing.

If one of the parties denies under oath or affirmation that the marriage is irretrievably broken, the court must consider all relevant factors, including the circumstances that led to the filing of the petition and the prospect of reconciliation, and either make a finding or continue the matter for further hearing between 35 and 63 days later, or as soon as the hearing can be scheduled on the court’s calendar.

If the case is adjourned, the court may recommend that the parties seek counseling. The court must decide whether the marriage is irretrievably broken at the adjourned hearing.
Declaring a Marriage Invalid: Although annulment is more commonly used in other states, Colorado has the authority to declare a marriage invalid. If marriage was entered into under the following circumstances, the court may enter a decree declaring it invalid:

• Either party lacked the capacity to consent to the marriage at the time it was started, either due to mental incapacity or infirmity, or because they were under the influence of alcohol, drugs, or other incapacitating substances.
• Either party lacked the physical capacity to consummate the marriage through sexual intercourse, and the other party was unaware of the incapacity when the marriage was formed.
• Either party was under the legal drinking age and lacked the consent of his or her parent or guardian or judicial approval as required by law.
• Either party entered into the marriage in reliance on the other party’s fraudulent act or representation, which goes to the heart of the marriage.
• Whether or not the other party was aware of the use of duress, one or both parties entered into the marriage under duress imposed by the other party or a third party.
• As a joke or dare, one or both parties entered into the marriage.
• Marriage is illegal under the law for a variety of reasons, including the following:
• a. A marriage entered into prior to the dissolution of one of the parties’ previous marriage.
• b. A union of an ancestor and a descendant, or of a brother and a sister (half or whole).
• c. A marriage between an uncle and a niece or between an aunt and a nephew (half or whole), unless permitted by established customs of aboriginal cultures; and
• d. A marriage declared void by the law of the place where the marriage was contracted.

Any of the following individuals may seek a declaration of invalidity, which must be initiated within the time limits specified:

• The declaration may be sought by either party aggrieved by the circumstance or by the legal representative of the party lacking capacity, no later than six months after the Petitioner obtained knowledge of the condition, on the grounds that the party lacked capacity to marry, entered into the marriage due to fraud or duress, or as a joke or dare.
• The declaration may be sought by either party on the ground of impotence no later than one year after the Petitioner became aware of the impotence.
• On the basis of an underage party, the declaration may be sought by the underage party or the party’s parent or guardian if the action is filed within 24 months of the date the marriage was entered into.
• On the basis of bigamy, polygamy, or an incestuous marriage, the declaration may be sought by either party, by the appropriate state official, by the legal spouse, or by a child of either party prior to the death of either party, prior to a final settlement of either party’s estate, or prior to six months after an estate is closed.

Except in cases of bigamy, polygamy, or incestuous marriages, a declaration of invalidity cannot be sought after the death of either party to the marriage.

Marriages that are declared invalid must be declared so as of the date of the marriage. If the marriage was not contracted in Colorado, either party must have resided in Colorado for at least thirty days prior to the commencement of the action to obtain a Decree of Invalidity of Marriage.

Marriage is legal at the following ages:

The legal age of consent to marry is 18 years. However, if a minor is at least 16 years old, he or she may marry with the consent of both parents or guardians; or, if the parents are not living together, the consent of the parent who has legal custody or decision-making responsibility, or with whom the child is living; or judicial approval.

If the minor is under the age of 16, he or she may marry only with the consent of both parents or guardians; or, if the parents are not living together, with the consent of the parent who has legal custody or decision-making responsibility, or with whom the child is living; and judicial approval. In such cases, the court must consider the child’s best interests. The law expressly states that pregnancy does not establish that the marriage would be in the best interests of the child.

Division of Property

In connection with each Decree of Dissolution of Marriage, and to the extent of its jurisdiction, the court shall consider, approve, or allocate the division of property. Colorado is a state with a fair distribution of wealth.

The decree shall set apart to each spouse his or her property and divide the marital property in such proportions as it deems just after considering all relevant factors, including the following:

• Each spouse’s contribution to the acquisition of marital property, including a spouse’s contribution as a homemaker.
• The monetary value of the property allotted to each spouse.
• The economic circumstances of each spouse at the time the property division is to take effect, including the desirability of awarding the family home or the right to live there for reasonable periods of time to the spouse with whom any children reside the majority of the time; and.
• Any increases or decreases in the value of the spouse’s separate property during the marriage, as well as the depletion of the separate property for marital purposes.

Marital property is defined by statute as all property acquired by either spouse after the marriage, with the following exceptions:

• Gifted, bequeathed, devised, or inherited property
• Property acquired in exchange for other property acquired prior to marriage, or property acquired through gift, bequest, devise, or descent.
• Property acquired by a spouse following a legal separation decree; and
• Property excluded by a valid agreement between the parties.

All property acquired by either spouse after the marriage and prior to a decree of legal separation is presumed to be marital property, regardless of whether the title is held individually or by the spouses in some form of co-ownership, such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. This presumption can be overcome by demonstrating that the property was obtained using one of the methods described above.

Separate property that has increased in value since the date of the marriage is also considered marital property, subject to limitations. Furthermore, any gift from one spouse to the other is considered marital property.

When dividing marital assets, the court may consider economic fault rather than marital fault or misconduct. To achieve just results, maintenance and property settlement must be considered concurrently, and property division must come first.

The statutory criteria for dividing property are broad, and the trial court has broad discretion in dividing marital property to achieve a just result. However, many factors play a role in the decision, including the following:

• The estimated value of the estate to be divided.
• The financial circumstances of the parties.
• Each spouse’s ability to earn money.
• The method by which the property was obtained.
• The parties’ ages and health, as well as all relevant facts and circumstances

Support and maintenance

A spouse must petition the court for a maintenance or support award.

When a party requests temporary maintenance in a proceeding for dissolution of marriage or legal separation, the court can award a monthly amount of temporary maintenance, determine the term for payment of temporary maintenance, and consider relevant and additional factors, such as the payment of family expenses and debts, when making this calculation.

The district court may order one spouse to pay maintenance to the other in an amount and for a term determined by the court to be fair and equitable to the parties. Spousal misconduct is not taken into account in his calculations.

When a party seeks maintenance in an appropriate proceeding, the court will first make a written determination on the following:

• The total amount of gross income earned by each party.
• Each party receives marital property.
• Each party’s financial resources, including actual or potential income from separate or marital property.
• During the marriage, a reasonable financial need was established.

The court then considers the advisory guideline amount and term to determine the amount of maintenance and the term for which it should be paid. Which is based on the length of the marriage, the parties’ combined gross income, relevant factors, and whether the party seeking maintenance has met the requirement to receive this relief.

When the marriage has lasted at least three years and the parties’ combined annual adjusted income is less than $240,000, the advisory amount is equal to 40% of the higher income party’s monthly AGI minus 50% of the lower-income party’s monthly AGI, but the recipient should not receive more than 40% of the parties’ combined monthly AGI. Under the advisory guidelines, the assumed amount of support increases with the length of the marriage. A marriage that lasts 36 months, for example, receives a 31 percent award under the guidelines, whereas a marriage that lasts 240 months receives a 50 percent award.

Spousal support is calculated based on the length of the marriage. According to the guidelines, a marriage of 36 months results in an award of 11 months, whereas a marriage of 230 months results in an award of 115 months. If the marriage lasted longer than 20 years, the court can make an award for a specific number of years or an indefinite term, but any award should be for the same length of time as the term for a 20-year marriage.

When determining spousal support, the court takes the following factors into account.

• The requesting party’s financial resources, including actual or potential income from separate or marital property or any other source, as well as its ability to meet the spouse’s needs independently.
• The paying spouse’s financial resources, including actual or potential income from separate or marital property or any other source, as well as the paying spouse’s ability to meet his or her reasonable needs while paying maintenance.
• The way of life during the marriage.
• The division of marital property, including whether more property can be awarded to reduce or eliminate the need for maintenance.
• Both parties’ income, employment, and employability, as well as whether additional training or education could improve these.
• The loss of employment as a result of the needs of a child from the marriage or the parties’ circumstances.
• Whether one party has previously earned more or less than the income reflected in a permanent spousal support order.
• The duration and consistency of income from overtime or second jobs.
• The length of the marriage.
• The amount and duration of temporary maintenance.
• The parties’ ages and health, including uninsured or unreimbursed health-care expenses.
• Significant economic or noneconomic contributions to the marriage or to a party’s economic, educational, or occupational advancement
• Whether nominal maintenance should be awarded in order to preserve a future maintenance claim.
• Any other factor deemed relevant by the court.

Parental Leave and Child Support

In connection with every decree of dissolution of marriage, the court shall consider, approve, or allocate parental responsibilities with respect to any child of the marriage, as well as the support of any child of the marriage who is entitled to support, to the extent of its jurisdiction.

Parenting Time and Decision-Making Power:

Colorado lawmakers determined that it is in the best interests of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage. Parents are thus encouraged to share child-rearing rights and responsibilities, as well as to foster love, affection, and contact between children and parents.

The court shall allocate parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child, with primary consideration given to the child’s physical, mental, and emotional conditions and needs.

The court must consider all relevant factors when determining the best interests of the child for the purposes of parenting time, including the following:

• The child’s parents’ wishes regarding parenting time.
• The child’s wishes, if he or she is mature enough to express reasoned and independent preferences regarding the parenting time schedule.
• The child’s interaction and interrelationship with his or her parents, siblings, and anyone else who may have a significant impact on the child’s best interests.
• The adjustment of the child to his or her home, school, and community.
• Although a disability alone shall not be used to deny or restrict parenting time, the mental and physical health of all individuals involved shall be considered.
• The ability of the parties to encourage the child and the other party to share love, affection, and contact.
• Whether the parties’ previous pattern of involvement with the child reflects a system of values, time commitment, and mutual support.
• The parties’ physical proximity to one another as it relates to the practical consideration of parenting time.
• The ability of each party to prioritize the needs of the child over his or her own.

In determining decision-making responsibility, the court may allocate decision-making responsibility for each issue affecting the child mutually between both parties or individually to one or the other party or a combination of both.

When determining the best interests of the child for the purpose of allocating decision-making responsibilities, the court must consider the same factors as when determining parenting time, as well as the following additional relevant factors:

• Credible evidence of the parties’ ability to collaborate and make decisions jointly.
• Whether the parties’ previous pattern of involvement demonstrates an ability to make joint decisions that provide a positive and nourishing relationship with the child; and
• Whether or not joint decision-making would result in more contact between the child and each party.

If the court finds that one of the parties was a perpetrator of child abuse or neglect, domestic violence, or sexual assault that resulted in the conception of the child, the court’s primary concern must be the safety and well-being of the child and the abused party, and this must be taken into account when determining a parenting time schedule. It can also implement additional safeguards such as:

• Creating court orders that limit the parties’ contact.
• Exchanging the child in a secure environment.
• Parenting supervision has been ordered.
• Limiting overnight visits
• Ordering the abusive party to abstain from alcohol or drugs during parenting time or for 24 hours beforehand.
• Keeping the address of the child or other party private.
• Obtaining evaluations or treatment for domestic violence.

The court shall not presume that any person is better able to serve the child’s best interests because of his or her gender.

If one party is absent or leaves home because the other party has committed or threatened to commit domestic violence, that absence or leaving will not be considered when determining the best interests of the child.

In the event of a medical emergency, either party may obtain necessary medical treatment for the minor child or children without violating the order allocating decision-making responsibility or being in contempt of court.

To put an order allocating parental responsibilities into effect, both parties must submit a parenting plan for the court’s approval, which must address both parenting time and decision-making responsibilities. If no parenting plan is submitted or if the court does not approve a submitted parenting plan, the court shall formulate a parenting plan on its own motion that addresses parenting time and decision-making responsibilities.

Child Support:

In a proceeding for dissolution of marriage or legal separation, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount determined to be reasonable under the circumstances for a time period that occurred after the date of the parties’ physical separation or the filing of the petition or service upon the Respondent, whichever date is latest, and

The court must consider all relevant factors when determining the amount of support, including the following:

• The child’s financial resources.
• The custodial parent’s financial resources.
• The standard of living the child would have had if the marriage had not been annulled.
• The child’s physical and emotional well-being, as well as his or her educational requirements; and
• The non-custodial parent’s financial resources and needs.

The Income Shares Model serves as the foundation for the child support guidelines and schedule of basic child support obligations, which serve the following purposes:

• To establish an adequate standard of support for children as state policy, subject to parental ability to pay.
• To make awards more equitable by ensuring that people in similar situations are treated consistently; and
• To improve the efficiency of the court process by encouraging settlements and providing guidance to courts and parties in determining award levels.

The child support guidelines and basic child support obligations schedule do the following:

• Calculate child support based on the AGI of the parents that would have been allocated to the child if the parents and children were living in an intact household.
• Adjust child support based on the children’s needs for exceptional medical expenses and work-related childcare costs; and
• Determine the amount of child support that each parent will pay based on physical care arrangements.

A child support schedule is used to calculate the basic child support obligation. The basic child support obligation is divided equally between the parents based on their adjusted AGI.

Legal Divorce

A married marriage may enter into a written separation agreement that includes provisions for either party’s maintenance, the disposition of any property owned by either party, and the allocation of parental responsibilities, support, and parenting time for their children.

In a proceeding for dissolution of marriage or legal separation, the terms of the separation agreement, with the exception of those providing for the allocation of parental responsibilities, support, and parenting time of children, are binding on the court unless the court finds, after considering the parties’ economic circumstances and any other relevant evidence produced by the parties, on their own motion or at the court’s request, that the separation agreement is unconscionable.

If the court finds the separation agreement to be unconscionable, it may request that the parties submit a revised separation agreement, or it may make orders regarding property disposition, support, and maintenance.

If the court determines that the separation agreement is not unconscionable in terms of support, maintenance, and property, the following steps will be taken:

• Unless the separation expressly states otherwise, the terms of the separation shall be set forth in the decree of dissolution or legal separation, and the parties shall be ordered to comply with them; or
• If the separation agreement states that its terms are not to be included in the decree, the decree must identify the agreement and state that the court found the terms to be not unconscionable.

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