Questions & Answers
Divorce
| What are valid grounds for divorce? |
| "No fault" divorce has been adopted by Colorado. This means that it is not necessary to prove cruelty, adultery, etc., in order to obtain a divorce. The only ground for a divorce is that the marriage is irretrievably broken. Fault is not to be considered as a factor for dividing property and determining financial issues or support. |
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| What is a legal separation? |
| A legal separation means that both parties can live separately without being bound by the actions and contracts of the other. It does not terminate the marriage. Property may be divided, obligations for support and maintenance determined, temporary custody awarded, and debts apportioned between the parties. Either party may request a Decree for Dissolution before the final hearing or six months after the final decree is granted. Legal separation is also considered to be "no fault". Parties obtaining a legal separation should understand that it may easily be turned into a divorce. Either party can ask the court to grant a divorce, and the court will grant this request any time six months or more after the legal separation is granted with only notice being given to the other spouse. |
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| How long does it take to obtain a divorce or legal separation? |
| The parties must wait 90 days before either a Decree of Dissolution or Legal Separation can be final. This time period begins once the Petition is filed and served on your spouse. |
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| How is the process begun? |
| The process is the same whether filing for a legal separation or divorce. A "petition" and "summons" are filed at the court by one spouse, his/her attorney, or jointly by both spouses. The Petition states the names and ages of the husband, wife, and all children born or adopted during the marriage; when and where you were married, and when you separated; that the residence requirement has been satisfied; and that your marriage should be dissolved. It asks the Court to divide the property, allocate parental responsibility, child support, maintenance, attorney's fees, and court costs. |
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| What is "service of process"? |
| After the Petition is filed, the other spouse must receive proper notification. A copy of the Petition can be hand-delivered to your spouse or s/he can sign a Waiver after receiving a copy of the Petition by another means. The Waiver simply acknowledges receipt of a copy of the Petition. |
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| What are the residency requirements? |
| Prior to filing your Petition for Dissolution of Marriage or Legal Separation, either you or your spouse must have resided in Colorado for ninety (90) days. |
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| Does it matter which spouse files? |
| No, there is no legal significance as to whether the husband or the wife files the Petition. However, in a trial, the order of presentation is determined by who files, so some attorneys believe that going first, or going last, confers an advantage. Usually, it is a wash and most attorneys would not advocate rushing to file for this reason. |
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| What is an "uncontested" divorce? |
| If both parties agree to everything that must be decided, the court will usually approve an agreement between the parties as soon after the 90 days as the agreement is submitted. The agreement can be submitted by mail if both parties have lawyers, and no court hearing is required for the divorce to be granted. |
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| What if there are disputed matters? |
| If your spouse disputes any matter, you do not have an "uncontested" divorce and a trial will be necessary. The Court will hold a trial to decide any disputed matters concerning parental responsibility, visitation, support, division of property and debts, and payment of court and attorneys' fees. This hearing is called Permanent Orders. |
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| What is an automatic injunction? |
As soon as the Petition is filed, certain Court orders automatically go into effect for the protection of the parties. These orders cover both spouses. The automatic orders are:
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| What are temporary orders? |
| If your spouse is being physically abusive to you or to the children, refuses to provide reasonable support, to give information concerning property, or refuses to permit reasonable visitation, the Court will hear your evidence and determine if you will get relief while the case is pending. The Court will also provide temporary allocation of parental responsibilities, visitation, and support of the children, as well as temporary use of the family home. |
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| What are court orders? |
| An agreement reached by the parties becomes a Court Order once approved by the Court. Court Orders are enforceable through various means such as "contempt of court". |
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| What is maintenance? |
| This is the financial support provided by one spouse for the other. Maintenance can be awarded where one spouse assists the other in obtaining an education, where one spouse requires time or training to become employed, or where there is substantial discrepancy between the income of the parties. |
| There is no set formula to determine the appropriate amount of maintenance, if any. Some factors that are considered in awarding maintenance include the length of the marriage, the ability of each spouse to support him or herself, and the mental and physical health of each party. |
| Maintenance is tax deductible by the paying spouse and is taxable income to the receiving spouse. |
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| How is property divided? |
| There are two types of property in Colorado, marital and separate. Marital property is anything acquired by either person during the marriage. Separate property is that which is received by either party as a gift or inheritance, or which was owned prior to the marriage. Marital property is divided between the parties but separate property is given to the owner. Separate property can not be divided except when there's been an increase in its value during the marriage. In Colorado, the appreciation in marital property is subject to division. |
| In order for property to qualify as separate property, it must have been kept separate from marital property. For example, if a house was owned by one person before the marriage and then put into both names, it is usually presumed to be marital property. |
| Colorado is not a "community property" state, which means that assets and debts are not automatically divided 50/50 between spouses. In practice, however, the marital property and debt are often divided close to 50/50. |
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| How much does a divorce cost? |
| The initial filing fees are $184.00 for the Petition and $70.00 for the Response. If there are depositions, investigations, appraisals, or custody evaluations, the costs increase substantially. Family attorneys charge an hourly rate. Generally, the costs of going to Court are greater than the costs incurred using a non-adversarial process. |
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| And attorney fees? |
| The exact fee will vary with the services you require. Basic divorce services include: the preparation and filing of the Petition or Response; summons and waiver of service; obtaining information from you concerning property division, child and maintenance support; preparation of the Separation Agreement or Memorandum of Understanding; and preparation of all disclosure certificates required by the Court. Additional fees are charged for personal or telephone conferences, settlement negotiations, tax planning and advice, and for all Court appearances. |
| An advance payment, called a retainer, will be required before services are provided. The amount of the retainer varies with the services required. Any unused retainer is refunded at the end of the case. |
| If a trial is necessary, one party may be ordered by the Court to pay the attorney's fees for the other party. |
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| When is the divorce final? |
| The divorce is final either on the day it is granted in Court or on the day the Judge signs the Decree if the divorce is granted by affidavit (by mail). If an appeal is filed, the orders of the Court are reviewed, but not the granting of the divorce. |
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| Our professional services. |
| We provide experienced attorneys, competent support staff, and current technology. Your case is given our continuing personal attention in an effort to obtain for you the best results possible in the most reasonable time and at a reasonable cost. |
| Confidentiality: We must have all the facts to represent you properly. Anything you tell anyone in this office is strictly confidential and will not be disclosed without your permission. |
| Keeping you informed: We will make every effort to keep you informed. You will receive, in a timely manner, copies of all documents prepared or received by us. You will also receive a monthly statement that details the work done by us on your behalf. |
| One lawyer for both parties? One lawyer or firm cannot represent competing interests. |
| Your responsibilities: We expect our clients to be cooperative and truthful. Without this, we will not represent them. We also expect that all financial commitments to our office be handled in a prompt and business like manner. Clients need to notify us of any change of address or telephone number or if anything that may affect their case is learned. |
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| Anything else? |
| Reconciliation: While sometimes divorce seems like the only solution, oftentimes it is not. After the divorce process commences, you may decide to try to work things out in your relationship. Our policy is to encourage efforts towards reconciliation. If you decide to drop the divorce action, you will pay only for those services actually performed and costs actually accrued up to that time. The balance of the retainer will be refunded. |
| Change of name: A former name, such as a wife's maiden name, may be restored as part of the final Decree at no additional charge. This is a personal decision. Alternatively, a wife who took her husband's name at the time of the marriage can keep his name after the divorce. |
| Wills: The Colorado Probate Code invalidates certain provisions of wills which were made prior to divorce. Following the divorce, you and your spouse will probably need new wills. |
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| General suggestions. |
| Your well-meaning friends and associates may offer you advice about your case. Frequently such advice is not accurate and you should be cautious in following it. The facts surrounding your marriage, divorce, children, and property are unique and they differ from every other case. Divorce proceedings are very emotional and parties sometimes seek revenge. Sometimes one parent will use the children in an attempt to punish the other parent. Prepare your children properly without poisoning their minds about your spouse. Obtain professional advice if necessary. Attempt to cooperate with your spouse where the children are involved. Discuss support and property division with your spouse. Be fair. |
| Try to keep conflict away from the children. Children are harmed by being placed in a battle between their parents. You may be divorcing your spouse but you will always be parents to your children, and they need both of you. |
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Alternative Dispute Resolution
| What is Alternative Dispute Resolution (ADR)? |
| This is the umbrella term for ways to resolve a dispute in a non-adversarial manner such as through mediation, or arbitration. |
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| What is mediation? |
| A third person who is trained as a mediator may assist you and your spouse in reaching an agreement. Mediators do not make decisions for you nor do they side with one spouse or the other. A mediator, however, also does not guarantee that the agreement is fair. The state provides mediators at a lower rate than that charged by most private mediators. |
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| What is arbitration? |
| Arbitrators are private individuals you can hire to decide your case, just as a judge would do if you went to Court. Arbitration can be binding or non-binding. |
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Children
| What is child support? |
| The amount of child support to be awarded is determined through the use of a formula. The Court considers the gross income of each party, the needs of the child, the amount of time the child spends with the spouse who does not have residential custody, child care expenses, and medical insurance costs. The Court cannot change the amount of child support determined by formula, except under unusual circumstances. |
| The law requires that the parties exchange financial information once every year following a divorce. If there is a change of financial circumstances for either party that results in a change of 10% or more in the present child support, the Court will order the support changed. |
| The Court will also enter orders concerning the tax deductions for the minor children. At the present, the law is that the deductions will be awarded in proportion to the amount of support provided by each parent. |
| The Court can require support of a normally healthy child only until age 19. It may be possible to continue support beyond this age for a child with a mental or physical disability. |
| Upon request of either party, the Court will order the child support payments be paid through the Registry of the Court. If the spouse fails to pay the required amounts of support, an income garnishment can be issued for all arrearages and all future payments or a Citation for Contempt of Court can be issued upon application. |
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| What about parental rights and responsibilities? |
| "Custody" is no longer awarded in Colorado. "Parental responsibility" for children is awarded to one or both of the parents. In the event that the parents cannot come to an agreement on this, the Court will decide which parent will make certain decisions for the children. |
| The best interests of the children is the legal standard by which parental responsibilities are awarded. Many factors are taken into consideration when determining this, such as the history of involvement by each parent, the mental and physical health of the parties, and the ability of the custodial parent to encourage the relationship between the children and the non-custodial parent. |
| Many courts now require that both parents, and sometimes the children also, attend a four-hour class on divorce. This provides you with information about what behavior to expect from your children and how best to help them through the divorce process. |
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| What is visitation? |
| This is called "parenting time" and is the scheduled time each parent has with the children. This is not based on how parental responsibilities have been divided, but rather on the needs and ages of the children. |
| Parenting time is also not tied to payment of child support. The courts enforce parenting time in the same manner as enforcement of payments for child support. |
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| Dating and remarriage. |
| The decision to date while pursuing a divorce is yours alone, but be aware that problems may arise. If there are child-related issues, your personal life is taken into consideration. |
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