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Colorado Springs divorce - dissolution of marriage, declaration of invalidity, annulment, legal separation, allocation of parental responsibilities, child custody, parenting time, visitation, spousal maintenance, alimony, child support enforcement, alimony enforcement, property division, debt division, paternity, legal parentage, domestic abuse restraining orders, domestic violence criminal defense. Colorado Springs Divorce Attorney Robert D. Gustafson, Colorado family law trial practice 25+ years
It exists in Colorado. If you are common law married, to end the marriage you must file for dissolution of marriage - the marriage is as lawful as if you had become married before a minister, judge or magistrate. Please refer to the Common Law Marriage page for more detailed information.
Either the husband or wife must be a legal resident of Colorado for at least 90 days before you can file for divorce or separation. Legal residency, called domicile, is not the same as simply living here. A person acquires legal residence by having significant contacts with the state. One party must intend to permanently reside here, or return here after all travels are done. Some of the objective indicators are: Colorado driver's license, Colorado automobile registration, paying Colorado state income taxes, registration to vote in Colorado, banking in Colorado, & home ownership or having executed a lease. In Lyons v. Eagan, 110 Colo. 227, 132 P.2d 774, the Colorado Supreme Court quoted with approval from Rapaljae & Lawrence's Dictionary the following: "The distinction between mere residence and domicile must be borne in mind. The former is used in law to denote that a person dwells in a given place; the latter is the legal home of a person, or that place where the law presumes that he has the intention of permanently residing although he may be absent from it." Put simply, the concept is "ET Phone Home - Hooome." Legal residence is required. If neither the husband nor the wife are a Colorado legal resident, Colorado courts do not have the power to grant a dissolution of marriage or legal separation. If you are not a Colorado legal resident and have no intention of becoming a Colorado legal resident, you must seek a dissolution of marriage in your home state. To be a Colorado legal resident, military personnel must claim Colorado as their home of record. If Colorado is not presently the home of record, Form DD-2058 affidavit of residency may be found at a military finance office or refer to above link for PDF file. Free Acrobat Reader Download The form must be filed with the military finance office to cause Colorado state income taxes to be withheld. I have had military clients inquire whether they could file the Form DD-2058, temporarily claim Colorado as the home of record while the divorce case is pending, then switch back to a state which has no state income tax. NO. That will jeopardize the court's jurisdiction and validity of the decree. I will not participate in subterfuge.
these are merely labels
The only grounds in Colorado are incompatibility; we are a no fault state. CRS 14-10-106 The term used in your case will be that the marriage is irretrievably broken. In other words, you can't patch up the marriage, even with counseling. You need not and will not be allowed to tell the court the "bad things" your spouse has done. Under Colorado law, fault is not admissible except in very limited circumstances in disputes involving children. The name of a third party having an affair with you or your spouse is not admissible. Naming a third party in a divorce is a misdemeanor (crime) punishable by a $1,000 maximum fine and or 90 days maximum jail.
Breach of contract to marry, alienation of
affection, criminal conversation and seduction (adultery lawsuits) are not
possible in Colorado. Even threatening to bring an adultery civil lawsuit is a
crime punishable as indicated above. CRS
13-20-201, et. seq.
One of you will file a petition asking the court to dissolve the marriage and decide the issues of parental responsibility allocation, parenting time, child support, spousal maintenance, division of property and division of debt. That person will be called the petitioner. The petition and a summons will be served upon your spouse. The summons merely tells your spouse he or she is being sued for divorce. Service means that the papers will be handed to your spouse, or perhaps published in the newspaper under limited circumstances. Due process (fairness) requires you to inform your spouse that you are requesting a divorce. Service of process on an average costs between $35 and $50, but can vary. If your spouse is willing to sign a paper saying he or she received the legal documents, you can use the mail and there is no charge for service of process. That is called waiver and acceptance of service of process. Spouses usually don't sign; I don't recommend attempting waiver of service. Don't know the present whereabouts of your spouse? It is better to personally serve the spouse, but if he / she can not be found, service may be completed by publication. An affidavit of good faith effort to locate must accompany the motion to publish, including efforts to skip trace. It may be necessary to utilize the services of a private investigator to locate the spouse. Publication is the last resort. Court orders may be subject to collateral attack and publication vests the court with in rem (subject matter) jurisdiction only - limitation of the court's powers. The person who is sued will be called the respondent. He or she is required to file a response with the court. Other than the difference in the filing fee, it does not matter who is the petitioner and who is the respondent. It is not a race to the courthouse. After filing and service of process on the respondent, by law there is a mandatory 90 day waiting period before the divorce can be finalized. This is a cooling off period. CRS 14-10-106 Upon commencement of the divorce, the following injunction enters automatically by operation of law. CRS 14-10-107
If the facts warrant, the court may grant a request to actually impound assets or money and take them out of the control of yourself or your spouse. If you have children, in El Paso County both the husband and wife will be ordered to attend one parenting class during which a video will be shown. You need not attend together. It does not matter whether you agree on all issues regarding the children or not; the parenting class is mandatory before final decree enters.
You may have a temporary orders hearing, at which time the judge will allocate parental responsibility and enter orders regarding parenting time, child support, spousal maintenance, and who may use property or must pay debt temporarily while the case is in progress until final orders are entered. That hearing is frequently about 2-4 weeks after filing. The court's docket will determine how soon the hearing can be held after filing. The attorney will try to settle your case during the 90 day waiting period. If agreements can be reached with your spouse, the attorney will prepare a detailed written agreement. That agreement will eventually become part of the final decree (order).
If
a written settlement agreement has been made and filed: If the parties can not agree, the case will enter the contested phases of divorce. This may include child custody evaluations, psychological evaluations in child dispute cases, or real estate or personal property appraisals and mediation. Each party may be required to produce copies of billings, canceled checks, bank statements, pension or other financial documents. Each party is required to file a detailed financial affidavit. A disclosure certificate must be filed with the court reflecting that each have provided numerous financial documents to the other. It is possible that depositions will be taken. That means questioning under oath in front of a court reporter who records all statements. Interrogatories may also be used. Interrogatories are written questions which must be answered in writing under oath. In the discovery phase of the case, both parties have the opportunity to learn almost anything he / she wants to know to prepare his / her case. The days of Perry Mason and surprises in court are gone. Discovery is frequently expensive - cost can be reduced if both parties are open and voluntarily exchange financial documents. If the parties can't settle and must set court hearings, mediation is required before setting a contested final hearing. For additional information, refer to the Mediation & Arbitration page of my primary website. Before temporary or final orders hearings, most judges require a pre-trial statement - a written statement which advises the court of agreements, contested matters, facts and law, parenting plan and other disposition requested by each party. Counsel may attend a pre-trial or status conference in chambers at which time each side advises the judge what of agreements, disputes and issues - what the court fight will be about. Some judges do not allow the parties into chambers during a pre-trial conference, others require the parties to be present. Any divorce may be involuntarily set into the Divorce with Dignity non-adversarial divorce settlement and case management program emphasizing cooperation, disclosure and informal settlement. The parties and attorneys meet with the judge in chambers 2-3 times over a 90-120 day period, commencing about 30 days after a petition is filed. The court hopes a separation agreement and a decree are completed during that period. A non-appearance affidavit is used to formalize the decree. Parties with children are still required to go to the parent education class but no party is required to attend mediation. The judge will set initial and subsequent conferences. The initial conference may be used to adopt temporary orders. Full financial affidavits are required. Unless authorized by the judge, no motions may be filed. Only one court-appointed expert on any contested issue is allowed. No formal discovery is authorized. After final hearing, if a litigant does not like the judge's decision, appeal must be filed in the Court of Appeals. Generally, a party can not state he / she does not like the ruling & ask for a new ruling or judge. If the parties can reach agreements, a divorce can generally be completed in about 4 months from start to finish. If the parties can not agree, it may take as long as 1 - 2 years. Tell your attorney if you have plans to marry another in the near future, if the wife in the present marriage is pregnant, or if either alleges the husband is not the father of a child. Once a response has been filed, the case may not be dismissed (thrown out) unless both parties agree. If both agree, the case may be dismissed at any time until the final orders have been entered. If one party wants the divorce, the other can not stop it. Either may ask for court ordered marital counseling, but it probably will not be ordered if the other simply states the marriage can not be saved; he or she does not desire counseling.
Effective January 1, 2005 Colorado Rule of Civil Procedure C.R.Civ.P. 16.2 was adopted which provides for mandatory disclosure (discovery), limited motion practice and case management by the court. Judges and magistrates are serious about Rule 16.2 obligations and judicial case management. Once the case is filed, be prepared to disclose documentation and move the case forward in a timely fashion. Refer to the above link to view the rule - it applies to the initial case and post decree matters. To assist in rapid case preparation, fact sheets have been made available on-line. Open file password is given to a client or sent via email once retained. Counsel asks clients to invest significant effort at commencement of representation to provide an understanding of the relevant facts and documents which must be disclosed. Judicial case management has removed any dilly dallying - timely case preparation is now obligatory to avoid sanctions.
If removal of the spouse from the marital home is necessary, court orders may be obtained, and done without prior notice under some circumstances. However, it is preferable to work out the residence without court orders. There is no pleasant or enjoyable way to physically separate. If necessary, either party may hire an off duty police officer to be present and keep the peace while household goods are being physically moved. You may attempt to hire an off duty law enforcement officer by calling the Colorado Springs Police Department or the El Paso County Sheriff's Office. No officer will participate in deciding who may take or keep individual items, the officer will merely keep the peace. Plan on $50+ minimum. To provide for an efficient and rapid move, make certain sufficient manpower, truck space, dollies, pads, etc. have been arranged in advance.
Annulment means the marriage never existed - it is now called declaration of invalidity. This can be obtained only with very special facts, such as bigamy (concurrent multiple marriages), incest (marriage to a relative), fraud, duress (shotgun wedding) or surprise inability to consummate the marriage (sex). Short duration (hours, days, weeks or months) is insufficient in and of itself in Colorado. Most marriages do not qualify. If children were conceived or born during the relationship, the court would address the issues of parental responsibilities allocation and parenting time (custody and visitation) and child support. The court would also enter orders regarding mutually acquired property and debt. The most common reasons to seek declaration of invalidity would be:
Many persons have inquired through the years and expressed a desire to annul the marriage. The statute which sets forth the grounds for declaration of invalidity is linked above. Colorado Revised Statutes (CRS) are available on-line (refer to link) or are available in the local law library supported by the El Paso County Bar Association - you may ask a librarian for assistance in locating statute books. If you hope to annul your marriage, read the statute to determine whether grounds exist to invalidate your marriage.
Where a lawful marriage existed, and the parties desire to keep the umbilical cord of the marital legal relation but live apart and deal separately with property and debt, the parties may file for legal separation. After entry of decree of legal separation, the parties remain lawfully married, however are otherwise similar to single persons in their contractual dealings and property ownership. The most common reasons to seek legal separation would be:
The procedures to obtain a legal separation are very similar to divorce. The major difference is that the legal bond of marriage is not severed. Six (6) months after decree of legal separation entry, either party may convert to it dissolution of marriage. CRS 14-10-120
The court previously decided legal custody (decision making), physical child custody (where a child lived) and visitation ( the schedule upon which the non-custodial parent was entitled to see a child) based upon the best interest of the children. In effort to eliminate the idea that children are items to be awarded in a divorce, terminology has changed. Custody and visitation no longer exist in Colorado except as is required for tax exemptions. CRS 14-10-131.7 Refer to allocation of parental responsibilities and parenting time below.
Allocation of parental responsibilities CRS 14-10-124 Decision making for children remains an issue for the court to rule upon. That is now called allocation of parental responsibilities. The court addresses day to day decision making, as well as major decisions such as religion, medical care, education and general welfare issue which affect a child. Major decision making may be ordered jointly, or by the parent with whom the child primarily resides. Provision is also made for future dispute resolution, such as submission to mediation, arbitration, or request for the court to review the disputes. The court may order joint decision making without agreement of the parties, even over each parties' objection. * * * * * * * * Parenting time encompasses court rulings regarding the children's primary residence and upon what schedule the other parent will have the children physically present with him or her. The court continues to use the best interest of the child as the polestar. CRS 14-10-123.4 More emphasis is now placed on each parent assisting with children's obligations, such as homework, taking the children to activities, etc. If possible, children should have liberal access to each parent - children have a right to know and love each parent. Under limited circumstances, parenting time may be restricted or denied by the court if in a child's best interest. The court will consider denial of or failure to exercise parenting time in ruling upon decision making, primary physical residence and parenting time. Parenting time
enforcement. CRS
14-10.5-104 The court may utilize: * * * * * * * * Access to records. * * * * * * * * "Custody battle" with
significant other or extended family member. * * * * * * * * Motion to modify - affidavit
required.
Terminology sometimes appears confusing, however it may not seem so difficult when you understand the court will be ordering how major decisions affecting children will be made, and deciding separately who will be the primary caretaker for the children. Obtain a spiral notebook and keep brief notes regarding matters pertaining to the children, both agreements and disputes. Date each entry, state only facts, not opinions, and make each entry brief. Keep a record of parenting time requests, including dates & times, parenting time exercised, and relevant facts. Your notes may be later used to refresh your recollection on the witness stand and will be used by the lawyer to prepare for hearings. With notes, you may effectively rebut false claims of your spouse and you will have a record to build your case. Advise the attorney not only of favorable circumstances, but of facts which may be harmful to your case. Allowing your attorney to be educated by opposing counsel in court is very damaging to your case. If you and your spouse are contemplating a "custody battle," seriously consider the matter in light of the effect it may have on your children. Custody evaluation is likely and a guardian ad litem or special advocate may be appointed by the court to represent the best interests of your child(ren). You must be prepared to commit substantial financial resources. Each party will be required to submit a written, detailed parenting plan. In every case where children are involved, this attorney recommends you consult a psychiatrist, psychologist or licensed social worker to learn more about what impact your separation will have on the children, and how to effectively cope. Advance knowledge will likely assist you in neutralizing negative circumstances and minimizing injury to your children.
Hundreds or perhaps thousands of dollars may be at issue regarding any aspect of child support - any aspect may become a contest in any case. Naturally, former litigants have taken support issues on appeal, and caselaw exists.
If you have children, child
support will be ordered by the court. The divorce child support statute
is
CRS 14-10-115 which sets forth criteria for establishing child support.
From the statute have sprung child support guidelines and computation
forms and tables (like tax forms) which will be used in setting child support,
however the court may order a different amount if necessary to set a fair
support figure. The court will look at the ability of each parent to support
and the needs of the children, including daycare expenses, health,
hospitalization and medical insurance and deductible or non-covered medical
expenses, continuing medical
expenses, private
school tuition if agreed or court ordered, post-secondary education
or other
financial circumstances relevant to your children. Child support is not
taxable income or deductible. Issues to be addressed are deviation from
guideline child support amount, relation back - retroactive child support,
statutory interest, tax considerations and exemptions Up to 93 overnights, no support deduction is made for the obligation of the residential parent's child support obligation to the other parent. This computation is labeled Worksheet A - Child Support Obligation. Commencing at 93 overnights with the other parent, deduction is made for the obligation of the residential parent's child support obligation to the other parent. This guideline computation is labeled Worksheet B - Child support Obligation - Shared Time. Depending on the actual contribution circumstances, even with 93 or more overnights, the court may use Worksheet A. If the parties have multiple children and one or more primarily reside with one parent while one or more children primarily reside with the other parent, two child support guidelines are calculated for the child(ren) with each respective parent, then set off to determine the net support owed by one parent to the other. Child support guideline computation worksheet labels do not affect the decision making process or scheduled overnights; they are merely mathematical computations. When computing the amount of child support, after born children not children of both parties will not be taken into consideration. In later modifications, that means if either party has children born of a another relation subsequent to the child who is the subject of the support proceeding, no consideration will be given to the expense of raising or supporting those children, whether born in lawful wedlock or not. CRS 14-10-115(7)(d.5)(1) Receipt of public assistance benefits must be reported at the time of filing the petition. CRS 14-10-107.7 If public assistance is being received at present, it is important to obtain a support order as quickly as possible to limit potential liability of the obligor spouse. If welfare has been received for a child, notice must be given to and it is likely the local governmental Child Support Enforcement Unit (CSE) will enter as a party in the case seeking reimbursement for current or past welfare expenditures. It is illegal to agree the "non-custodial" parent will not see the children in return for no payment of support. Do not attempt to pass this type of agreement by the court. Contest may arise regarding issues such as reasonableness of daycare, unemployment or underemployment and imputed income, tax exemption, health insurance and on-going medical deductible or non-covered expenses. Medical expenses can include cosmetic orthodontia, medically necessary orthodontia, eye-care, dental treatment, and any uninsured single or chronic health problem. Significant amounts of money can be involved. Current child support may be enforced by income assignment. With this remedy, the obligor's employer deducts child support or spousal maintenance from the obligor's paycheck each payday and sends direct to the District Court Registry Fund or the statewide Family Support Registry. This assures current payment so long as the obligor remains employed. If one party requests an income assignment, it must be automatically granted pursuant to statute. CRS14-14-111.5(2)(f) The fund utilized depends upon the type of support (child support or spousal maintenance) and whether support is ordered in a divorce case or paternity case. * * * * * * * * Health, Hospitalization and Medical Insurance Insurance Required. In child support orders issued pursuant to the divorce child support statute (CRS 14-10-115) the court is required to provide for the child(ren)'s current and future medical needs by ordering either parent or both parents to initiate medical or medical and dental insurance coverage for the child or children through currently effective medical or medical and dental insurance policies held by the parent or parents, purchase medical or medical and dental insurance for the child or children, or provide the child or children with current and future medical needs through some other manner. At the same time, the court is required to order payment of medical insurance or medical and dental insurance deductibles and co-payments. Payment of a premium to provide health insurance coverage on behalf of the children subject to the order is to be added to the basic child support obligation and shall be divided between the parents in proportion to their adjusted gross income. Insurance Cost Excessive - Requirement Abated. Where the application of the premium payment on the child support guidelines results in a child support order of fifty dollars or less or the premium payment is twenty percent or more of the parent's gross income, the court or delegate child support enforcement unit may elect not to require the parent to include the child or children on an existing policy or to purchase insurance. The parent shall, however, be required to provide insurance when it does become available at a reasonable cost.
Insurance Assignment. * * * * * * * * Deviation from Child Support
Amount Presumed Reasonable The trial court may deviate from presumed amount of support in CRS 14-10-115 according to the criteria in subsection (6) so long as it enters findings that allow an appellate court and the parties to discern the reasons for the deviation. In Interest of D.R.V., 885 P.2d 351 (Colo. App. 1994). If the record ( paternity case) reflects the trial court considered the relevant factors for determination of support, CRS 14-10-115, (divorce statute) there is no abuse of discretion. Garcia, supra, In re Marriage of Krise, 660 P.2d 920 (Colo. App. 1983). * * * * * * * * Relation Back - Retroactive Child Support Child support may be ordered retroactive to the later date of separation, filing the divorce lawsuit or service of process upon the Respondent. This is called retroactive child support or relation back. Issues can be highly contested regarding whether the court enters an order for support during a period of time prior to the order, what period is covered, how much periodic support is ordered and terms of repayment. Once a support order is entered, each installment becomes a judgment the day it becomes due. The court may not later modify the amount of support or deny the obligee any lawful remedy. Child support can be efficiently enforced. Refer to the Support Enforcement page of my primary website for additional information regarding income assignment for support arrearages, garnishment of income or bank accounts or enforcement by contempt of court (jail). * * * * * * * * Period of Child Support Obligation Colorado courts will order child support until emancipation. For purpose of child support obligations, emancipation under Colorado law is presently the child’s 19th birthday, death, marriage, or enlistment in the U.S. military armed forces. A child may otherwise become earlier emancipated, and emancipation may not in fact occur at age 19 - such as a child with disabilities. * * * * * * * * Statutory interest on child support is 12% per annum from the date each installment was due. CRS 14-14-106, CRS 5-12-101. Once an order has entered, obligee (person receiving child support) has a right to statutory interest. If an obligor defaults on a child support installment after entry of order, obligee is entitled to statutory interest. If the court relates back in an order and , at issue may be whether the obligee is entitled to statutory interest at 12% per annum on retroactive support arrearages. * * * * * * * * Tax Considerations and Exemptions Child
support is not taxable income or deductible.
Alimony exists in Colorado, just a different label - spousal maintenance. The person seeking spousal maintenance must first establish need, and if established, then the court will look at the finances of each party in setting the amount and duration. The court need not order any maintenance or may award up to lifetime. The shorter the duration of the marriage, the less likely the court will order maintenance, or the shorter the duration of award. The court seeks fairness. Each marriage is different, and the award or rejection of spousal maintenance depends on the facts of each case.
To compute spousal maintenance, each parties' income must be known. For information regarding Military and Civil Service Defense Employee Pay and Benefits refer to the link. This information is beneficial when an LES is not available to the spouse. Spousal maintenance receipt is taxable income. Payment is tax deductible. Interesting little tidbit for persons seeking spousal maintenance or seeking to avoid alimony. Failure to request permanent spousal maintenance in petition for dissolution of marriage or petition for legal separation will likely invalidate the claim.
Separate property is generally property acquired before the marriage or received during the marriage by gift or inheritance. Unless the owner has titled the property jointly or made a gift of it to the spouse, separate property will not be subject to division. However, see below. Although the court may not divide separate property, in practicality it may be necessary to sell to satisfy the award of marital increased value. Marital property is generally that which is acquired during the course of the marriage except as above. Any increase in value of separate property during the marriage is considered marital; i.e.: home owned before marriage worth $90,000 at marriage, now worth $150,000 yields $60,000 marital property and $90,000 separate property. Marital property is subject to division in dissolution of marriage. The above simple example assumed home purchase by cash with no debt. Secured debt would be an equity factor at the time of acquisition, marriage and divorce. Separate debt is generally acquired before the marriage and not subject to award against the other spouse. Reduction in separate debt can be allocated as marital property. Debt incurred during the marriage is generally marital debt, even if incurred only by one spouse without the knowledge or consent of the other spouse, or if incurred without the other spouse's joint signature.
The court will equitably divide marital property
& marital debt. If the parties are unable to agree on value or division of personal property, the court may order all personal property sold at auction. Be reasonable - not greedy.
Please refer to the
Resources
Links page of my primary website for assistance in placing values on your real property,
personal property or motor
vehicles. Specific link designations are provided below. Pensions, including military and PERA, are property subject to division if earned during the course of the marriage. It is not necessary that a pension be vested or mature for the court to divide it. Vesting is the right to take the pension if you left employment. Mature is the right to receipt at present. If the marriage is over 10 years duration during creditable military service, the military will disburse the spouse's share direct to him or her if requested. Numerous court rulings have interpreted the "10 Year Rule" which does not prohibit or deny the spouse's claim if the marriage was less than 10 years duration during creditable military service. The "10 Year Rule" merely deals with whether the military will disburse a portion of the pension to the former service member and a portion to the former spouse, or whether all will be disbursed to the former service member and then he / she must disburse to the ex-spouse. IMPORTANT NOTATION: For any loan you have taken or will take from family or friends, document the loan with a promissory note reflecting the loan date, initial principal amount, interest (if any), method of repayment (i.e.: installment or lump sum) and amortization (scheduled payment amounts and due dates.) If you have borrowed items of personal property, make a writing reflecting the date or circumstances regarding return. This documentation is admissible evidence if your spouse claims family or friends made a gift to you individually or jointly. Lawyers see this dispute with some regularity - protect yourself now, even if after the initial loan date. Clients may refer to the link to obtain a form Promissory Note. Free Acrobat Reader Download
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