THE DIVORCE PROCESS
Petition for Dissolution of Marriage
This legal document provides the court information regarding the marriage and the issues that need to be resolved.
91-day waiting period
During the 91-day waiting period, the parties must exchange financial disclosures. Additionally, the parties negotiate and attempt to resolve all outstanding issues. Most cases are resolved through negotiation and compromise–frequently with the assistance of a mediator.
The court will conduct periodic status conferences to ensure the case is moving toward completion and assist the parties in resolving emergent issues during the process.
Orders provide stability for the parties during the divorce process on temporary issues such as parental responsibility, child support, maintenance, payment of debts, attorney fees, and use of property, including the marital residence. These orders remain in effect during the dissolution process and expire once the Decree of Dissolution of Marriage and Permanent Orders are entered.
Hearing for permanent orders
You must comply with all deadlines. Additionally, you must disclose to the other party the name, address, telephone number, and a summary of the testimony of any witnesses that you intend to call to testify on your behalf. If expert testimony is required, the expert’s report is due in advance of the hearing. Experts are used to testify to the value of a property or residence, a business, a person’s employability, and the children’s best interests. Failure to accurately disclose expert and witness testimony may result in the court disallowing such testimony.
Exchange all exhibits
In advance of the hearing, exhibits must be presented to the opposing party. Failure to provide the other party a copy of any exhibit may result in the court prohibiting the exhibit from being admitted into evidence.
The process can be complicated if all issues are not resolved by agreement.
SPOUSAL SUPPORT AND MAINTENANCE
The court will determine the maintenance (or spousal support) amount and duration.
On January 1, 2014, a new law was enacted to provide judges with advisory maintenance guidelines. The guidelines utilize a formula based on each party’s income or potential income and the length of the marriage.
The formula can assist the parties in negotiating maintenance. Before entering into an agreement, it is important to understand the differences between modifiable maintenance and contractual, non-modifiable maintenance.
The court must consider numerous factors in conjunction with the formula when determining whether maintenance is appropriate, and the term and length of the maintenance award.
These factors are contained in C.R.S. § 14-10-114 and are as follows:
- The financial resources of the recipient spouse, including the actual or potential income from separate or marital property or any other source, and the ability of the recipient spouse to meet his or her needs independently.
- The financial resources of the payer spouse, including the actual or potential income from separate or marital property or any other source, and the ability of the payer spouse to meet his or her reasonable needs while paying maintenance.
- The lifestyle during the marriage.
- The distribution of marital property, including whether additional marital property may be awarded to reduce or alleviate the need for maintenance.
- Both parties’ income, employment, and employability, obtainable through reasonable diligence and additional training or education, if necessary, and any necessary reduction in employment due to the needs of an unemancipated child of the marriage or the circumstances of the parties.
- Whether one party has historically earned higher or lower income than the income reflected at the time of permanent orders and the duration and consistency of income from overtime or secondary employment.
- The duration of the marriage.
- The amount of temporary maintenance and the number of months that temporary maintenance was paid to the recipient spouse.
- The age and health of the parties, including consideration of significant health care needs or uninsured or unreimbursed health care expenses.
- Significant economic or noneconomic contribution to the marriage or to the economic, educational, or occupational advancement of a party, including, but not limited to, completing an education or job training, payment by one spouse of the other spouse’s separate debts, or enhancement of the other spouse’s personal or real property.
- Whether the circumstances of the parties at the time of permanent orders warrant the award of a nominal amount of maintenance to preserve a claim of maintenance in the future.
- Any other factor that the court deems relevant.
In addition to understanding the legal aspects of maintenance, it is important to consult with a tax advisor to understand the tax ramifications of any settlement and maintenance.
COMMON LAW MARRIAGE
Common law marriage is established by mutual consent or agreement to be spouses, followed by the open assumption of a marital relationship.
In Colorado, cohabitation must exist, but there is no required duration. To prove the existence of a common law marriage, the following must exist:
- Cohabitation (as spouses)
- Agreement to be married
- Evidence of mutual agreement
Importantly, the burden of proof lies with the claimant of common law marriage. Judges scrutinize these cases to ensure evidence of:
- Joint finances, such as bank accounts and credit cards
- Joint ownership of property, often including real estate
- Joint filing of income taxes
In some cases, healthcare agencies, educational institutions, or employers may ask for an Affidavit of Common Law Marriage. This document has specific legal requirements and should be created with the help of an attorney to ensure all prerequisites are met.
ALLOCATION OF PARENTAL RESPONSIBILITIES
The term “parental responsibility” includes decision-making responsibility and parenting time. Decision-making responsibility is the authority to make legal decisions about the children’s health, education, religion, and general welfare.
Divorce cases include the allocation of parental responsibility. The allocation of parental responsibility cases also include cases where parties are not married but have children. These cases were formerly known as “custody cases.”
Parental responsibility includes determining:
- Whether one or both parties will have decision-making responsibility
- Where the children will live
- How much time the children will spend with each party
In determining parenting time, a judge considers several factors that focus on the children’s best interests, including:
- The wishes of the child’s parents as to parenting time.
- The wishes of the child if he or she is mature enough to express reasoned and independent preferences as to the parenting time schedule.
- The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests.
- The child’s adjustment to his or her home, school, and community.
- The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time.
- The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party’s protective actions shall not be considered concerning this factor.
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support.
- The physical proximity of the parties to each other as this relates to the practical considerations of parenting time.
In determining parental responsibility, the judge must also consider:
- Credible evidence of the ability of the parties to cooperate and to make decisions jointly.
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child.
- Whether an allocation of mutual decision-making responsibility on any one or a few issues will promote more frequent or continuing contact between the child and each of the parties.
In some cases, the court will appoint a Child and Family Investigator (CFI) or a Parental Responsibility Evaluator (PRE) to investigate the children’s best interests. The CFI or PRE will then issue a report with recommendations to assist the court in deciding about parental responsibilities.
Parental responsibility cases also include a determination of child support.