You know you’re unhappy in your marriage, but you don’t know what to do about it. You tried marriage counseling or couples’ therapy, but either your spouse refused to participate or it just didn’t help. Now you’re considering divorce, but the process seems so overwhelming, these are some of the questions you may be asking yourself:
- Will you be able to keep your kids?
- Can you afford to support yourself and your children?
- Do you need a divorce attorney?
- How do you find a good attorney?
- Take a deep breath. It’s going to be fine. You don’t have to do this on your own.
There are plenty of people that have the same questions. They are also the issues that keep many people unhappy in their marriages from taking the next step.
This article will provide a short explanation of how Colorado courts determine child custody and visitation rights; how they divide property, income, and debt; and how you can find and hire a good divorce attorney.
Children and divorce
If you have children and you’re considering divorce, then your children’s safety and well-being are most likely at the top of your list of questions and concerns. In fact, many of the people that come to us for advice or attend our divorce workshops tell us that if they can’t be sure that they will “get their kids,” then they won’t file for divorce.
These days, the term custody is referred to as parental responsibility, and visitation is now called parenting time. They remain the same concepts, just friendlier terms.
The Colorado family law courts’ overriding concern in a divorce is to provide a safe and secure environment for the children. The courts’ uppermost responsibility is the children’s safety, and physical, mental, and emotional well-being and development.
Towards that goal, the courts are required by statute to start every divorce case from the same standpoint; That it is in the best interests of the children (a term you will hear a lot regarding children and divorce) to encourage frequent and continuing contact with both parents unless the court finds that significant parental involvement of either party would endanger the children’s physical health or significantly impair their emotional development.
If there is a question about the children’s safety or well-being, regarding either parent’s responsibilities and/or parenting time, the courts will order the appointment of a neutral Child and Family Investigator (CFI) or Parental Responsibility Evaluator (PRE).
The CFI or PRE must be an individual with the appropriate credentials, training, and independent perspective – such as a mental health professional, counselor, or uninvolved attorney — to investigate, report, and make recommendations regarding the courts’ concerns.
No one can guarantee that you will get sole parental responsibility for your children, or that your spouse will only receive limited or even supervised parenting time. If an attorney makes those promises, steer clear. But the courts take the best interests of the children standard very seriously, and if regular contact or parenting time with either parent poses a threat to the children’s safety or well-being, then the court will investigate the matter, respond appropriately, and incorporate its findings and decisions into the divorce decree.
If you are at least partially dependent on your spouse’s income, then you might believe a divorce is financially impossible. Especially if you plan to have primary parental responsibility of your children and you’ve been out for the job market for a while.
How can you support yourself and your children on your own?
Remember, single parents support themselves and their kids every day. You have skills. You have experience. You had a career before you left the workforce. And depending on your situation, the division of marital property, an alimony award (now called spousal maintenance), and child support order that might a part of your divorce can alleviate your financial burden.
In a divorce, the courts are responsible for dividing the marital assets in a just manner (not necessarily equal) after considering all relevant factors, including the contributions of a spouse as a homemaker, and the economic circumstances of each spouse at the time the division of property will become effective, which is usually the signing of the divorce decree.
The court may also order one party to pay the other spousal maintenance during the divorce proceedings and/or as part of the final decree. Generally, for the courts to order maintenance, the marriage must have lasted at least three years, and the spouses’ combined annual gross income must be less than $360,000. Maintenance is then awarded when:
- After considering the division of separate and marital property, and
- Assessing the standard of living during the marriage,
- One party lacks sufficient resources to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment, or
- One party has primary parental responsibility of a child who makes it inappropriate for the parent to seek employment outside the home.
The spouse seeking maintenance is not required to exhaust his/her marital property, such as selling real estate or depleting bank or investment accounts, before requesting maintenance.
The Colorado statutory guidelines set a presumptive amount and term of spousal maintenance, but courts can deviate from these terms if it finds that the presumptive amount is not reasonable for both parties.
Much like the division of marital property, there are a number of factors the courts consider when determining an award of maintenance, including:
- both parties’ financial resources;
- both parties’ income, employment, and employability, obtainable through reasonable diligence and additional training or education, if necessary;
- the parties’ age and health; and
- the parties’ significant economic or non-economic contributions to the marriage.
Spousal maintenance paid as part of a divorce decree is typically a deductible income-tax expense for the payor, and taxable income to the recipient.
While an award of spousal maintenance hinges on the courts’ discretion and weighing of the parties’ economic situations, child-support awards are much more incumbent, and the process follows strict statutory guidelines. Deviations from the statutory guidelines are rare.
The calculation of child support using the statutory guidelines takes a considerable number of situations into account. In fact, the courts and experienced family law attorneys typically use sophisticated computer software tools to arrive at the final amount. Some of the situations the guidelines consider include:
- The payment of medical insurance premiums;
- Work-related child-care expenses;
- Job-search related child care expenses;
- Extraordinary education expenses such as private schooling; and
- Extraordinary medical or dental expenses.
The statutory guidelines use the appropriate situations to set the total amount of support necessary for the children, then divide that amount in proportion to the parent’s Adjusted Gross Income (AGI) as determined by yet another statute. The adjusted gross income for child support calculations is significantly different than the AGI calculated for federal income tax purposes and can include atypical adjustments, such as for other child support obligations and spousal maintenance payable to the other parent.
When the courts do deviate from the statutory guidelines, they consider a number of factors similar to those found in the division of marital property and spousal maintenance (are you seeing the pattern?) calculations, including:
- The financial resources of the custodial parent;
- The financial resources and needs of the noncustodial parent;
- The standard of living the child would have enjoyed had the marriage not been dissolved;
- The physical and emotional condition of the child and his or her educational needs; and
- The financial resources of the child.
Your friends may have told stories about how their exes’ quit higher-paying jobs to reduce their child-support payments out of spite. If voluntary unemployment or underemployment become an issue, the court has the power to impute income and increase a parent’s AGI to include the amount he/she could be earning if fully employed with his/her skill set and experience.
At the same time the courts enter child support orders, they also allocate the federal tax dependency exemptions and enter orders regarding the maintenance of the children’s health insurance. Child support is not considered taxable income, and it is not a deductible expense for the person paying.
To alleviate concerns about child-support payment enforcement, the court can order that payments be made through the Family Support Registry (FSR), which serves as a bookkeeper and payment conduit, and minimizes controversies regarding whether child support was paid, the dates of payment, and the amounts.
While the courts are likely to follow the statutory child-support guidelines when determining eligibility and payment amounts, no one can guarantee that you will get a certain amount of child support until the divorce is final. If a lawyer promises these results to persuade you to hire him/her, get up and walk out the door.
Finding and hiring attorneys
Once you’ve made the decision to investigate or pursue a divorce, you should decide if you can do it yourself, or if you need a divorce attorney.
Of course, we recommend that you at least consult with an attorney about your situation to unearth the potential difficulties your circumstances present. Robinson & Henry, P.C., offers consultations to discuss the Colorado divorce process, and you can even hire one of our experienced family law attorneys on a limited basis to discuss or resolve specific issues.
If you are weighing the costs and benefits of hiring a competent divorce attorney, consider the following situations that we believe absolutely require experienced legal counsel:
- Your spouse has an attorney, or you believe he/she will hire one;
- You have children;
- You are at least partially financially dependent on your spouse;
- You plan to pursue spousal maintenance;
- The approximate value of you and your spouse’s combined assets is over $500,000;
- You and/or your spouse own a business or business interests;
- You believe your spouse is hiding, or will try to hide, marital assets;
- You believe your spouse has dissipated or recklessly spent marital assets;
- There are domestic violence issues or threats of violence; or
- You believe your spouse will not be cooperative during the divorce.
As you can tell, there are many situations where an experience divorce attorney is necessary. However, the Colorado Judicial Branch does maintain a state family law self-help website that offers guides and forms if you would prefer to do it yourself.
If you decide you need an attorney, the next step is to make sure you will be working with someone you trust, who understands your circumstances, and won’t charge you more than necessary.
When you are searching for prospective attorneys to interview and hire, don’t just listen to the radio and watch television. Just because a lawyer is willing to spend big bucks on advertising doesn’t mean he/she is competent and pleasant to work with.
Ask you friends and family for the names of good attorneys they’ve actually worked with. Don’t just invite recommendations – they might know a couple of lawyers socially, but may have never relied on their legal skills.
Prior to interviewing lawyers, use the following questions to think about what qualifications and characteristics you want with your attorney:
- How much can I afford to pay for legal services?
- What kind of personality do I want from my attorney?
- How much communication do I want from my attorney?
- What type of experience/education would I like my attorney to have?
Also do an “Attorney Search” on the Colorado Supreme Court Attorney Regulation Counsel website to ensure the attorney is licensed in Colorado and that the license has not been suspended.
During the interview, here are some questions to ask and things to think about to get a sense of how professional, client-focused, and courteous the attorney is:
- Does the attorney have a professional appearance?
- Am I comfortable with the attorney’s personality and demeanor?
- Is the attorney polite to office staff?
- Are there other attorneys in the office and/or sufficient administrative staff to manage my case efficiently?
- Does the attorney provide billing options that fit within my budget?
After the interview, think about not only what the attorney said about your circumstances, but what questions he/she asked, and how he/she acted before, during and after your appointment. Here are some thoughts to consider:
- Was the law office well organized and professional?
- Was the attorney’s support staff courteous and respectful?
- Did the attorney seem well-informed?
- Did the attorney provide any opinions or advice during the meeting?
Hiring a good attorney is a lot like finding and hiring a good real estate broker, accountant, or other professional. Find a family member or friend that had a good experience, do some research, and ask the right questions.
Take the next step
If you’re unhappy in your marriage, consider all of your options. You have the right to be happy. If you’ve given your marriage everything you can, but you’re ready for a change, don’t be afraid. Divorce doesn’t have to resemble a horror movie.
By reading this information and using the free resources and tools on our website, you’re already better equipped than a lot people that get divorced every day. You’re ahead of the game!
If you decide to take the next step, we recommend that you at least consult with an experienced family law attorney. A 30- to 60-minute appointment could make a huge difference in how your divorce turns out. For your free, no obligation, consultation call (303) 688-0944.
We hope you will schedule an assessment with one of Robinson & Henry, P.C.’s expert divorce attorneys, but if not, we still recommend you talk to a skilled attorney.
Let us know how we can help.