Thinking about getting a divorce? For many people, a divorce (known as a “dissolution of marriage” under Colorado law) is a stressful, difficult, and life-changing process. The knowledgeable attorneys at Robinson & Henry have years of experience in helping clients navigate the tricky waters of divorce. While every divorce situation is different, you can avoid a divorce disaster by knowing these 10 things.
1. Changing Parenting Time, Child Support, & Alimony
Colorado has strict limits on your ability to change the terms of a divorce after the divorce decree has been finalized. The message here is simple: if you do not do your divorce right, you cannot change it without a lot of trouble and expense.
When all the issues surrounding a divorce have been resolved, either by agreement of the spouses or by a court ruling, the court will issue a divorce decree. This divorce decree is the formal termination of a marriage. The decree is meant to be the final resolution of all divorce-related issues, such as child custody or alimony payments. Divorce decrees are difficult to change.
After a final decree is issued and the time to appeal has lapsed, divorce decrees and related provisions regarding maintenance or child support payments can only be modified upon a showing of changed circumstances so substantial and continuing as to make the terms unfair (Colorado Revised Statute 14-10-122).
In other words, changing your financial obligations stemming from a divorce is a very difficult process. Furthermore, the provisions of a divorce decree related to child custody or decision-making responsibility cannot be modified for at least two years following the issuance of the decree, unless there is a risk to the child’s health or development.
Finally, you can create a “contractual non-modifiable” alimony agreement. If you do so, the court loses jurisdiction, and you are likely stuck with the agreement you have made forever. You can neither increase nor decrease the alimony payments.
As such, it is important to ensure that what you settle on is something that you can live with for the long term.
2. Implications of Leaving the Marital Home
One of the biggest issues relating to spouses who face divorce is what to do about the marital home. The home is often the most valuable asset a married couple owns. It can also be the source of powerful emotional connections to both spouses.
It is very important to consider the implications of moving out before you actually do so. There are two major areas of impact to consider related to moving out of the marital home: financial impacts and child custody impacts.
Under Colorado law, the marital home is treated no differently than other real estate interest with regards to who gets what after the divorce. Even if a spouse initially moves out, that spouse may still keep the home when the divorce is finalized.
When determining who gets the marital home, the court takes many factors into account, including:
- Best interests of minor children
- Contributions to the home (both financial and as a homemaker)
- Value of property awarded to each spouse
- Economic circumstances of each spouse
Additionally, Colorado law provides for the payment of temporary maintenance and temporary child support from the higher-earning spouse to the lower-earning spouse while the parties are separated.
If a party decides to move out during the separation period, there will usually be temporary support orders requiring payment for maintenance and child support. These payments, combined with the cost of maintaining two residences, can have serious financial implications.
It is important to meet with an attorney to consider all of the costs related to moving out before taking this step.
Child Custody Implications
When divorcing parents continue to live in the same home, the decisions related to the care of minor children will generally stay the same. However, when one party moves out of the marital home, the parties must come up with a new parenting plan which can cause serious issues in divorce proceedings.
If a spouse decides to move out of the marital home, he or she should work with an attorney to ensure that move is not characterized as abandonment. Even though Colorado is a no-fault divorce state, abandonment can have serious impacts for a parent in child custody proceedings.
By meeting with an attorney, a divorcing parent can help determine what he or she must do to better prepare for child custody issues and avoid the abandonment characterization.
3. Avoid Mediation Mistakes
Outside of formal family court law proceedings before a judge, divorcing parties can also seek alternative dispute resolution (ADR) via negotiation, mediation, or arbitration. ADR processes are often more efficient and allow for the parties to have more control over the outcome of their case.
In mediation, a neutral third-party facilitator negotiates between the parties to help them reach an agreement. Parties can seek mediation on their own, or the courts can require the parties to mediate.
Other agreements, such as prenuptial agreements, might also require mediation. Mediation has become a quite common method to resolve divorce disputes in Colorado.
While mediation has its benefits, most notably that it tends to cost less, it also comes with risks. Some risks include:
- Parties lacking all the relevant information to make smart decisions
- Unequal negotiating power results in unfair agreements
- Mediator has inadequate knowledge of the situation or relevant Colorado law
Mediation does indeed have its benefits, but it is not a perfect process. It also does not guarantee a fair result. Having an attorney at mediation can help you favorably resolve resolve your case.
4. Not Fighting for Custody
Custody and child care arrangements are often big sources of stress and conflict in a divorce. The “best interests of the child” is one of the enduring themes in American family law, and it may have major impacts on the outcome of your divorce.
As discussed above, the actions you take before a divorce is finalized can influence the final divorce decree. A parent could leave or become absent just to avoid confrontation with the other spouse, but that could hurt them later in the process.
It’s also important to work through conflicts as they arise so children do not become pawns in a fight between parents.
It is important to maintain a presence in the child’s life and to fight for custody. Failing to do so could result in unfavorable custody agreements that alienate a parent from a child with little recourse to modify these agreements.
5. Do the Math
Divorces are an expensive process, so it’s essential that you “do the math.” You’ll want to know going in what the divorce will cost you.
A central part of divorce is the disposition of property. Courts determine what is and what is not property and whether it is marital or separate property. The court will ultimately divide the marital property between you and your spouse.
Think about all of your individual and jointly-owned assets. Give some thought to what property you need versus what you are willing to give up.
You’ll also want to estimate your future income and how much you will need to live moving forward. In Colorado, alimony payments are often determined by a mathematical formula outlined in state law. A knowledgeable attorney can help you come up with a rough estimate of the alimony maintenance payments.
Finally, consider additional costs, such as attorneys’ fees and divorce filing fees.
6. Be Smart About Your Money
Don’t hide assets. Parties will sometimes try to hide assets to avoid losing them to a divorce. However, the divorce process requires you to make a full disclosure of your income, assets, and debts. A formal court discovery process usually reveals hidden assets. Hiding assets can result in serious penalties.
Be aware of dissipating marital assets. Once a divorce proceeding has been initiated, spouses cannot dissipate marital assets. Marital asset dissipation occurs when one spouse transfers any marital property outside the usual course of business or the necessities of life and without the other spouse’s consent.
A claim of dissipation of marital assets can have serious impacts on the divorce proceedings. While not every loss of funds or loss of value constitutes dissipation, it is important to be aware of this restriction and to consult an attorney regarding any transaction you fear may give rise to such a claim.
Consider the tax implications. Personal income tax rates are different depending on whether you are single, married-filing separately, or married-filing jointly. Single individuals pay more in taxes than married couples, and this can be an incentive for couples to stay together.
Additionally, property settlements as a result of divorce – alimony payments, etc. – all receive slightly different treatment under the tax code. It is important to consider all of these tax consequences when contemplating or going through with a divorce.
Remember to change your will. One thought more daunting than divorce is death. However, it is important to remember to adjust certain aspects of your estate plan after divorce, especially if you have children with your ex-spouse.
When your divorce is final, remember to redo your estate plan, change the beneficiaries of your life insurance policy or retirement plan, and the payable on death designation of a bank account.
7. Create a Detailed Parenting Plan
As mentioned earlier, children represent one of the greatest challenges facing divorcing spouses during the divorce process and after the final decree.
Under Colorado law, the term “custody” has been largely replaced with the term “parental responsibilities.” Parental responsibilities cover the assignment of parenting time and the assignment of decision-making responsibilities.
Parents are encouraged to create a written document, or parenting plan, that assigns parental responsibilities. If the parties cannot reach an agreement or the court rejects their proposed plan, the court can order a parenting plan that is in the best interests of the child.
Having a detailed, written parenting plan helps avoid disputes after the divorce and ensures adherence to the arrangements.
There are some obvious issues that will be addressed in every parenting plan. For example, custody sharing and how custody will be transferred. However, a truly successful parenting plan addresses many less-obvious issues related to the growth and development of the child.
Even if the child is very young, it is important to think about everything that could fuel an argument with regards to your children. Below are common issues that deserve some consideration:
- Where will the child attend school?
- At what age can the child get a mobile phone?
- Whose phone plan will the child be on?
- When can the child begin to drive?
- Who will teach the child to drive?
- Will the child have a car?
- Who will buy the child a car?
- Who will pay for college?
By addressing these kinds of issues in the parenting plan, the divorcing parents can avoid future conflicts and needless court time.
Finally, parents may want to consider an alternative form of child support as part of the divorce negotiations. For instance, instead of paying a monthly amount of money to the other spouse for child support, one spouse could agree to pay medical bills or educational expenses.
8. Divorce is More Than Just a Legal Battle
A divorce is much more than just a fight over who gets what and how much it will cost. A divorce is often accompanied by emotional trauma that results in major life-changing decisions. Think about the impact of the divorce on your own emotional and psychological health. Think about seeing a therapist. Consider how the divorce will affect your children, and try to empathize with what your spouse is experiencing.
Also, be realistic about your expectations, and do not to make the divorce into a personal attack against the other spouse. While giving in to make the divorce go away can have a negative impact on you, persistent aggressive behavior can also result in damaging effects.
9. Do I Need an Attorney?
By law, you are not required to hire an attorney to file for divorce. You may not need an attorney if children are not involved, the marriage is short, and both parties agree to the major issues.
However, an attorney may be necessary in certain situations.
If your spouse has an attorney, you should hire one, too. It can be difficult for an individual facing emotional stresses to effectively deal with a seasoned divorced attorney across the table. This is especially true when the divorce involves children or complex financial concerns.
Often, a more affluent spouse will try to dissuade you from getting an attorney. This may be a red flag that your spouse could try to take advantage of you through the divorce process. Additionally, if you fear that your spouse is lying or concealing assets, you may want to consider hiring an attorney to better protect your interests.
In situations involving abuse (either spousal, child, or substance), it is critical to hire a lawyer to ensure you get the protection you need during the divorce.
Few experiences are more difficult or stressful than working out the details of a divorce, such as parenting time, child support, property division, and alimony.
The support and advice of a knowledgeable, caring family law and divorce attorney can make all the difference, not only in the outcome of the proceedings, but also in your comfort and well-being after the divorce. While hiring an attorney is not a requirement, a divorce attorney can often be a valuable support system that will ensure your interests are protected throughout a difficult emotional process.
10. How is Alimony & Custody Awarded in Colorado?
Alimony, referred to as spousal support or maintenance in Colorado, is given to a spouse only when he or she lacks sufficient income to provide for reasonable needs. However, your reasonable needs may differ from that of your neighbor or colleague. For that reason, it is difficult to give an average maintenance number.
Colorado courts tend to balance several factors in reaching an amount.
- Your needs and abilities
- Your future earning capacity
- The duration of your marriage
- Your standard of living
Colorado follows a specific alimony table based on the length of any given marriage. This provides judges a general idea of how large an alimony award they can give. For example, a marriage lasting for 36 months will usually provide 31 percent of gross income for 11 months. In marriages lasting 20 years, Colorado courts may award 50 percent of gross income for 10 years. With these factors in mind, Colorado judges make a determination based on what is fair and equitable to both parties.
Many spouses find themselves in a predicament after taking time off from school to work their spouse through college. This may create debt obligations, delay education and put a spouse at a severe disadvantage in terms of earning capacity.
Likewise, you may be concerned that a judge will not understand your lifestyle. You may worry that reasonable needs could mean minimum wage and survival funds to a judge. An experienced attorney will be there to ensure your needs are met and address your questions and worries.
Custodian Visitation (Parental Responsibility)
Custody in Colorado is called allocation of parental responsibility. As with maintenance, there is no fixed rule to determine how much parental responsibility a Colorado court will award.
In any given case, a court may appoint someone to prepare a parenting time recommendation to the court. This person will ask you questions, walk through your home, talk to your children, and make sure your children have adequate living arrangements.
This court-appointed representative will report back on the child’s wishes, interactions with you, adjustment to their current home, etc. Then, the court-appointed representative will report to the court which parent would be best for decision making responsibility.
Rest assured, the judge is only interested in what is best for your child. Still, what about your wishes and interests? Shouldn’t you have a say in what happens to your children? An experienced attorney can make sure that your knowledge and experience with your child can be taken into account when this report is submitted, since you know your children best.
Don’t find yourself lost in a war filled with complex laws, difficult terminology, and emotional turmoil. Robinson & Henry will guide you through the tricky waters of divorce to ensure you and your children arrive safely on the other side.
To schedule a case assessment, call us at 303-688-0944 or click here.