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 to navigate the tricky waters of divorce. While every divorce situation is different, you can avoid a divorce disaster by knowing these 10 things.
1. Parenting time and child support determinations can be difficult to undo, and maintenance (alimony) payments may be impossible
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. It is very important to take the divorce process seriously and to consider all of the ramifications of a divorce decree.
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 and is meant to be the final resolution of all divorce-related issues, such as child custody or maintenance payments (also known as “alimony”). Once the divorce decree is issued, it is very difficult to change.
After a final decree has been issued and the time for appeal has elapsed, 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” maintenance 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 maintenance. As such, it is important to ensure that what you settle on is something that you can live with for the long term.
2. Consider potential implications before moving out
One of the biggest issues relating to spouses facing divorce is what to do about the marital home. The home is often the most valuable asset that a married couple owns and can 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 interests with regards to who gets what after the divorce. Even if a spouse initially moves out, that spouse might 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 any minor child
- Contributions to the home (both financial and as a homemaker)
- Value of property awarded to each spouse
- The 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 orders requiring payment for maintenance and child support. These payments combined with the costs 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 Impacts
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 (https://dictionary.law.com/Default.aspx?selected=1329), 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 and impartial third-party facilitates negotiations between the parties to help the parties 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 quite common as a method of resolving divorce disputes in Colorado.
While mediation has its benefits, most notably that it tends to cost less, it also comes with risks. Some common risks include:
- Parties lack all the relevant information to make smart decisionsUnequal negotiating power results in unfair agreements
- Unequal negotiating power results in unfair agreements
- Mediator has inadequate knowledge of the situation or the relevant Colorado law
It is important to understand that mediation has its benefits, but it is not a perfect process and does not guarantee a fair result. You should come to a mediation prepared with what you need to form a divorce plan, and an attorney that can help you favorably resolve your case.
4. Not fighting for custody
Child care and custody 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 that you take before a divorce is finalized can have major impacts on 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 that the children do not become pawns in a fight between parents.
It is very 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
You know why divorces are so expensive? Because they’re worth it. ~Henny Youngman
All kidding aside, there is little doubt that divorces, especially contested ones, are an expensive process. Consider the cost when going through a divorce. To prepare for the divorce process, it is essential to “do the math” and figure out what you have.
When going through a divorce proceeding, both parties must be prepared and knowledgeable. Each should know what assets they have going into the divorce. Consider additional costs, such as attorneys’ fees and divorce filing fees. Being prepared is very important.
A central part of divorce is the disposition of property. Courts will determine what is and what is not property, and if the the property is marital or separate property. They will ultimately divide the marital property between you and your spouse.
You must consider all of your individual and jointly-owned assets. Think about what property and rights you need versus those that you are willing to give up. Estimate your future income and how much you need to live moving forward. In Colorado, alimony payments are often determined by a mathematical formula outlined in state law, and a knowledgeable attorney can help you come up with a rough estimate of the alimony maintenance payments (link to alimony calculator).
Given that money is a central concern to most divorces, it is very important to be prepared and understand exactly what you have, what you’ll need, and what you can give up.
6. Be smart about your money
In addition to knowing what assets you have now and what you will need in the future, it is important to make smart financial decisions throughout the divorce process. Some important actions to consider include:
Don’t try to hide assets. The divorce process requires that you make full and complete disclosure of your income, your assets and your debts. Parties will sometimes try to hide assets to avoid losing them to a divorce. However, a formal court discovery process will usually reveal hidden assets through a subpoena, and hiding assets could 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 consent of the other spouse. When one party makes a claim of dissipation of marital assets, this can have serious impacts on the divorce proceedings. While not every loss of funds or loss of value will constitute dissipation, it is important to be aware of this restriction and to consult with an attorney regarding any transaction that you fear may give rise to a claim of marital asset dissipation.
Consider the tax impact of divorce. 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 – maintenance 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.
Don’t forget to change your will. One thought that is more daunting than divorce is death. However, it is very important to remember to adjust certain aspects of your estate plan after divorce, especially if you have children with your ex-spouse. After your divorce is final, don’t forget to redo your estate plan, and to change the beneficiaries of your life insurance policy or retirement plan, the payable on death designation of a bank account.
7. Create a very detailed parenting plan
As mentioned earlier, children represent one of the biggest challenges facing divorcing spouses both 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, to work out the assignment of parental responsibilities. If the parties cannot work out a plan or the court rejects their proposed plan, the court can also create 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 plan. There are some obvious issues that will be addressed in every parenting plan, for example, custody sharing or how custody will be transferred. However, a truly successful parenting plan will address 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 a fight with regards to your children. We have listed some common issues below, but you should try to think through them with your own lifestyle and children in mind:
- Where will the child attend school
- What age can the child get a mobile phone
- Whose phone plan will the child be on
- When the child can start driving
- Who will teach the child to drive
- Whether or not the child will have a car
- Who will buy the child a car
- Who will pay for college
By addressing these kinds of issues up front in the parenting plan, parties can avoid conflicts and needless court time later.
Additionally, parents may want to consider some form of alternative child support plans as part of the divorce negotiations. Instead of just paying a monthly amount of money to the other spouse for child support, for example, one spouse could agree to pay medical bills or educational expenses.
8. Understand that 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 and 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. Be sure to consider the effect of the divorce on your children and try to empathize with what your spouse is going through.
Also, it is important to be realistic about your expectations and not to make the divorce into a personal attack against the other spouse. While just giving in to make the divorce go away can have negative impacts, it is also important to consider the potentially damaging effects of persistent, aggressive behavior.
The experienced attorneys at Robinson & Henry have helped clients through the challenging legal issues surrounding divorce and they understand the emotional trauma that often comes along with the process.
9. Do I even need an attorney?
By law, you are not required to hire an attorney to file for divorce. You may not need an attorney if no children are involved, the marriage is short, and both parties agree to the major issues.
However, an attorney may be a very valuable asset and may be necessary in certain situations. If there is an attorney on the other side, you should hire an attorney. 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 may 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 very important to hire a lawyer to ensure that you get the protection you need during the divorce.
“I came to James after another lawyer had withdrawn representation. I basically had to start the dissolution of marriage proceedings over, and James understood the situation and quickly moved to an acceptable resolution.
James provided clear and concise communications and excellent counsel.” ~Kirk B. Littleton, CO
Few experiences are more difficult or stressful than divorce, and working out the details of child custody, child support, property division and maintenance. 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 do Colorado courts typically award alimony (maintenance) and parenting time (custody and visitation)?
Maintenance 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 including: your needs and abilities, your future earning capacity, the duration of your marriage, and your standard of living.
Colorado does follow a specific table based on the length of any given marriage to give judges a general idea of how high they can go, and you can use our maintenance calculator to get a sense of where your award might fall. 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. Colorado courts have wide latitude, and there is no specific formula for all cases. Your case is unique, and no two maintenance awards are the same. 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 can help guide you through the tricky waters of divorce and help you ensure that you and your children arrive safe and well cared-for on the other side. To schedule a free consultation, call us at 303-688-0944.