Divorce brings a tidal wave of emotions, among them uncertainty. Who will keep the house? Where will my children live? Will I have to pay alimony? This article answers some of your most pressing questions about getting divorced in Colorado.
No, the division of assets under Colorado law is an equitable division. It’s important to know that equitable does not mean equal. So, it’s unlikely assets will be divided down the middle.
There are arguments for both contributions as well as need. Each argument could make the proportional allocation of marital assets and debts something other than 50/50. C.R.S. § 14-10-113
For example, say one person contributes more to the marriage. Alternatively, maybe one person has a limited capacity to earn or generate income after the marriage. The person who contributed more could receive more, or the person who contributed significantly less could receive more because they can’t recover from the divorce. The results will be either a consequence of the parties compromising in settlement or a judge’s order after a trial.
Hidden assets are a common concern. Fortunately, Colorado law requires mandatory financial disclosures. Both parties are required by to disclose all their assets as well as all their liabilities, regardless of where they are titled or held.
If, after reviewing your spouse’s mandatory disclosures, you still believe that your spouse is hiding assets, there are steps you can take. For example, maybe you have statements from the accounts that are not being disclosed. Your attorney can then subpoena the records and use that information in court to impeach your spouse during cross-examination. Your attorney may also recommend a forensic accountant to investigate concerns about hidden assets.
Additional discovery options, such as interrogatories and document production requests, are available. Your attorney can also take a deposition of your spouse to try to expose those hidden assets.
It is important not to lose track of the bottom line, though. A cost-benefit analysis can help put in perspective whether it is worth it to go through these additional steps. Additional discovery can be time-consuming and expensive, so it might end up costing more than the hidden assets are worth to try to track them down. In that case, it may be in your best interest not to go down this path. However, there are certainly means within the Colorado rules of civil procedure and Colorado domestic relations law to discover hidden assets.
You are certainly allowed to move if you feel so inclined, but that answer becomes more complicated if kids are involved. You can move out of state, but you cannot move out of state and take your kids with you unless you have the permission of the opposing party or a court order once a divorce is initiated.
You can not get a court order allowing you to relocate with the children out of state immediately after filing a divorce. If the parties are unable to agree, the living arrangements of the children and the parenting time is a decision the judge makes after hearing testimony and reviewing evidence at a contested hearing. The judge makes this decision based on the best interest of the children.
Oftentimes, the judge will rely on expert witnesses to investigate and evaluate so they can make recommendations to the court in the best interests of the children.
Many people think that if you have been together and lived together for seven years without getting married, then you are now common-law married. However, there is actually no threshold or time limit for common-law marriage in Colorado. Rather, the standard is whether you came to an agreement with your former spouse that you considered yourselves married and then held yourselves out to the public as being married.
An attorney will look for evidence of your common-law marriage by asking your employer, your family members, neighbors, friends, church community, etc.—in other words, the people who know you best and would be most likely to know whether you hold yourselves out to be husband and wife. Your reputation in the community will indicate whether you hold yourselves out to be married, rather than what one party says.
The court will also look at other factors such as filing taxes as married jointly, estate planning, etc. as evidence of a common-law marriage. Based on recent case law, it is becoming more difficult to establish that a common-law marriage exists, which is a factual determination that will be made by a judge.
Infidelity is not illegal, but stalking people is. Be mindful when “tracking your spouse’s activities” so that you do not risk a protection order and/or criminal charges being filed against you.
Ultimately, Colorado is a no-fault divorce state. You do not need to prove grounds for a divorce. All that is required is for one party to allege that the marriage is irretrievably broken. Colo. Revised Statute § 14-10-102 Therefore, you do not need to allege or prove infidelity or any other grounds for a divorce beyond that. Simply file the paperwork to get the process started.
If you suspect that your spouse has spent significant marital funds on the person he or she is cheating on you with, that could constitute marital waste. A judge could take this into consideration when determining a fair and equitable division of marital assets and debts.
Part of the court’s job in a divorce case is to ensure the parties receive an equitable division of the marital assets. To the extent that one spouse doesn’t have the capacity to meet their reasonable needs, spousal maintenance (alimony) would be available. C.R.S. 14-10-114
Spousal maintenance is intended to allow the down-side party to potentially raise their post-divorce standard of living to that which they enjoyed during the marriage. If there just isn’t sufficient income or assets available to do so, then at least the spouse can avoid resorting to government assistance.
Also, if you cannot afford to pay for an attorney, but your spouse could and pay for theirs, too, a judge may award you attorney’s fees.
You should at least have an assessment with a lawyer to help with your review of the financial disclosures, proposed parenting plans, and proposed division of assets and debts. This is true—and maybe particularly so—even if everything is agreed upon.
You may not need an attorney to appear in court with you if everything is agreed upon and fair, but you will need an attorney to help you understand what is fair under the law.
An attorney will also make sure you are not taken advantage of or miss benefits or arguments which could benefit your case. It is important to understand that your spouse’s attorney is looking out for your spouse’s best interests, not yours. This is why one attorney cannot represent both parties in a divorce pursuant to the Colorado Rules of Ethics.
If everything isn’t agreed upon, then you need an attorney to understand whether the proposals are fair. If you end up in trial over the disputed issues, you’ll need an attorney to go to trial with you.
Grandparent visitation is very difficult to get in Colorado. The U.S. Supreme Court held in the 2000 case Troxel v. Granville that fit parents are entitled to a presumption that they act in the best interest of the children. So if a grandparent is trying to preserve their right to continue to see the child, or get any sort of parenting time, they will have to fight hard to show the parents are not fit to make decisions in the best interest of the child.
Quite often, military divorces are more difficult because you are not only dealing with Colorado state statutes, but also with federal statutes.
Your lawyer needs to understand how those statutes essentially work together in order to determine certain decisions. For example, military retirement benefits division is governed by federal statutes. Other federal statutes govern what happens regarding parenting time if one of the spouses is deployed.
So, all in all, military cases can often be—and often are—much more complicated because of the overlap of state and federal statutes.
Level-headedness and attention to detail. These traits go hand in hand because a difficult spouse is going to cause a spike in the emotional intensity during an already highly emotional event. You need an attorney who won’t get sucked into the emotional power plays and lose awareness. An attorney that loses awareness and cannot maintain focus becomes an ineffective advocate.
To borrow a popular phrase: “You do you.”
If your spouse refuses to engage in the divorce process, you actually have a fairly easy road. Simply follow the rules, complete the documents, and attend the required meetings. You can still get a divorce when your spouse won’t engage at all, as long as they have been personally served with the initial pleadings. As always, there are exceptions, but generally this circumstance is better than the partially participating spouse.
The spouse who is only partially participating can create much more complication. Maybe your spouse only participates when it is convenient or is seen as personally valuable to them. This can increase the volume of work for your lawyer and therefore the cost of litigation. That behavior can even get the courts quite frustrated. Your attorney can help move the proceedings along and ask for attorney’s fees if your spouse causes unnecessary delay.
If your spouse is not paying court-ordered child support or alimony, you have a couple options for enforcement. First, you can file an income assignment to ensure that future payments are made.
You can also submit a verified entry of support judgment to recover money that has been previously owed. This allows you to use normal collection devices such as wage garnishments, bank levies, and liens.
Finally, you can initiate a contempt action. However, these are very difficult and complicated legal matters. Contempt can be remedial or punitive. Remedial contempt is designed to compel compliance with the order. Punitive contempt is designed to vindicate the dignity of the court, and is very sparingly used. Because of the complexity of contempt proceedings, it is imperative to speak with a lawyer before engaging in this type of litigation.