Q&A With Family Law Attorney James R. Garts III

October 1, 2016 | Bill Henry


Picture of family law attorney James Garts

Do the courts always divide assets in half 50/50?

No, the division of assets under Colorado law is an equitable division. There are arguments for both contributions as well as need, each of which could make the proportional allocation of marital assets and debts something other than 50/50. Say one person contributes more to the marriage, or alternately one person has a limited capacity to earn or generate income after the marriage. It could be the person who contributed more receives more or it could the person who contributed significantly less receives more because they can’t recover from the divorce. The results will be either a consequence of compromise of the parties in settlement or a Judge’s Order after a trial.

My spouse makes all the money, I cannot afford a divorce, my spouse said I would lose everything, Is that true?

Part of the courts job in a divorce case is to ensure the parties receive an equitable division of the marital assets and to the extent one party doesn’t have the capacity to meet their reasonable needs, spousal maintenance (alimony) would be available. Spousal maintenance is intended, both to allow the down-side party to potentially to raise their post-divorce standard of living to that which they enjoyed during the marriage, or if there just isn’t sufficient income or assets available to so, then at least to avoid their having to resort to government assistance.

Does my child get to choose who they live with?

Whether a child has input upon where and with whom they reside depends highly on the child’s age and maturity as it relates to their ability to express a reasoned preference for their parenting schedule.

The child doesn’t get to decide, but the extent of the child’s input on where he wants to stay is a matter of whether the child’s rationale is reasonable to the Court and the parties. For example, A child may want to stay somewhere that is more comfortable financially, or more comfortable emotionally, but for proper development, the Court and/or the parents may require that the child need spend time in both households and with both parents under Colorado’s best interest standard.  Alternately, the child may want to reside primarily with a parent who is unhealthy for the child’s emotional development.  In such cases the child’s wishes may be ignored entirely and the Court Order that the child’s time with such parent may even be supervised by a mental health professional.

My spouse has an attorney and says I do not need one, is that okay? why/why not?

You need to 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. It may be that you do 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 and to assist to make sure you are not taken advantage of or miss benefits or arguments which could benefit your case

If everything isn’t agreed upon then you need an attorney to understand whether the proposals are fair, and if you end up in trial over the disputed issues, you’ll need an attorney to go to trial with you. It is highly advisable to have an attorney with family law trial experience go to trial with you.

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