Divorce
How does the divorce or legal separation process begin?
One party must file a Petition with the Court, which simply sets out the statistical information of the parties, and states that the Petitioner believes that the marriage is irretrievably broken. The Petition states the names and ages of the husband, wife, and all children born or adopted during the marriage; when and where you were married, and when you separated; that the residence requirement has been satisfied; and that your marriage should be dissolved. It asks the Court to divide the property and debts, allocate parental responsibility, and enter orders regarding child support, maintenance, attorney's fees, and Court costs. The wife can also seek to revert to her maiden name.
The other party (the "Respondent") must be served with the Petition and Summons, or sign the Waiver of Service. The Respondent may then file a Response to correct any information provided in the Petition, or to request alternative relief of their own.
Does it matter who files first?
No. There is no advantage or disadvantage to the party who files first; the only difference is that the person who files first is known as the "Petitioner," and the other person is known as the "Respondent."
How much does a divorce cost?
The initial filing fees are $220.00 for the Petition and $106.00 for the Response. Legal costs will depend upon the complexity of your case. If Court hearings are required, or if other professionals (such as appraisers, business valuators, or investigators) are necessary, the costs increase substantially.
Fees will be discussed during your initial consultation; family attorneys charge an hourly rate. A retainer is required to begin your case. A retainer is a set amount of money that is deposited into a trust account and withdrawn monthly to cover the costs of your case. You will receive a monthly statement showing the work done in your case, the time billed for that work, and the amount left of your retainer. Any funds left from your retainer at the end of your case will be returned to you.
Will my spouse be required to pay my attorney fees?
Depending upon the financial circumstances of each spouse, one spouse may be required to pay some or all of the attorney fees of the other spouse. This typically occurs when there is a wide disparity in the parties' incomes or earning capacities.
How long does it take to get divorced?
In order to file for divorce in Colorado, one of the spouses must have lived in this state continuously for at least 90 days. However, if children are involved, it's possible that you may not get orders regarding the children unless they have also lived in Colorado for at least six months.
There is a minimum 90-day waiting period after filing for divorce. Thus, if you settle your case and file a written agreement with the Court within 90 days, then any day after the 91st day the Court can grant your divorce. However, even if the 90-day waiting period is up, your divorce will not be finalized until all issues have been resolved.
The actual timeline can vary greatly depending upon the county in which the case is filed, the issues involved in your case, and whether you are able to settle your case or must go to Court.
What is an automatic temporary injunction?
As soon as the Petition is filed, a temporary injunction and Court order automatically goes into effect; these orders cover both spouses. The automatic provisions are:
- Minor children shall not be taken from the state for any reason without agreement of the parties or Court order;
- Neither party shall disturb or harass the other;
- Marital property shall not be transferred, encumbered, concealed, or in any way disposed of, without the consent of the other party or an order of the Court, except in the usual course of business or for the necessities of life; and
- No health, homeowner's, renter's, automobile or life insurance policies which provide coverage to either of the parties or the minor children or that names either of the parties or the minor children as a beneficiary may be cancelled or modified or allowed to lapse due to nonpayment of premiums except with 14 days advance notification and the written consent of the other party or any order of the Court.
Do I have to wait until the divorce is final to receive Court orders regarding support or use of the family home, or regarding the children?
No. If your spouse is being physically abusive to you or to the children, refuses to provide reasonable support, or refuses to agree to which party will have temporary use of the family home, you may request a Temporary Orders hearing. At that time, the Court may also provide orders regarding use or property, payment of debts, and temporary allocation of parental responsibilities, parenting time, and child support.
When is the divorce final?
The divorce is final either on the day it is granted in Court or on the day the Judge signs the Decree if the divorce is granted by affidavit (by mail).
May I revert to my maiden name as part of the divorce action?
Yes. As a matter of fact, if you are considering restoring your maiden name it is advisable to do it as part of the dissolution of marriage action. It is very easy to restore your maiden name as part of the divorce action but much harder and expensive to do so at a later time. If you do restore your maiden name, you will need to obtain certified copies of your decree in order to change your name with the Department of Motor Vehicles, Social Security administration, banks, and other legal entities.
Property and the Marital Home
Does the Court consider fault when dividing assets and debts, or when determining issues regarding the children?
No. However, dissipation of marital assets may be considered when equitably dividing the marital property.
Should I move out of the marital home?
It is generally the preference of the Court to allow the primary caretaker of the children to remain in the home, however, in the final distribution of property the Court will not automatically allocate the property to the spouse who has had temporary use of the home. Many factors are considered in the decision, including:
- The ability of each spouse to support themselves and the household, as there will be less money to go around now that two households are being supported.
- If the party seeking temporary use of the home does not have the means to pay the associated expenses, a financial order may be sought for payment of these expenses.
- If domestic abuse is involved, it may be possible to get a Court order excluding the perpetrator from the marital home.
Child Custody
At what age can a child decide which parent they want to live with?
In Colorado, there is no specific age at which a child can decide which parent they want to live with. A parent can file a motion with the Court requesting a modification to the parenting agreement, in which case the child's wishes can be considered by the Court. However, there is no guarantee the judge will rule in favor of the child's request. To what extent the Court takes the child's wishes into consideration depends upon the child's maturity, the reasonableness of the request, and to what extent the Court perceives the child's wishes as his own and not a request that has been influenced by a parent.
Child Support
When does child support start?
Child support commences after the physical separation of the parties and the filing of the Petition for Dissolution of Marriage, or service upon the Respondent, whichever date is latest.
When may I modify my child support?
You may modify child support anytime there is a "substantial and continuing change of circumstances" and application of the child support guidelines would result in more than a 10% change in the amount of child support being paid.
When does child support end?
Child support in the State of Colorado terminates upon the emancipation of a child. A child emancipates upon attaining the age of nineteen, joining the military, marrying, or otherwise emancipating. There is no Colorado law requiring payment of college expenses for a child.
What is spousal maintenance?
Maintenance, formerly known as alimony, is the financial support provided by one spouse for the other. Maintenance may be awarded when:
- One spouse assists the other in obtaining an education
- One spouse requires time or training to become employed
- There are health issues and an inability to work, or
- There is substantial discrepancy in the incomes of the parties
While there is a formula for the amount of temporary maintenance, there is no set formula to determine the appropriate amount of permanent maintenance, if any. Some factors that are considered include the length of the marriage, the ability of each spouse to support him or herself, the age of the parties, and the mental and physical health of each party.
When you're ready to move ahead with a divorce, a child custody agreement, or a child support matter, contact the Lakewood law office of Diane S. Freed, P.C. We are happy to assist you.
