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Colorado Springs divorce, Colorado Springs, divorce, dissolution of marriage, declaration, invalidity, declaration of invalidity, annulment, legal separation, allocation of parental responsibilities, parental responsibilities, parental responsibility, child, custody, child custody, children, parenting time, visitation, child support, spousal maintenance, maintenance, alimony, child support enforcement, alimony enforcement, assets, IRA, 401K, KEOGH, PERA, retirement pension, divide pension, pension division, pensions, pension, Army, Air Force, military, disposable retainer pay, civil service, TSP, bank account, bank accounts, savings, savings accounts, checking, checking account, checking accounts, certificate of deposit, certificates of deposit, CD, deposit, deposits, bank deposit, bank deposits, motor vehicle, real property, real estate, house, home, residence, family, investment, investments, stocks, bonds, property division, debt division, asset division, disposable retainer pay, TSP, property division, property, debt division, debt, division, domestic abuse restraining order, domestic abuse, restraining order, restraining orders, TRO, PRO, domestic violence, criminal charges, criminal defense, family law, Colorado Springs, Colorado, El Paso County, courts, court, lawyer, attorney
It exists in Colorado. If you are common law married, to end the marriage you must file for dissolution of marriage - the marriage is as lawful as if you had become married before a minister, judge or magistrate. Please refer to the Common Law Marriage page for more detailed information.
Either the husband or wife must be a legal resident of Colorado for at least 90 days before you can file for divorce or separation. Legal residency, called domicile, is not the same as simply living here. A person acquires legal residence by having significant contacts with the state. One party must intend to permanently reside here, or return here after all travels are done. Some of the objective indicators are: Colorado driver's license, Colorado automobile registration, paying Colorado state income taxes, registration to vote in Colorado, banking in Colorado, & home ownership or having executed a lease. In Lyons v. Eagan, 110 Colo. 227, 132 P.2d 774, the Colorado Supreme Court quoted with approval from Rapaljae & Lawrence's Dictionary the following: "The distinction between mere residence and domicile must be borne in mind. The former is used in law to denote that a person dwells in a given place; the latter is the legal home of a person, or that place where the law presumes that he has the intention of permanently residing although he may be absent from it." Put simply, the concept is "ET Phone Home - Hooome." Legal residence is required. If neither the husband nor the wife are a Colorado legal resident, Colorado courts do not have the power to grant a dissolution of marriage or legal separation. If you are not a Colorado legal resident and have no intention of becoming a Colorado legal resident, you must seek a dissolution of marriage in your home state. To be a Colorado legal resident, military personnel must claim Colorado as their home of record. If Colorado is not presently the home of record, Form DD-2058 affidavit of residency may be found at a military finance office or refer to above link for PDF file. Free Acrobat Reader Download The form must be filed with the military finance office to cause Colorado state income taxes to be withheld. I have had military clients inquire whether they could file the Form DD-2058, temporarily claim Colorado as the home of record while the divorce case is pending, then switch back to a state which has no state income tax. NO. That will jeopardize the court's jurisdiction and validity of the decree. I will not participate in subterfuge.
these are merely labels
The only grounds in Colorado are incompatibility; we are a no fault state. CRS 14-10-106 The term used in your case will be that the marriage is irretrievably broken. In other words, you can't patch up the marriage, even with counseling. You need not and will not be allowed to tell the court the "bad things" your spouse has done. Under Colorado law, fault is not admissible except in very limited circumstances in disputes involving children. The name of a third party having an affair with you or your spouse is not admissible. Naming a third party in a divorce is a misdemeanor (crime) punishable by a $1,000 maximum fine and or 90 days maximum jail.
Breach of contract to marry, alienation of
affection, criminal conversation and seduction (adultery lawsuits) are not
possible in Colorado. Even threatening to bring an adultery civil lawsuit is a
crime punishable as indicated above. CRS
13-20-201, et. seq.
One of you will file a petition asking the court to dissolve the marriage and decide the issues of parental responsibility allocation, parenting time, child support, spousal maintenance, division of property and division of debt. That person will be called the petitioner. The petition and a summons will be served upon your spouse. The summons merely tells your spouse he or she is being sued for divorce. Service means that the papers will be handed to your spouse, or perhaps published in the newspaper under limited circumstances. Due process (fairness) requires you to inform your spouse that you are requesting a divorce. Service of process on an average costs between $35 and $50, but can vary. If your spouse is willing to sign a paper saying he or she received the legal documents, you can use the mail and there is no charge for service of process. That is called waiver and acceptance of service of process. Spouses usually don't sign; I don't recommend attempting waiver of service. Don't know the present whereabouts of your spouse? It is better to personally serve the spouse, but if he / she can not be found, service may be completed by publication. An affidavit of good faith effort to locate must accompany the motion to publish, including efforts to skip trace. It may be necessary to utilize the services of a private investigator to locate the spouse. Publication is the last resort. Court orders may be subject to collateral attack and publication vests the court with in rem (subject matter) jurisdiction only - limitation of the court's powers. The person who is sued will be called the respondent. He or she is required to file a response with the court. Other than the difference in the filing fee, it does not matter who is the petitioner and who is the respondent. It is not a race to the courthouse. After filing and service of process on the respondent, by law there is a mandatory 90 day waiting period before the divorce can be finalized. This is a cooling off period. CRS 14-10-106 Upon commencement of the divorce, the following injunction enters automatically by operation of law. CRS 14-10-107
If the facts warrant, the court may grant a request to actually impound assets or money and take them out of the control of yourself or your spouse. If you have children, in El Paso County both the husband and wife will be ordered to attend one parenting class during which a video will be shown. You need not attend together. It does not matter whether you agree on all issues regarding the children or not; the parenting class is mandatory before final decree enters.
You may have a temporary orders hearing, at which time the judge will allocate parental responsibility and enter orders regarding parenting time, child support, spousal maintenance, and who may use property or must pay debt temporarily while the case is in progress until final orders are entered. That hearing is frequently about 2-4 weeks after filing. The court's docket will determine how soon the hearing can be held after filing. The attorney will try to settle your case during the 90 day waiting period. If agreements can be reached with your spouse, the attorney will prepare a detailed written agreement. That agreement will eventually become part of the final decree (order).
If
a written settlement agreement has been made and filed: If the parties can not agree, the case will enter the contested phases of divorce. This may include child custody evaluations, psychological evaluations in child dispute cases, or real estate or personal property appraisals and mediation. Each party may be required to produce copies of billings, canceled checks, bank statements, pension or other financial documents. Each party is required to file a detailed financial affidavit. A disclosure certificate must be filed with the court reflecting that each have provided numerous financial documents to the other. It is possible that depositions will be taken. That means questioning under oath in front of a court reporter who records all statements. Interrogatories may also be used. Interrogatories are written questions which must be answered in writing under oath. In the discovery phase of the case, both parties have the opportunity to learn almost anything he / she wants to know to prepare his / her case. The days of Perry Mason and surprises in court are gone. Discovery is frequently expensive - cost can be reduced if both parties are open and voluntarily exchange financial documents. If the parties can't settle and must set court hearings, mediation is required before setting a contested final hearing. For additional information, refer to the Mediation & Arbitration page of my primary website. Before temporary or final orders hearings, most judges require a pre-trial statement - a written statement which advises the court of agreements, contested matters, facts and law, parenting plan and other disposition requested by each party. Counsel may attend a pre-trial or status conference in chambers at which time each side advises the judge what of agreements, disputes and issues - what the court fight will be about. Some judges do not allow the parties into chambers during a pre-trial conference, others require the parties to be present. Any divorce may be involuntarily set into the Divorce with Dignity non-adversarial divorce settlement and case management program emphasizing cooperation, disclosure and informal settlement. The parties and attorneys meet with the judge in chambers 2-3 times over a 90-120 day period, commencing about 30 days after a petition is filed. The court hopes a separation agreement and a decree are completed during that period. A non-appearance affidavit is used to formalize the decree. Parties with children are still required to go to the parent education class but no party is required to attend mediation. The judge will set initial and subsequent conferences. The initial conference may be used to adopt temporary orders. Full financial affidavits are required. Unless authorized by the judge, no motions may be filed. Only one court-appointed expert on any contested issue is allowed. No formal discovery is authorized. After final hearing, if a litigant does not like the judge's decision, appeal must be filed in the Court of Appeals. Generally, a party can not state he / she does not like the ruling & ask for a new ruling or judge. If the parties can reach agreements, a divorce can generally be completed in about 4 months from start to finish. If the parties can not agree, it may take as long as 1 - 2 years. Tell your attorney if you have plans to marry another in the near future, if the wife in the present marriage is pregnant, or if either alleges the husband is not the father of a child. Once a response has been filed, the case may not be dismissed (thrown out) unless both parties agree. If both agree, the case may be dismissed at any time until the final orders have been entered. If one party wants the divorce, the other can not stop it. Either may ask for court ordered marital counseling, but it probably will not be ordered if the other simply states the marriage can not be saved; he or she does not desire counseling.
Effective January 1, 2005 Colorado Rule of Civil Procedure C.R.Civ.P. 16.2 was adopted which provides for mandatory disclosure (discovery), limited motion practice and case management by the court. Judges and magistrates are serious about Rule 16.2 obligations and judicial case management. Once the case is filed, be prepared to disclose documentation and move the case forward in a timely fashion. Refer to the above link to view the rule - it applies to the initial case and post decree matters. To assist in rapid case preparation, fact sheets have been made available on-line. Open file password is given to a client or sent via email once retained. Counsel asks clients to invest significant effort at commencement of representation to provide an understanding of the relevant facts and documents which must be disclosed. Judicial case management has removed any dilly dallying - timely case preparation is now obligatory to avoid sanctions.
If removal of the spouse from the marital home is necessary, court orders may be obtained, and done without prior notice under some circumstances. However, it is preferable to work out the residence without court orders. There is no pleasant or enjoyable way to physically separate. If necessary, either party may hire an off duty police officer to be present and keep the peace while household goods are being physically moved. You may attempt to hire an off duty law enforcement officer by calling the Colorado Springs Police Department or the El Paso County Sheriff's Office. No officer will participate in deciding who may take or keep individual items, the officer will merely keep the peace. Plan on $50+ minimum. To provide for an efficient and rapid move, make certain sufficient manpower, truck space, dollies, pads, etc. have been arranged in advance.
Annulment means the marriage never existed - it is now called declaration of invalidity. This can be obtained only with very special facts, such as bigamy (concurrent multiple marriages), incest (marriage to a relative), fraud, duress (shotgun wedding) or surprise inability to consummate the marriage (sex). Short duration (hours, days, weeks or months) is insufficient in and of itself in Colorado. Most marriages do not qualify. If children were conceived or born during the relationship, the court would address the issues of parental responsibilities allocation and parenting time (custody and visitation) and child support. The court would also enter orders regarding mutually acquired property and debt. The most common reasons to seek declaration of invalidity would be:
Many persons have inquired through the years and expressed a desire to annul the marriage. The statute which sets forth the grounds for declaration of invalidity is linked above. Colorado Revised Statutes (CRS) are available on-line (refer to link) or are available in the local law library supported by the El Paso County Bar Association - you may ask a librarian for assistance in locating statute books. If you hope to annul your marriage, read the statute to determine whether grounds exist to invalidate your marriage.
Where a lawful marriage existed, and the parties desire to keep the umbilical cord of the marital legal relation but live apart and deal separately with property and debt, the parties may file for legal separation. After entry of decree of legal separation, the parties remain lawfully married, however are otherwise similar to single persons in their contractual dealings and property ownership. The most common reasons to seek legal separation would be:
The procedures to obtain a legal separation are very similar to divorce. The major difference is that the legal bond of marriage is not severed. Six (6) months after decree of legal separation entry, either party may convert to it dissolution of marriage. CRS 14-10-120
The court previously decided legal custody (decision making), physical child custody (where a child lived) and visitation ( the schedule upon which the non-custodial parent was entitled to see a child) based upon the best interest of the children. In effort to eliminate the idea that children are items to be awarded in a divorce, terminology has changed. Custody and visitation no longer exist in Colorado except as is required for tax exemptions. CRS 14-10-131.7 Refer to allocation of parental responsibilities and parenting time below.
Allocation of parental responsibilities CRS 14-10-124 Decision making for children remains an issue for the court to rule upon. That is now called allocation of parental responsibilities. The court addresses day to day decision making, as well as major decisions such as religion, medical care, education and general welfare issue which affect a child. Major decision making may be ordered jointly, or by the parent with whom the child primarily resides. Provision is also made for future dispute resolution, such as submission to mediation, arbitration, or request for the court to review the disputes. The court may order joint decision making without agreement of the parties, even over each parties' objection. * * * * * * * * Parenting time encompasses court rulings regarding the children's primary residence and upon what schedule the other parent will have the children physically present with him or her. The court continues to use the best interest of the child as the polestar. CRS 14-10-123.4 More emphasis is now placed on each parent assisting with children's obligations, such as homework, taking the children to activities, etc. If possible, children should have liberal access to each parent - children have a right to know and love each parent. Under limited circumstances, parenting time may be restricted or denied by the court if in a child's best interest. The court will consider denial of or failure to exercise parenting time in ruling upon decision making, primary physical residence and parenting time. Parenting time
enforcement. CRS
14-10.5-104 The court may utilize: * * * * * * * * Access to records. * * * * * * * * "Custody battle" with
significant other or extended family member. * * * * * * * * Motion to modify - affidavit
required.
Terminology sometimes appears confusing, however it may not seem so difficult when you understand the court will be ordering how major decisions affecting children will be made, and deciding separately who will be the primary caretaker for the children. Obtain a spiral notebook and keep brief notes regarding matters pertaining to the children, both agreements and disputes. Date each entry, state only facts, not opinions, and make each entry brief. Keep a record of parenting time requests, including dates & times, parenting time exercised, and relevant facts. Your notes may be later used to refresh your recollection on the witness stand and will be used by the lawyer to prepare for hearings. With notes, you may effectively rebut false claims of your spouse and you will have a record to build your case. Advise the attorney not only of favorable circumstances, but of facts which may be harmful to your case. Allowing your attorney to be educated by opposing counsel in court is very damaging to your case. If you and your spouse are contemplating a "custody battle," seriously consider the matter in light of the effect it may have on your children. Custody evaluation is likely and a guardian ad litem or special advocate may be appointed by the court to represent the best interests of your child(ren). You must be prepared to commit substantial financial resources. Each party will be required to submit a written, detailed parenting plan. In every case where children are involved, this attorney recommends you consult a psychiatrist, psychologist or licensed social worker to learn more about what impact your separation will have on the children, and how to effectively cope. Advance knowledge will likely assist you in neutralizing negative circumstances and minimizing injury to your children.
Alimony exists in Colorado, just a different label - spousal maintenance. The person seeking spousal maintenance must first establish need, and if established, then the court will look at the finances of each party in setting the amount and duration. The court need not order any maintenance or may award up to lifetime. The shorter the duration of the marriage, the less likely the court will order maintenance, or the shorter the duration of award. The court seeks fairness. Each marriage is different, and the award or rejection of spousal maintenance depends on the facts of each case.
To compute spousal maintenance, each parties' income must be known. For information regarding Military and Civil Service Defense Employee Pay and Benefits refer to the link. This information is beneficial when an LES is not available to the spouse. Spousal maintenance receipt is taxable income. Payment is tax deductible. Interesting little tidbit for persons seeking spousal maintenance or seeking to avoid alimony. Failure to request permanent spousal maintenance in petition for dissolution of marriage or petition for legal separation will likely invalidate the claim.
Separate property is generally property acquired before the marriage or received during the marriage by gift or inheritance. Unless the owner has titled the property jointly or made a gift of it to the spouse, separate property will not be subject to division. However, see below. Although the court may not divide separate property, in practicality it may be necessary to sell to satisfy the award of marital increased value. Marital property is generally that which is acquired during the course of the marriage except as above. Any increase in value of separate property during the marriage is considered marital; i.e.: home owned before marriage worth $90,000 at marriage, now worth $150,000 yields $60,000 marital property and $90,000 separate property. Marital property is subject to division in dissolution of marriage. The above simple example assumed home purchase by cash with no debt. Secured debt would be an equity factor at the time of acquisition, marriage and divorce. Separate debt is generally acquired before the marriage and not subject to award against the other spouse. Reduction in separate debt can be allocated as marital property. Debt incurred during the marriage is generally marital debt, even if incurred only by one spouse without the knowledge or consent of the other spouse, or if incurred without the other spouse's joint signature.
The court will equitably divide marital property
& marital debt. If the parties are unable to agree on value or division of personal property, the court may order all personal property sold at auction. Be reasonable - not greedy.
Please refer to the
Resources
Links page of my primary website for assistance in placing values on your real property,
personal property or motor
vehicles. Specific link designations are provided below. Pensions, including military and PERA, are property subject to division if earned during the course of the marriage. It is not necessary that a pension be vested or mature for the court to divide it. Vesting is the right to take the pension if you left employment. Mature is the right to receipt at present. If the marriage is over 10 years duration during creditable military service, the military will disburse the spouse's share direct to him or her if requested. Numerous court rulings have interpreted the "10 Year Rule" which does not prohibit or deny the spouse's claim if the marriage was less than 10 years duration during creditable military service. The "10 Year Rule" merely deals with whether the military will disburse a portion of the pension to the former service member and a portion to the former spouse, or whether all will be disbursed to the former service member and then he / she must disburse to the ex-spouse. IMPORTANT NOTATION: For any loan you have taken or will take from family or friends, document the loan with a promissory note reflecting the loan date, initial principal amount, interest (if any), method of repayment (i.e.: installment or lump sum) and amortization (scheduled payment amounts and due dates.) If you have borrowed items of personal property, make a writing reflecting the date or circumstances regarding return. This documentation is admissible evidence if your spouse claims family or friends made a gift to you individually or jointly. Lawyers see this dispute with some regularity - protect yourself now, even if after the initial loan date. Clients may refer to the link to obtain a form Promissory Note. Free Acrobat Reader Download
The legal system hasn't achieved the fast food market level of efficiency and probably never will. Probably never should. Prospective clients want to know how long will it take to commence a divorce and how long the process will take. There are two primary focal points in divorces - finances and what to do with respect to the children. The two most important documentary aspects of a divorce are the financial computations used to arrive at settlement or litigation theory (pre-trial statement & brief) or the separation agreement (terms to be incorporated into the final decree if court fight can be avoided). Comprehensible and concise computations are required to understand family finances and to draft a realistic settlement or litigation proposal. A lawyer can not offer advice regarding support or division of the marital estate until he or she has an understanding of the family's finances, and understanding of family dynamics is necessary before formulating a parenting plan. That's common sense. Financial disclosure rules require an in-depth look at the family's financial circumstances at the time of filing. If children are involved, a parenting plan must also be submitted. Put another way, at the time of filing you must inform the court of the family circumstances and your proposal for relief - at least on an interim basis until final orders hearing. I have fact sheets available on-line to aid in understanding of family finances and dynamics and case preparation. I ask the client to provide realistic valuation numbers regarding income and expenses, assets and liabilities and to be thorough in describing family circumstances. I ask that the client invest time locating, organizing, copying and providing relevant documents at the time I am retained. Income is determined from paystubs, LES or projected income capability. Kelly Blue Book or NADA Yellow Book will be utilized to set motor vehicle values or if one party wants to be difficult, appraisal can be ordered. If the parties are not in agreement, real property can be valued by appraisal or market analysis. Unless the parties' real property will be sold and proceeds divided or if buyout is planned, unless it was recently purchased, appraisal or market analysis is a very good idea. Business interests can be valued by a CPA if complex or if the parties do not agree. Pensions are ascertained from plan provider documentation. IRA, TSA, 401K, etc. are ascertained from family financial documentation, as are bank balances determined from bank statements. A value can be set for every asset, right down to household goods. If you can't agree on valuation of personal property or household goods, appraisal can be ordered. Debt is determined from recent billings. Numbers will be obtained - mutual disclosure and valuation stipulation is easier on the pocket book than discovery fights and appraisals.
You feel the need for speed - how fast? From the time attorney receives completed intake sheets and financial documentation, the divorce can usually be prepared within 1 - 2 weeks. I prefer to submit a separation agreement (settlement proposal) to the opposing party at or near the time of filing the petition or response if possible. Settlement proposal is seldom accepted as first drafted, but changes shouldn't be significant if client has been realistic and has communicated with spouse or is aware of spouse's valuation estimates and goals. Being aware of the spouse's position doesn't mean you agree; compromise or litigation will likely be required. Initial financial scrutiny & settlement proposal method creates additional work for counsel and parties on the front end, but in this fashion we quickly determine whether settlement is a viable option or trial will be required. If appraisals are not needed and if you and your spouse can be objective, figure about 3 - 4 weeks of hard work to achieve a final resolution, including transfer of real property ownership by quit claim deed or motor vehicles via powers of attorney. More fees are incurred at the outset than if the case were commenced with a simple summons and petition, but if the case can settle it will ultimately reduce attorney's fees and costs in the final analysis. It also reduces headaches, heartaches, anxiety and stress if the case can be concluded from the outset except awaiting the statutory 90 day cooling off period mandated by CRS 14-10-106. If settled, decree can usually be taken in about 4 months from the time of filing and service of process. That's not "on-demand" or fast food mentality, but not a significant period if you and your spouse can be objective, realistic and reasonable. In the interim, please don't plan a wedding to a new spouse, nor plan a buyout and refinance closing within a tight time frame. If it's a court fight, plan to become quite patient. Remember - the court's polestars will be the best interests of the children and fundamental fairness with respect to support, property and debt. If you enter into court fights, final outcome will likely be somewhere in the same ballpark of reason we are seeking in the initial analysis. Use good judgment when contemplating your initial "wish list" or revisions thereto. * * * * * * * * Courtesy vs. Fighting and Negative Emotions 1. Do not fight with your spouse, physically or orally. You will gain nothing, except to make your divorce much more difficult or incur criminal charges. 2. You must disconnect the buttons which have caused you emotional distress in the past. No one knows better how to press your buttons than a spouse. You have commenced or are contemplating a divorce - expect your spouse to play your buttons with more fervor than the "Phantom of the Opera." Recognize your spouse is jabbing your all too familiar emotional sore spots due to his or her own negative emotions. Do not give feedback; the jabs can be temporary if you don't feed the fight. And... don't you become a concert pianist on the buttons. 3. You make the best decisions when you are rational and logical. No one can exercise clear judgment when we are over emotional, over tired | |||||||||||||||||||||||||||||||||||||||
