Colorado is a “no fault” state for parties when they want to obtain a divorce. This means that any personal issues that led to a spouse filing for divorce, will not be admissible in Court and will not be a factor in determining maintenance and property division. There are certain exceptions to this, specifically if one spouse is “wasting” assets or financial resources in anticipation of a divorce, or if one parent’s personal problems negatively affect the best interests of the children involved.
In Colorado there is a “90 day waiting period” from the date a spouse is served with the Petition of Dissolution of Marriage to when a divorce may be finalized. However, it is important to realize that if there are contested issues between parties, it can take much longer for a divorce to be finalized. Depending on the complexity of issues and the county in which the divorce is filed, a contested divorce can take anywhere from four months to two years to be completed.
Valuing Property/Property Division
Judges in Colorado are required to divide debts and assets between the parties “equitably,” which does not necessarily mean “equally.” It is important for an individual to determine all the property she or he has, including real estate, personal property, retirement accounts, investment accounts, bank accounts, business interests, vehicles, trusts, and other miscellaneous assets.
Once a party determines what assets are part of the marital estate, it is important to figure out the value of each asset. Sometimes it is fairly easy to ascertain the value of an asset; for example, you can determine the value of a bank account by looking at a bank statement. Other times, an appraisal may be necessary of certain collectibles and real estate, or a financial expert may be needed to value a business, trusts, or retirement accounts. The value of a retirement account may not be the face value of what is listed on the account statement.
It is also important to designate whether property is “marital” or “separate.” Generally, property that is acquired during the marriage is presumed to be marital, whether it is titled in one party’s name or both parties’ names. Property is considered separate when it is acquired before the date of marriage, or obtained by gift or inheritance. Any increase in value of separate property from the date of marriage to the date of divorce, is also considered marital.
“Maintenance” is Colorado’s term word for “alimony.” As of January 1, 2014, a new maintenance statute was enacted that Judges are required to follow when entering maintenance awards for one spouse. Within this new statute are guidelines regarding the amount of maintenance to be paid on a monthly basis, and the length of time maintenance is to be paid.
Although the statute provides a basic calculation, this is not automatically the maintenance award. The Court also considers factors such as: the financial resources of the spouses, the ability of the spouse receiving maintenance to meet his or her needs independently, the ability of the spouse paying maintenance to meet his or her own reasonable needs, the lifestyle of the parties during the marriage, the distribution of property, employment of the spouses, employment that may be obtainable to the parties with training or education, the need of one spouse to reduce employment to meet needs of children, what the parties historically earned during the marriage, duration of marriage, age and health of parties, and economic/non-economic contribution of the spouses to the marriage.
Maintenance is included as taxable income for the person receiving it and deductible for the spouse paying it. It may be necessary to consult with an attorney to determine what your rights are regarding maintenance, or what your obligations may be.
Parenting Time/Child Support
If children are involved in divorce, the Court is tasked with entering parenting time and child support orders. It is generally best if the parents can determine a parenting time schedule that they both think will work best for their children. However, this is not always possible. If the Court is to come up with a parenting time schedule, it is required to determine what is in the “best interests” of the children.
The Court has to consider the following factors when determining what is in the best interests of the minor children: wishes of the parents; wishes of the child if he or she is sufficiently mature to have a reasoned opinion; the child’s adjustment to his or her home, school, community; mental and physical health of all involved; ability of parties to encourage the sharing of love, affection and contact with the other parent; whether the past patter of involvement of the parties with the child reflects a system of values, time commitment, and mutual support, physical proximity of the parties, whether a parent is a perpetrator of child abuse or spousal abuse, and the ability of the parties to put the needs of the child above his or her own needs.
The Court or the parties must also determine whether the parents have joint decision-making over major decisions of the children, or decide if one parent has sole decision-making over major decisions. Major decisions generally include education, major health, and religious decisions. The calculation of child support takes into account the parents’ incomes, the number of overnights each parent has with the children, the amount of children, the costs for children’s portion of health insurance, costs of education or work-related daycare, other extraordinary expenses, and, at times, income of the child.
There are other related issues to consider: who is required to maintain health insurance for the children, how to divide claiming the children as dependents for tax purposes, and the division of out-of-pocket health insurance costs and other mutually agreed upon expenses.
Common Law Marriages/ Legal Separations/Civil Unions
A couple does not have to be part of a marriage ceremony or file a marriage certificate to be considered married in Colorado. This State recognizes “common law” marriages. There is a common misperception that people who live together for a certain period of time are common law married in Colorado. In reality, whether a couple is common law married is a question of fact for determination by a Judge.
In order to be considered common law married in Colorado, the parties must have had an “intent” to be married, and hold themselves out to the community as married. The Court can look at a number of factors to decide this, including filing of joint tax returns, claiming a party as a spouse for health insurance purposes, wearing a wedding ring, living together, introducing one person as husband or wife to others, and many other indications that would imply a couple is common law married.
If a couple is considered common law married, they may be entitled to a divorce and all the benefits that come along with a divorce, including receiving maintenance, division of assets and debts. Couples may want to obtain a “legal separation,” rather than a divorce. A legal separation generally requires the same process as divorce, including the same hearings, division of debts/assets, and an order regarding maintenance. Once a Decree of legal separation is entered, there is a six month waiting period before either party can ask that it be converted to a divorce.
It may be beneficial to seek a legal separation in order to maintain health insurance benefits. Colorado began recognizing “civil unions” in May of 2013. Couples in a civil union can obtain a divorce or legal separation in the same manner as married couples. As this area of law is newly enacted, a spouse in a civil union may want to contact an attorney regarding a divorce, especially if he or she was married in a different state.