GUIDE TO COLORADO DISSOLUTION OF MARRIAGE (DIVORCE)
This is a short synopsis of the Colorado law on dissolution of marriage. The most prominent features of the law are explained for your convenience.
In Colorado we have "no fault" divorce. Technically, a marriage is dissolved or terminated because at least one party is convinced that the marriage is irretrievably broken and there is no hope for reconciliation. The passage of this law relieved the court of the obligation to listen to the parties recite their list of complaints against each other.
Colorado will not permit a party to file an action for dissolution or legal separation until he or she has been a domiciliary (permanent resident) of Colorado for at least 91 days. After the action is started, there is another required 91-day waiting period before the marriage may be terminated. However, it ordinarily takes more than 91 days because of court schedules and the complexities in each case. For those who actually want or need to go to trial to resolve their case, the delay may be considerably longer. If the parties reach an agreement, the time needed for the actual appearance before the judge is reduced to about ten minutes, or a court appearance may be avoided altogether. In some cases, where there is agreement and both parties are represented by attorneys, affidavits for non-appearance by mail can be substituted for this type of hearing.
The law presumes that all property that is acquired during the marriage is “marital” property for division between the parties. “Separate” property is not divided, but is set aside to its owner. Separate property is limited to: (1) property that you owned before you were married; (2) property that you inherited or received by gift from a third party during the marriage; (3) property that was exchanged for property that you owned before the marriage or inherited; or (4) property excluded by a valid agreement of the parties. Unlike separate property itself, the appreciation or increase in value of separate property, and the income from it, is considered marital property.
The court determines the value and divides “marital” property at the date of hearing, not at the date of separation. It is necessary to determine the value of all of the property, as near as possible to the date the decree will be entered. "Value" usually means the price at which the item could be sold currently on the open market. It is also necessary to determine the amount of current debts. In cases involving separate property it will be necessary to ascertain the value of the separate property on the date it was acquired or the date of marriage so that the appreciation can be determined and then divided.
Once the “marital” property is identified and valued, it will be divided equitably. “Equitable division” does not necessarily mean equal. However, an equal division is a good rule of thumb in most cases. The division of property is based on a number of factors, including the contribution of each spouse to the acquisition of the asset, including a homemaker’s contribution and the economic circumstances of each spouse at the time of division.
Maintenance used to be called "alimony." Either party may permanently waive maintenance. It can also be awarded to either spouse if the spouse meets a two-pronged threshold: (1) lacks sufficient property to provide for his or her own reasonable support and (2) the spouse is unable to support himself or herself through appropriate employment. Starting January 1, 2014 the Colorado Legislature enacted advisory guidelines for the determination of the amount and duration of maintenance if the threshold test is met in cases where the combined gross income of the parties is less than $240,000 per year. The guidelines are not mandatory but are provided as a starting point for negotiations and to assist the court in making a determination. Since the advisory guidelines do not create a presumptive amount, the court still has discretion to determine the amount and term based upon the totality of circumstances. For marriages where the combined gross income exceeds $240,000 annually, all relevant factors and circumstances are to be considered.
Starting January 1, 2019, by federal law, new maintenance awards will no longer be deductible for federal income tax purposes by the payor and taxable income to the recipient. Awards prior to January 1, 2019 will continue to be deductible by the payor and taxable income to the recipient.
If the maintenance award is deductible for federal income tax purposes by the payor and taxable income to the recipient, the amount of maintenance under the advisory guidelines is equal to forty percent (40%) of the parties’ combined, monthly adjusted gross income minus the lower income party’s monthly adjusted gross income. If the calculation results in a negative number, the amount of the maintenance is zero.
If the maintenance award is not deductible for federal income tax purposes by the payor and not taxable income to the recipient, the amount of maintenance under the advisory guidelines for the parties with a combined, monthly adjusted gross income of $10,000 or less is equal to eighty percent (80%) of the amount calculated above. If the maintenance award is not deductible for federal income tax purposes by the payor and not taxable income to the recipient, the amount of maintenance under the advisory guidelines for the parties with a combined, monthly adjusted gross income of more than $10,000 but not more than $20,000, the maintenance award under the advisory guidelines is equal to seventy-five percent (75%) of the amount calculated above.
The court must also consider all relevant factors including the needs of the receiving party and the ability to pay of the other party. Other major factors that are considered include the income that might be received from property, the health and age of the parties, ability to work including employability and additional training that may be needed, potential income and the length of the marriage, equitable allocation of the tax burden between the parties, and any other factor that the court deems relevant..
As a general rule, maintenance terminates at a specific date or upon the death of either party or the remarriage of the party who is receiving the maintenance. The guideline for duration applies only to marriages of at least 3 years and not more than 20 years. The duration guideline starts at 31 per cent (31%) of the length of the marriage for a 36 month marriage, which term would be 11 months. The duration increases by approximately .17 each full year up to a total of 50 percent (50%) of the length of a marriage for a marriage of 150 whole months (12.5 years of marriage) or more up to 240 whole months (20 years of marriage). For more than 20 years of marriage, the court may award maintenance for a specific term or for an indefinite term, but the term shall not be less than the term for a 20-year marriage (this would be 50 percent (50%) of the length or 10 years) without making specific findings that support a reduced term of maintenance. For marriages less than 3 years, the court may award maintenance when given the circumstances of the parties, the distribution of marital property is insufficient to achieve an equitable result. In these short-term marriages, the court may consider the guideline for determining the amount and the relevant factors to apply, and must make written or oral findings.
Maintenance is always modifiable unless the spouses specifically agree to the contrary. Maintenance that the parties agree cannot be changed and is fixed as to amount and duration is called “contractual maintenance.”
PARENTAL RIGHTS AND RESPONSIBILITIES
Since February 1, 1999, the concept of “custody” no longer exists in Colorado. The term “custody” has been replaced with the term “parental responsibilities.” Parental responsibilities are comprised of parenting time and decision-making responsibilities. The law represents an effort to encourage parents to focus on their parenting responsibilities rather than viewing their children as possessions that are “won or lost.”
Several factors are utilized to determine parenting time and decision-making responsibilities. Parents may customize how decision-making responsibilities are handled for more flexibility that may include allocating the decision-making responsibility for each issue affecting a child mutually between the parents, individually to a parent, or in any combination.
Parenting time will be allocated on any schedule considered by the parents (or if they cannot agree, by the court) to be in a child’s “best interest.”
Parents should try to work out the appropriate parental arrangements because they know the family better than any court can possibly hope to know them. In those cases where parents are unable to agree, evaluators, who are trained mental health professionals or Child and Family Investigators, can be used to evaluate all family members and make a recommendation.
Allocations of parental rights and responsibilities are always modifiable by the court. The child's best interests is the most important factor in making these arrangements. Additional factors include the ability of the parents to work together, the ability of the parents to encourage the sharing of love, affection and contact between the child and the other parent, and geographic location of the parents (including a desire to move from the state).
Colorado, like all other states, has child support guidelines that fix presumed child support amounts. Child support is calculated based on the gross income of each parent and the parenting time schedule for each child. Both parents are obligated to support their children. In Colorado, children are usually considered minors until the age of 19. Some children are legally dependent beyond that age and must be cared for and supported. Medical and dental expenses, medical insurance, travel expenses for parenting time, and educational expenses are also allocated between parents. The court does not have the ability to order a parent to contribute to the costs of college or other post-high school education. However, the parties may want to reach an agreement about payment for these expenses.
Child support is modifiable. Modification can be ordered when there is a substantial and continuing change in the financial circumstances of the parties and the support obligations determined by the Child Support Guidelines change by 10 percent (10%) or more.
ENFORCEMENT OF ORDERS
Child support, maintenance, and all court orders may be enforced by invoking the court’s contempt powers, which may involve a fine or jail sentence for failure to pay. Support can be deducted from a parent’s paycheck by “income assignment.” Child support can also be enforced from state to state by a government attorney with the assistance of officials in other states. Maintenance and child support arrearages can be reduced to a judgment when they are past due and collected by garnishment of wages or other assets including bank accounts. However, a parent absolutely may not attempt to enforce child support obligations by withholding parenting time.
Parenting time is a right of the child and both parents that is strongly protected by the court. Failure to comply with parenting time orders is punishable by contempt, which may include a fine, jail sentence, and other remedies, including payment of attorney’s fees for enforcement.
Once the dissolution action is started, an automatic temporary restraining order becomes effective. This order applies to both parties. Each party is restrained from transferring, encumbering, concealing or in any way disposing of any marital property without the consent of the other party, except in the usual course of business or for the necessities of life. Each party must notify the other of any proposed extraordinary expenditure and account for the same. Each party is restrained from canceling, modifying, terminating or allowing any health insurance, homeowner's or renter's insurance, or automobile insurance to lapse that provides coverage to either of the parties or the minor children or any policy of life insurance that names either of the parties or the minor children as a beneficiary without first providing 14 days advance notice and obtaining the written consent of the other party. Both parties are also restrained from removing the minor children from Colorado without the consent of the other party, and both parties are restrained from molesting or disturbing the peace of the other.
The court may enter temporary orders until there is a full trial or settlement of the case. Allocation of parental rights and responsibilities, support of the children, parenting time, maintenance, payment of bills, attorney's fees, use of property, payment of insurance and other matters may be determined. Hearings for temporary orders are frequently held before a magistrate appointed by the judges.
Temporary restraining orders, sometimes known as TRO's, restrain a party from engaging in certain conduct. Most commonly, TRO's are utilized when there is a risk of bodily harm and it is necessary to exclude one party from the residence of the other at the start of a divorce action.
MANDATORY EXCHANGE OF FINANCIAL INFORMATION
A mandatory exchange of financial information is required in every case. Both parties owe each other and the court a duty of full disclosure of all facts that materially affect their rights and interests and those of the children involved in the case. This duty is an affirmative duty to disclose such information without awaiting an inquiry from the other party. The exchange of financial information is required within 42 days after the Petition for Dissolution of Marriage or other motion has been served. Each party must provide to the other comprehensive documentation and information including a complete copy of personal federal and state income tax returns for the prior three years, the same tax information for any business in which a party has an interest, personal and business financial statements for three years, current debt statements, employment benefits, retirement plan information, bank and investment account information, life and health insurance information, child care expenses, documents related to extraordinary expenses for the children, real estate documents reflecting title, and income verification from all sources. In addition, the parties must exchange a complete sworn financial statement financial that states detailed information about income and expenses, debts, and assets. It is often necessary to have property appraised by professionals who can determine value. “Discovery” techniques (depositions, request for production of documents and things, and interrogatories) may also be used to obtain information from both parties.
The court retains jurisdiction for 5 years after the entry of a final decree of judgment to allocate material assets or liabilities that were misstated or omitted and that materially affect the division of assets and liabilities. This recent concept does not limit other remedies but is designed to help protect parties to a divorce from concerns about untruthful disclosures.
Each party is responsible to pay the fees and costs of litigation to his or her own attorney. However, the court also has the authority to require one party to pay all or a portion of the attorney's fees and costs for the other party if necessary to put the parties on equal financial footing before the court.
ALTERNATIVE DISPUTE RESOLUTION
Neutral facilitators skilled in family law matters may conduct discussions, called “mediation” between the parties, with or without attorneys present, to see if agreements can be reached. Mediation is often required before a hearing will be permitted before the judge. Mediation can be a very useful tool to identify, limit, and solve problems which otherwise would prevent agreement. Arbitration, which is a private decision making process outside of a court setting, may also be used to resolve disputes in appropriate cases.
This summary is by no means an exhaustive discussion, but should be used as an easy reference about your case. The law continues to change in many areas. The many facts in your case will require individual analysis and handling.