One way to travel through the divorce process as smoothly as possible is to have a basic understanding of divorce laws in Colorado.
Alternatives to Divorce
Child Support and Visitation
Marital Assets in Divorce
- ADR Available: Yes
- Fault or No Fault: No Fault
- Parenting Plan Required: Yes
- Property Distribution: Equitable
Grounds For Divorce
In other states there are grounds or fault that can contribute to the divorce, such as adultery or cruelty. In Colorado, there is only one ground for divorce and that is when a spouse asserts that the marriage is irretrievably broken.
In Colorado it is not even necessary that both parties agree the marriage is broken or that the couple has irreconcilable differences. The respondent can disagree that the marriage is broken. Should that happen, the judge may order counseling, or impose an additional waiting period.
Common Law Marriage
Colorado allows common law marriages. Contrary to popular wisdom, a common law marriage is not based upon the length of time a couple lives together. In Colorado, a common law marriage is based on two factors, both of which must be met:
- The couple mutually agree to live as husband and wife (act as though married)
- The couple mutually and openly assume a marital relationship (present themselves to others as married)
If a couple has a common law marriage, they must get a divorce to end their marriage, and all of the same rules apply as in a Dissolution of Marriage.
Divorce Waiting Periods
To file for divorce, one spouse must be a resident of Colorado for 90 days, or be a military member stationed in the state for 90 days. A 90-day waiting period begins when the respondent or co-petitioner is presented or served with the Petition for Dissolution of Marriage. In theoretical terms, 90 days is the minimum amount of time required to complete a divorce. As a practical matter, it often takes six months to one year.
Although same-sex marriage is currently not legal in Colorado, the state will allow a Dissolution of Marriage for same-sex marriages performed in states which have legalized same-sex marriage. A same-sex divorce in Colorado is the same as any other civil divorce in Colorado regarding residency requirements, waiting period, division of property, child custody and child or spousal support.
Same-sex divorce became legal in Colorado on May 1, 2013.
Alternative Dispute Resolution (ADR)
ADR is a way to resolve disagreements or disputes other than settling them in court. There are a number of ADR methods used nationwide. In Colorado, the following ADR methods are allowed to resolve disputes:
- Arbitration (binding or nonbinding)
- Early Neutral Evaluation (ENE)
- Mini Trial
- Private judging
- Settlement conference
It is important to note that all of these methods are voluntary.
A Legal Separation is another way to end the marriage that is temporary, rather than permanent. When a couple is legally separated, they live as though they are not married, although they are not free to re-marry. In a Legal Separation, the same issues must be agreed upon that are agreed upon in a divorce or Dissolution of Marriage. Those issues include division of property, child custody and support payments for either spousal support, child support or both.
Couples in Colorado may choose Legal Separation if they believe there is a chance for reconciliation and want to give divorce a “trial run.” Others, who do not believe in divorce for religious reasons, may choose Legal Separation as a way to live apart without divorcing.
Annulment is a way of ending a marriage permanently by having the marriage declared illegal. It will be as though the marriage never existed. The grounds or reasons for an annulment vary per state. In Colorado the grounds for annulment include:
- Inability to consent (one spouse lacked the capacity, was intoxicated or under the influence of drugs)
- Inability to consummate the marriage (unless that information was communicated prior to the marriage)
- Marriage as a joke or dare
- Marriage involving fraud, misrepresentation or other trickery
- Marriage to an ancestor, descendant, brother or sister, uncle/niece or aunt/nephew (including step-relatives and half-blood relatives)
- Marriage under duress (force or threat)
- One or both spouses was already married (bigamy)
- Underage (not yet 18, or lacking parental/court approval if not yet 18)
Child Custody Determinations
Child custody determinations can be some of the most difficult issues for spouses to agree upon. Both parents will be spending less time with their children, and will parent alone during the time the children are in their care. Both parents will still be parenting, although they will do it independently of the other parent rather than together.
It is no longer true that the mother holds a preference for child custody. In Colorado, as in many other states, the court prefers shared or joint custody and gender is not a determining factor. The factor that the court considers paramount is the best interests of the child.
There are two basic types of child custody in Colorado, either of which may be shared (joint) or belonging to one parent only (sole). The types of custody are:
- Legal custody. This is the ability to make decisions regarding the child’s education, religious upbringing and medical care such as surgery, braces or ADHD treatment.
- Physical custody. This is the child’s physical location or place to receive room and board. Colorado prefers that physical custody is shared as equally as possible. In instances of parental misconduct, abuse or incarceration, one parent may be awarded sole physical custody.
The court will typically not award split custody in the event of a divorce. This would split the physical custody and send different siblings to each parent. For example, the girls go with the mother and boys go with the father, or older children go with one parent and younger children with the other parent. In order for the court to agree to this, a compelling reason must exist and it must be in the best interest of all of the children.
Visitation and Parenting Plans
Colorado requires the parents agree on a comprehensive parenting plan. The term visitation would be used to refer to the time a noncustodial parent visits or spends time with the child or children who live full-time with the custodial parent.
The parenting plan is very detailed and can be a source of disagreement between the spouses who often wish to have as much time as possible with their children. If the parents cannot come to an agreement, the court may order the parents into mediation to resolve the issue. A parenting plan covers such issues as:
- Days of the week, or weeks in a month the children spend with each parent
- Where the children will spend holidays and vacations
- Transportation between parent locations during physical custody changeovers
- Emergency plans
- Communication plans
- Plans for how to handle scheduling or other disputes
- Agreement on doctor, dentist and other medical needs (who drives and who pays)
- Extracurricular activity schedule and payment provisions for any extra expenses
In Colorado, as in many other states, both parents are assumed to be responsible for the support of their child or children. Because Colorado prefers shared custody, the most common financial arrangement for child care expenses is shared responsibility with the parent who earns more making a supplemental payment to the other parent.
Using round numbers, if the child support amount which both parents share is $1,000 monthly, and spouse A earns $80,000 annually and spouse B earns $20,000 annually, spouse A’s monthly portion would be $800 and spouse B’s portion would be $200. Spouse A should send a check for $300 to make up the difference in spouse B’s ability to make half of the payment.
The payment amount and how it is paid would be included in the final divorce decree.
Child Support Enforcement
To continue the above example, if spouse A does not pay the monthly $300 to spouse B, then spouse B can ask the court to enforce payment. The court has many enforcement methods available to collect payment on behalf of the spouse who should be receiving the payments. Those enforcement methods include:
- Credit bureau reporting
- Interception of gambling or lottery winnings
- Liens on property or vehicles
- Revocation or suspension of licenses including a driver’s license or passport
- Wage garnishment
- Withholding federal or state income tax refunds
This is a partial listing of the enforcement methods which could be used and is an indication of how seriously the state of Colorado takes this matter.
Occasionally, either the state or a parent will wish to establish paternity. Like many other states, Colorado considers the husband to be the father if the child is born when a couple is married, even though it is possible that the husband is not the biological father.
Another way to establish paternity is one often used by unmarried couples, or spouses who had children prior to marriage. In those instances both parents could sign a Voluntary Acknowledgment of Paternity (AOP). Unmarried parents frequently sign an AOP at the hospital before leaving.
There are two additional ways to establish paternity:
- Administrative Paternity Order (in instances where one parent needs child support services)
- Judicial Paternity Order (in instances where either a potential father wishes visitation rights or a mother wishes child support)
Division Of Property
When a couple marries, their assets and debts from that point forward become joint property. If one spouse has assets that he or she is bringing into the marriage, they can remain individual assets provided they are not mingled with the marital property.
When a couple divorces, their assets and debts are divided in a manner which is equitable. Equitable is not the same as equal. In Colorado, the property may be divided in a way that is not exactly 50/50, when there are reasons to do so. The court prefers that the couple come to an agreement and present it to the court. If the couple disagrees, they could either be sent to mediation, or the court could make the determination based upon:
- Any increases or decreases in the value of the separate property during the marriage
- The contribution of each spouse to accumulation of marital assets or debt
- The economic outlook for each spouse at the time of the divorce (should one parent keep the home until the children graduate high school, for example)
- The value of the property given to each spouse in the property award
Alimony and Spousal Maintenance
Depending upon the division of property, the length of marriage and many other factors, one spouse may be awarded alimony or spousal support. The most common type of spousal award is temporary alimony.
To get a rough idea of how much may be owed, one would follow this formula: 40 percent of the higher-earning spouse’s monthly adjusted gross income, minus 50 percent of the lower-income spouse’s monthly adjusted gross income equals the spousal maintenance award amount.
Using round numbers, if the higher-earning spouse’s monthly income is $6,000, multiplying that by 40 percent yields $2,400. Multiply the lower-earning spouse’s monthly income of $3,000 by 50 percent to yield $1,500. Subtract the lower amount from the higher amount ($2,400-$1,500) to determine the temporary spousal maintenance award of $900.
The court will determine how long the temporary amount would remain in place. Online alimony and child support calculators give an estimation of what a support payment could be. A divorce attorney can offer a more accurate calculation.
When the post-divorce situation changes for either of the ex-spouses or their children, a post-divorce modification may be necessary to change the divorce decree. In some cases the ex-spouses can come to a new arrangement without court intervention. An example of this would be a change in the parenting plan holiday schedule. Other changes are more significant and will require a new divorce decree.
Examples of situations in which a post-divorce modification would be needed include:
- Alcohol or drug abuse (change in child custody or parenting plan)
- Incarceration (change in child custody, child support, spousal maintenance)
- Loss of employment (change to child support or spousal maintenance)
- Major illness of either ex-spouse or of a child (change to child custody)
- Request to move out-of-state (change in child custody and parenting plan)
Prenuptial And Postnuptial Agreements
One of the more common legal documents seen by family law attorneys is a prenuptial or postnuptial agreement. A prenuptial agreement is essentially a statement made prior to marriage that outlines the financial and child custody decisions that a couple would make, should a divorce occur.
A prenup used to be reserved for movie stars and millionaires, and the requesting party was nearly always the husband-to-be. Those are no longer truisms. Prenuptial or premarital agreements are being sought by women as well as men, and by individuals with modest means as well as high-asset individuals. Reasons to obtain a prenuptial agreement include:
- To protect the inheritance rights of children from a previous marriage
- To protect patents, small business ownership, intellectual property and other hard-to-value assets
- To protect current assets
- To protect against future debts due to such activities as gambling, drug use or other actions
- To protect one’s ability to be an active parent
A post-nuptial agreement outlines the same sorts of topics and decisions as a prenup. The only major difference is that it is signed after the marriage.
When a couple divorces, or when an ex-spouse dies, the grandparents often lose touch with their grandchildren. If the grandparents (or aunts and uncles) wish to maintain contact with a divorced couple’s children, they may go to court and request visitation privileges. As with child custody, the court will make its decision based upon the best interests of the children. Factors which would be considered include the strength of the grandparent/grandchild relationship prior to the divorce and, depending upon age, the wishes of the child or children.