Divorce and Legal Separation in Colorado
Colorado is a no fault state as far as the grounds for divorce (dissolution of marriage) are concerned. Many years ago, one had to prove a basis for a divorce, such as adultery, physical cruelty, abandonment, etc. Today, all the court must find for a party to be granted a divorce are the following: (1) one of the parties has lived in Colorado for 90 days immediately preceding the commencement of the divorce proceeding, (2) the marriage is irretrievably broken with no reasonable chance of reconciliation, and (3) 90 days or more have passed since the court acquired jurisdiction over both parties.
Generally, the issues involved in a divorce will include some, or all, of the following: (1) the amount of alimony (now called maintenance), if any, to be awarded to one of the parties, (2) the amount of child support, if any, to be awarded to either or both of the parents, (3) parental responsibility allocation for the children including issues of education, religious upbringing, visitation, and vacations with children, (4) amount of attorney and expert witness fees, if any, to be paid for the benefit of one spouse by the other, where one spouse makes substantially more money than the other, and (5) allocation of assets and liabilities between the parties.
All of the items noted also apply to an order (decree) of legal separation. Oftentimes, a decree of legal separation is sought for religious reasons where a particular religion does not authorize or recognize divorce.
When filing a petition for divorce or legal separation, the filing party has a duty to disclose to the court the conditions of any prior temporary or permanent restraining orders and civil protection orders to prevent domestic abuse, as well as any emergency protection orders entered against either party by any court within two years prior to the filing of the divorce petition or petition for legal separation.
If both of the parties, by petition or otherwise, have stated under oath that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, there is a presumption that such is the case. Unless controverted by evidence, the court is required, at the hearing, to make a finding that the marriage is irretrievably broken. If one party has denied, under oath, that the marriage is irretrievably broken, the court will consider all relevant factors, including the circumstances that gave rise to the filing of the divorce petition, as well as the prospect of reconciliation, and will: (1) make a finding whether the marriage is irretrievably broken, or (2) continue the matter for a further hearing not less than 30 days, or more than 60 days later, or as soon thereafter as the matter can be set on the court's calendar, and may suggest to the parties that they seek counseling. It is extremely rare that one party will claim the marriage is not irretrievably broken when the other party has so claimed. It would be even rarer that the court will engage in hearings associated with this issue. Rather, the courts in Colorado almost universally accept the filing party's position that the marriage is irretrievably broken.
A marriage can be declared invalid if entered into under the following circumstances: (1) a party lacked the capacity to consent to the marriage at the time the marriage was finalized, either because of mental incapacity or infirmity, or because of the influence of alcohol, drugs, or other incapacitating circumstances, (2) a party lacked the physical capacity to consummate the marriage by sexual intercourse and the other party did not know at the time of the marriage of this problem, (3) a party was under the age provided by law and did not have parental or guardian consent, or judicial approval, as provided by law, (4) one party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage, (5) one or both of the parties entered into the marriage under duress, (6) one or both of the parties entered into the marriage as a joke or dare, or (7) the marriage was prohibited by law, reasons for which would include: (a) the marriage was entered into prior to the dissolution of an earlier marriage, (b) the marriage was between an ancestor and antecedent, or between a brother and a sister, or (c) the marriage was between an uncle and a niece, or between an aunt and a nephew, or (8) the marriage was void by the law of the place where the marriage was contracted.
Parties are permitted to enter into an agreement (called a a Separation Agreement) to deal with the disposition of their property, allocation of parental responsibilities, support, and parenting time, and to deal with issues of alimony (maintenance). However, the court is required to review a Separation Agreement and make a finding that the same is not unconscionable. If the parties do not enter into a Separation Agreement to be presented to the court in conjunction with the court signing a decree of dissolution (divorce), there will be a trial of any issues which the parties have not agreed upon. This trial is called a permanent orders hearing and is subject to most of the rules associated with any other civil trial. However, there is no right to a jury associated with divorce cases. All divorce cases are tried before a judge.
As a general statement, all monies and property acquired during the marriage are considered marital property. However, there are three categories of property which would be considered by the court to be separate property. The three categories are: (1) any gift received by either spouse during the marriage to him or her alone is considered to be his or her separate property, (2) any property either spouse receives by way of inheritance to him or her alone will be considered his or her separate property, and (3) any property brought into the marriage by either spouse and maintained as his or her separate property during the marriage retains that characteristic. To the extent, however, any gift, inheritance, or property brought into the marriage appreciates during the marriage, the appreciated amount would be considered marital property.
Colorado is not a community property state. There is no law which requires the judge to split the assets equally between the parties or to provide "x" amount of property, dollar-wise or percentage-wise, to either spouse. Rather, Colorado is an equity state. This means the court will allocate the property between the parties based on what the court thinks is fair. With regard to alimony (maintenance), there is a statute which provides that when maintenance is required by a party, and when the combined annual gross income of the two parties is $75,000 or less, there is a rebuttable presumption in favor of the specific award of temporary maintenance from the higher income party to the lower income party based on a formula. If the combined income of the parties exceeds $75,000, there is no formula to be applied related to maintenance. Rather, it is the court which determines the amount of temporary and permanent maintenance.
The court, in determining maintenance, includes the following considerations in reaching a decision: (1) the financial resources of a party seeking maintenance, including marital property apportioned to such party and the party's ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party, (b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and that party's future earning capacity, (c) the standard of living established during the marriage, (d) the duration of the marriage, (e) the age and the physical and emotional condition of the party seeking maintenance, and (f) the ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those needs of the spouse seeking maintenance. Maintenance generally is awarded by a court until such time as either party dies or the spouse receiving the maintenance remarries. Maintenance amounts received by a party are taxable to him or her, while the party paying maintenance is allowed to deduct the amount of the maintenance payment on his or her tax forms.
The parties can agree to what is called a contractual maintenance. This means the parties can contract that one party will pay the other party "x" amount of money for "y" amount of time regardless of remarriage; however, the amount and duration of payment is non-modifiable. A court cannot order contractual maintenance but can enter an order approving a contractual maintenance agreement between the parties.
With regard to child support, the courts are required to consider relevant factors associated with the award of child support, which factors include: (1) the financial resources of the child, (2) the financial resources of the custodial parent, (3) the standard of living the child would have enjoyed had the marriage not been dissolved, (4) the physical and emotional condition of the child and his or her educational needs, and (5) the financial resources and needs of the non-custodial parent. Although these items are set forth by statute for the court's consideration, there is a chart/table in the Colorado statutes which lists, vertically, the combined gross income of the two parents, and also sets forth, horizontally, columns for one, two, three, four, five, and six or more children. Illustratively, if one has three children, and the combined income of the two parents is $10,000 per month, the chart/table would indicate the child support to be allocated between the two parents is $1,988 per month. If the combined income of the two spouses exceeds $20,000 gross income per month (the highest number on the chart/table), the court may award an amount above that shown on the chart/table for child support. There is no specific formula or amount of money which the court must award when the combined gross income exceeds $20,000 per month (the maximum amount set forth on the aforementioned chart/table).
For purposes of child support guidelines and schedule of basic child support obligations, there is a Colorado statute which indicates the type of items included as gross income of each parent so an appropriate dollar amount can be determined for calculation of child support. Gross income includes: (1) income from salaries, (2) wages, including tips declared by the individual for purposes of reporting to the IRS, (3) commissions, (4) payments received as an independent contractor for services, (5) bonuses, (6) dividends, (7) severance pay, (8) pension from retirement benefits, (9) royalties, (10) rents, (11) interest, (12) trust income, (13) annuities, (14) capital gains, (15) monies drawn by a self-employed individual for personal use, (16) social security benefits, (17) workers' compensation benefits, (18) unemployment insurance benefits, (19) disability insurance benefits, (20) funds held in, or payable from, any insurance to the extent the insurance replaces wages, (21) monetary gifts, (22) monetary prizes, (23) taxable distributions from business entities, (24) expense reimbursements, (25) alimony or maintenance received, and (26) overtime pay, only if the overtime is required by the employer as a condition of employment.
Gross income does not include: (1) child support payments received, (2) benefits received from public assistance programs, (3) income from additional jobs which result in the employment of the person who will pay of more than 40 hours or more per week than what would otherwise be considered to be full-time employment, and (4) social security benefits received by minor children, or on their behalf, as a result of the death or disability of a parent. Where a spouse is voluntarily unemployed or underemployed, the court has the power to impute income to that party.
In determining parenting time, the court must take into consideration the best interests of the child including the wishes of the parents related to parenting time, and the wishes of the child if he or she is sufficiently mature to express reasons and independent preferences as to the parenting time schedule. The court also takes into consideration the child's adjustment to his or her home, school, and community, the physical and mental health of all individuals involved, the ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party, whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support, the physical proximity of the parties to each other, whether one of the parties has been a perpetrator of child abuse or neglect, interaction and interrelationship the child has with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests, and the ability of each party to place the needs of the child above his or her own needs.
The court will enter an order indicating which of the spouses, or both of them, will have certain decision-making authority. The court may also appoint an individual to evaluate the child and the parents and make recommendations to the court associated with custody and decision-making, and may also appoint a guardian for the child to represent the child's best interests associated with custody and visitation issues. The court may also appoint a parenting coordinator or a third-party to assist in the resolution of disputes between the parties concerning parental responsibilities. The court also has the legal right to appoint a decision-maker or arbitrator to resolve disputes or to make appropriate decisions related to the child.
The judge has the power, after considering the financial resources of both parties, to order a party to pay a reasonable amount of the costs to the other party for maintaining or defending any claim or petition for divorce.