Divorce/Family Law FAQ’s
How do I Obtain a Legal Separation/Dissolution of Marriage?
In the State of Colorado, there are only two, basic, legal requirements to obtain a divorce, now called a “dissolution of marriage.” These basic requirements are:
- That one of the parties, either the husband or wife, is or was a Colorado resident for the immediate ninety-one days prior to the filing of the Petition for Dissolution of Marriage.
- That one of the parties alleges that the marriage is “irretrievably broken.”
- It is also required that if there are children, the children have resided in the State of Colorado for six months.
What If My Spouse Cheated On Me?
There is not an “at fault” requirement to obtain a dissolution of marriage in the State of Colorado.
How Much Does It Cost To File For Divorce/Dissolution Of Marriage?
The filing fees for a divorce or dissolution of marriage are set by the clerk of court and are currently set at $230.00 In a regular divorce action the initiating party, or petitioner, must also serve a copy of the divorce papers on the other side. This cost is typically approximately $50.00. If you were served with a Petition for Dissolution of Marriage or Legal Separation, you must file a Response. The filing fee for a Response is approximately $95.00
How Much Will It Cost To Hire Kristine Hoben?
We understand that most people who file for divorce may not have unfettered access to unlimited financial resources; therefore, we offer payment plans and accept all major credit cards. Further, our retainer fees are reduced for clients who cannot afford to pay large lump sums for legal expenses. Our clients will find that our retainer fees are about one-half of what other firms charge. The cost for attorney services varies drastically from case to case and will be covered more thoroughly in your initial consultation.
What Documents Or Other Information Will I Have To File?
There are various documents that must be filed with the clerk of court when obtaining a dissolution of marriage. Many of these documents may be filed without the assistance of an attorney; however, many are also difficult to understand or navigate without the assistance of an attorney. Generally, most petitioners, or those who file a petition for divorce, will need to file the following documents:
- Petition and Summons for Dissolution of Marriage
- A Sworn Financial Statement
- Certificate of Compliance with Mandatory Disclosures
- A Certificate of Completion of Parenting Class (if minor children involved)
- A Completed Child Support Worksheet (if minor children involved)
- A Separation Agreement and Parenting Plan
What Will Happen To My Property After I File For Divorce?
The distribution of marital assets and liabilities are governed by Colorado law. Most states in the United States, including Colorado, are “equitable distribution” states, while few jurisdictions, such as California, are community property states where the assets are automatically divided 50-50. We understand the concept of equitable distribution and the law in the State of Colorado and will assist you in order to maintain all your rights to non-marital and marital property.
Equitable distribution does not always mean “equal.” Courts in Colorado generally try to start with an equal distribution of assets and then make an unequal distribution based on the parties’ specific circumstances and justifications.
Some of the factors the court will consider in awarding property to one party or the other include:
- Contributions to the marriage by each spouse, including care and education of the children and services as a homemaker;
- Economic circumstances of both spouses;
- The duration of the marriage; and
- Any interruptions of personal careers or educational opportunities, by either spouse.
Can I Get Maintenance Or Spousal Support?
After the equitable distribution of assets and liabilities of the parties, the court may grant maintenance to either spouse who requests it. There are different kinds of maintenance as follows:
- Temporary maintenance, which would allow for support for a spouse during the pendency of the divorce;
- Permanent Maintenance, which is often supported to allow for continued education or for training so that a spouse can become self-sufficient; and is determined by a Magistrate or Judge while taking into consideration multiple factors.
Primarily, the first consideration that a judge may make in awarding maintenance is the length of the marriage. The longer the marriage, the greater the possibility of an award of maintenance. There are other factors to consider which include, but are not limited to:
- The standard of living established during the marriage;
- The age and physical and emotional condition of each party;
- All sources of available income to either party;
- The ability of the spouse to earn a living without assistance (if one spouse is unable to be self-supporting through employment or assets set aside to them);
- The financial resources of the party seeking maintenance, including marital property apportioned to him and his ability to meet his needs independently;
- 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;
- The age and the physical and emotional condition of the spouse seeking maintenance;
- The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
- Whether or not a party is caring for a child whose needs require the party to remain at home.
If maintenance is not requested at the time of the divorce, it cannot be requested after the decree of dissolution of marriage is entered. Parties who waive maintenance waive their rights to request it forever.
There is a new maintenance statute in Colorado that provides a formula which is often, but not always, followed by the Judge and Magistrate.
What Is “Marital Property” and “Separate Property?”
Marital assets and liabilities are those that are acquired during the marriage and used during that time by the husband and wife. Non-marital assets or separate property are assets were either acquired before the marriage or during the marriage and not commingled with other marital assets, such as through inheritance or as a gift.
It doesn’t matter who has the property, who purchased the property, whose name the property is in, or whose name is on the load – if it was bought during the marriage, it is most likely marital property.
The Court will take the following into consideration when dividing marital property:
- Contribution each spouse made to be able to acquire property;
- The value of the marital property;
- The financial situation of each person and their ability to earn after the divorce
Marital Property Can Include:
- Life insurance policies
- Hobby collections
Separate Property Can Include:
- Property owned before marriage;
- Property acquired by inheritance or as a gift not commingled with marital property;
- Property the parties agree is not marital property;
- Property acquired after a decree of legal separation
- Certain veteran’s benefits;
- Property acquired in exchange for separate property.
The filing of the divorce does not change the rule that all property acquired until the granting of the decree is marital unless it fits within an exception.
How Is Parenting Time (Child Custody) and Decision Making Determined?
Parenting time will be determined based on the “best interests” of the child(ren). Often parents want “joint parenting” time. This can occur even if the parenting time is not equal.
Factors that the court will consider when applying the best interest standard include:
- The child’s relationships with others in his/her household;
- The child’s adjustment at home, at school, and in the community;
- The party’s physical and mental health (although disabilities in themselves cannot be held against either parent);
- Past history of parental involvement;
- Geographic distances between the parties;
- The ability of each parent to put the child’s needs first, ahead of his or her own needs;
- The preferences of the child’s parents;
- The preference of the child as to parenting time provided the child is of a maturity level capable of stating an independent preference;
- Any evidence that either parent has bee a perpetrator of domestic violence.
Decision-making can be assigned to one parent, or to both parents jointly, or to each parent for different issues. Decisions commonly include issues involving medical care, schooling, religion, sports, camp, and other extra-curricular activities.
The court will take into consideration the following:
- Whether the parents can cooperate and make decisions together;
- Whether the parents have a history of working things out together;
- Whether a parent’s decision-making role will help that parent have continuing contact with the child;
- Whether either parent has any convictions for child abuse or abuse of their wife or husband;
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision-makers to provide a positive and nourishing relationship with the child;
A Child and Family Investigator or Parental Responsibility Evaluation be ordered when decisions regarding the minor children cannot be reached by the parties.
Can I Get An Annulment?
In Colorado, an annulment is called a Declaration of Invalidity. An annulment is the same as if your marriage never happened. You can get an annulment only for certain reasons. An example of some reasons are:
- You/your spouse were under 18 and your parents/guardian didn’t consent;
- You/your spouse were mentally unable to understand you were getting married (for example, intoxication);
- You/your spouse entered into the marriage as a jest or dare;
- You/your spouse were unaware that the other would be unable to consummate the marriage;
- You/your spouse entered the marriage under duress (example, shot gun wedding);
- The marriage is against the law (for example, one party is still married to someone else, the parties are too closely related);
- You/your spouse lied about something very important to your marriage (for example, if your wife told you she wanted kids, then you find out she knew she couldn’t have a child)
In order to obtain an annulment, the party must convince the court that you wouldn’t have gotten married otherwise.
If I Have Never Worked, Can I Get Social Security?
If your spouse has worked and you have not worked, or worked very little, and if you have been married for 10 years or more, you are entitled to one-half of your spouse’s Social Security or your own, whichever is higher even if you are divorced. Your spouse still retains 100% of his/her Social Security benefit. This is an automatic guarantee and therefore it is not a negotiation point in a divorce.
How Can I Be Common Law Married?
In Colorado, you don’t have to actually “get married” to be legally married. The court looks to a three-prong test to determine if you are married under common law. There is no waiting period in Colorado to be married under common law and contrary to popular belief you do not become “married” if you reside together for seven years.
Three Prong Test For Common Law Marriage Includes:
- Did the couple hold themselves out as married?
- Did the couple have the intent to be married?
- Did the couple co-habitate?
Common evidence of Common Law Marriage is the filing of joint tax returns, documents that list the parties as spouses including medical insurance and/or household bills, and the parties are listed as spouses on the title to assets.