Colorado family law matters encompass a wide range of topics, including: divorce, child custody, child support, alimony/maintenance, and division of marital property. Unfortunately for people living in the State of Colorado, the laws and rules that govern Colorado family law cases are more confusing than most states. Because of this, it is necessary for individuals in the middle of a family law matter or who believe themselves to be about to begin one, to learn the basics of how the law affects their specific circumstances. This primer on Colorado family law will serve as the first step to understanding how the law affects individuals and how to apply the basics to their case. The next step is deciding if additional help is needed, and we can help there as well – by connecting you for free to a local Colorado family law specialist that can assess your needs and help obtain the rights every person deserves.
Colorado Divorce
Colorado is one of an emerging group of states that no longer requires that an individual prove any specific “grounds” to obtain a divorce. For example, Colorado no longer allows a person to file for divorce and be forced to prove infidelity, abuse, or desertion. Instead, Colorado’s only “grounds” for divorce is that the parties allege that the marriage is irretrievably broken (Colorado Revised Statutes 14-10-106(II)). Many people understand this to be a “no-fault” divorce, because finding fault in one or both spouses for the breakdown of the marriage is not required. For further reading, Colorado divorce is governed by specific statute, found here at Section 14-10-106.
There is good reason why Colorado and many other states have moved to or are moving towards this “no-fault” divorce process. Simply put, when an individual in the past was forced to prove a ground for divorce (such as infidelity, abuse, desertion, etc.), a huge burden was put on that person to provide court-required evidence that would be admissible at trial. This meant that even short marriages with no property or children involved, could end up taking years to complete and cost the spouses thousands of dollars trying to prove their divorce grounds. With these grounds eliminated, the courts in Colorado can now move on to substantive issues in the divorce such as child custody, division of property, and maintenance issues rather than waste valuable time deciding who cheated on who.
Residency Rules in Colorado
Colorado Revised Statute Section 14-10-106 states that for a person to file for divorce in the State of Colorado, they must first be a resident for at least 91-days. This is a requirement that virtually every state requires (some require longer residency periods) to avoid people intentionally moving to Colorado quickly to file for divorce specifically to impair the rights of the other spouse.
Mandatory Waiting Period
Colorado also requires that individuals that file for divorce go through a mandatory waiting period before a judge will grant their divorce. For practical purposes, this means that you cannot file for divorce and have it completed that same day. In fact, Colorado Revised Statute Section 14-10-106(III) states that:
“The court (must) find that ninety-one days or more have elapsed since it acquired jurisdiction over the respondent either as the result of process pursuant to rule 4 of the Colorado rules of civil procedure or as the result of the act of the respondent in joining as copetitioner in the petition or in entering an appearance in any other matter.”
This is extremely confusing to anyone that is not a practicing family law attorney in Colorado. What this means is that, the soonest you can divorce in Colorado, if it is a completely uncontested divorce where both parties sign and file their required paperwork at the same time, is 91-days after filing the divorce and having both parties having entered their appearance in court. The other end of that is that the respondent (the spouse that did not file the divorce case) be served by the Sheriff with divorce papers and a summons. In that scenario, the fastest the divorce can be completed is 91-days after the respondent spouse is served with the petition for dissolution of marriage and summons.
Property Division in Colorado
Colorado property division rules during a divorce follow a set of guidelines known as the “equitable distribution of property.” There are two types of states when it comes to how they divide property during a divorce: 1. Community Property States and 2. Equitable Division of Property States; Colorado is the latter. Colorado divorce judges rely on case law and Section 14-10-113 of the Colorado Revised Statutes to determine how marital property is divided equitably during divorce.
An “equitable division of property” does not mean an “equal” division of the marital property. Quite the contrary, it means that the judge will determine what she/he believes is a “fair” division of property under the specific circumstances of each case. In most cases, it is pretty much a 50/50 split of property (and debts!), but there are many situations that call for the property to be split in a way that gives a larger share of the property (or debts) to one spouse over the other spouse.
So, what exactly is marital property according to Colorado family law judges anyway? Marital property is any property (income, real estate, personal property, investments, etc.) that is acquired during the time the spouses are married up until the date of divorce. This is important to understand – marital property does not stop accumulating simply because the divorce was filed. If a spouse wins the lottery the day before the final divorce hearing, that lottery win is marital property and it will be divided “equitably” by the court.
In fact, Colorado lays out some specifics in their statute detailing what type of property is and is not marital property:
Section 14-10-113(2):
“Marital property” means all property acquired by either spouse subsequent to the marriage except:
(a) Property acquired by gift, bequest, devise, or descent;
(b) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(c) Property acquired by a spouse after a decree of legal separation; and
(d) Property excluded by valid agreement of the parties.
The court can use a variety of factors to determine how to divide the marital property acquired by the parties. The most common are found in the Colorado Revised Statutes:
Section 14-10-113: Disposition of Property:
(a) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(b) The value of the property set apart to each spouse;
(c) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time; and
(d) Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.
Generally speaking, the courts try to find reason for a 50/50 split of marital property as it makes it easier for them to justify their ruling. However, in a situation such as a homemaker that will be keeping residential custody of the children versus a high income earning spouse that is moving out of the house, many times the court will award the marital home to the homemaker spouse because the responsibility to care for the children in a suitable home trumps the fact that the other spouse paid for the house.
Alimony / Spousal Maintenance
When people decide to divorce, the financial “deal” that the marriage kept in place has ended and in many instances, one spouse is a significantly higher earner than the other. Whether by reason of one spouse being a homemaker, not being as highly educated, or simply not having a job that allows for as high a paying salary, a disparity in income levels may exist. Alimony (also called maintenance) is a method of leveling the field during and post-divorce for the lower earning spouse by requiring the higher-earning spouse to provide financial assistance to the other.
Colorado law, found at Section 14-10-114 of the Colorado Revised Statutes, governs awards of spousal maintenance. Colorado is a state where awards of maintenance are more prevalent than most other states because of how the law is written and applied by divorce judges.
Section 14-10-114(2)(1): In every proceeding for dissolution of marriage or legal separation when temporary maintenance is requested by a party and when the combined annual gross income of the two parties is seventy-five thousand dollars or less, there shall be a rebuttable presumption in favor of a specific award of temporary maintenance from the higher income party to the lower income party based upon the formula set forth in paragraph (b) of this subsection (2). In those cases in which the combined annual gross income of the parties exceeds seventy-five thousand dollars, the court may award a monthly amount of temporary maintenance pursuant to the provisions of subsections (3) and (4) of this section.
Put in easier to understand terms, this means that Colorado courts believe that when the combined income of both spouses is less than $75,000/year, the higher earning spouse has an obligation to assist the lower earning spouse during the divorce process on a temporary basis. If the combined income of both spouses is greater than $75,000/year, the divorce judge can order temporary spousal maintenance to the lower earning spouse under much more narrow circumstances.
In making a decision to award spousal maintenance to one spouse or to deny the request for spousal maintenance, the courts follow Section 14-10-114(3)(a)(I) of the Colorado Revised Statutes which provides factors to be used by the judge regarding the spouses:
Section 14-10-114(3)(a)(I)
(A) The amount of each party’s gross income;
(B) The marital property apportioned to each party;
(C) The financial resources of each party, including but not limited to the actual or potential income from separate or marital property; and
(D) Reasonable financial need as established during the marriage.
The statute goes on to then require that certain formulas be used to determine how much maintenance should be paid to the other spouse and for what length of time the spousal maintenance should be paid. Spousal maintenance is a common topic that divorcing couples fight tooth and nail over and for good reason – it could cost a payor spouse tens of thousands of dollars for years into the future once they are divorced. When dealing with potential spousal maintenance issues, it is always best to utilize any legal resources available, including the hiring of a local Colorado divorce attorney.
Colorado Child Support
Of concern to all individuals who have children and are either involved in a divorce or have not been married but have had children with another person is the issue of child support: who has to pay and how much is paid. Colorado is one of about half of the states in America that calculates child support by taking both parents income into account. This is known as the “Income Shares Model” of child support. Where some states simply base child support off of a percentage of the non-residential parents income, Colorado utilizes a system that requires the completion of worksheets to properly factor who should pay and how much.
Colorado child support is governed by and can be found here at Colorado Revised Statute Section 14-10-115. The law states:
Section 14-10-115(2): Duty to Support
“ . . .the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for the child’s support and may order an amount determined to be reasonable under the circumstances for a time period that occurred after the date of the parties’ physical separation or the filing of the petition or service upon the respondent, whichever date is latest, and prior to the entry of the support order, without regard to marital misconduct.”
Colorado child support law further goes into specifics about how the calculation of support is to be decided based on common factors such as:
(I) The financial resources of the child;
(II) The financial resources of the custodial parent;
(III) The standard of living the child would have enjoyed had the marriage not been dissolved;
(IV) The physical and emotional condition of the child and his or her educational needs; and
(V) The financial resources and needs of the noncustodial parent.
The State of Colorado’s Judicial Department website lists specific forms to use to electronically calculate the amount of child support that should be paid. The forms can be found here: Colorado Judicial Branch Child Support Forms. There are 2-basic sets of forms that a person can manually fill out, depending on their specific circumstances, which is determined by the Colorado Child Support Guideline instructions. They are described below.
The first form is here: “Worksheet A – Form JDF 1820M.” Worksheet A is to be used by parents in a situation called “Sole Physical Care.” This means that if the primary residential parent of the child(ren) has the children for 273 or more overnight periods per year, you use Worksheet A.
The second form is here: “Worksheet B – Form JDF 1821M.” Worksheet B is to be used by parents in a custody arrangement known as “Shared Physical Care.” This means that if the parents each spend at least 93 or more overnight periods with the child(ren) per year, you use Worksheet B.
In determining the amount of child support that needs to be paid, it is necessary to have the proper financial documentation from each parent as to their exact income. If one parent is unwilling to provide this information, a court order can be entered by the judge requiring that parent to turn over their tax returns, W-2’s, and paystubs so that they can be examined. Colorado child support attorneys frequently also subpoena work and bank records from parents who are reluctant to provide the necessary financial papers so that the actual amounts can be verified to make sure fraud has not taken place with fake paystubs or unfiled/false tax returns.
As if this wasn’t enough to figure out, Colorado also allows for additional expenses for the children to be split by the parents such as child care so the residential parent can work, out of pocket health expenses for the child, or the payment of health insurance so that the child is properly insured.
Colorado Child Custody
Colorado is one of a minority of states that has abolished the use of the phrase “joint custody” or “sole custody.” Beginning in 1999, Colorado rewrote the law so that “custody” was replaced with “Allocation of Parental Responsibilities.” Since then, a few other states have begun to follow suit. Colorado child custody cases (allocation of parental responsibility) are governed by Section 14-10-123 of the Colorado Revised Statutes.
What does this “allocation of parental responsibilities” mean in real life exactly? Just as before the law was rewritten and in every state across America, Colorado family law judges utilize an opinion based on the “best interests of the child” standard. Numerous factors go into making this determination for which parent should have responsibility for specific events in a child life. Colorado Revised Statutes have laid out the most prominent factors to be considered as being:
Section 14-10-124 Best Interests of Child:
(I) The wishes of the child’s parents as to parenting time;
(II) The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
(III) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
(IV) The child’s adjustment to his or her home, school, and community;
(V) The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
(VI) The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party’s protective actions shall not be considered with respect to this factor;
(VII) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
(VIII) The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
(IX) and (X) Repealed.
(XI) The ability of each party to place the needs of the child ahead of his or her own needs.
Quite simply, the court will try to make a determination as to which parent is most able to and has in the past, provided specific tasks and responsibilities for the parents’ child. The court will then, after making a determination as to which parent will have primary parental responsibility (which parent will be the primary residential parent with whom the child lives full-time) and which parent will have visitation (called “parenting time”) with the child. The court may decide that most decisions affecting the child’s life such as choice of schools, doctors, etc., be made jointly by the parents.
The court may also decide that some specific decisions should be made by only one parent. An example of this would be where one parent is a nurse and the other parent is a school teacher. A Colorado judge may assign the rights and responsibilities of schooling solely to the teacher parent and the rights and responsibilities of medical care solely to the nurse parent.
In an effort to assist parents in avoiding conflict and argument in front of and surrounding the children, the courts are able to impose on the parents a requirement that they attend parental education classes, in accordance with Colorado Revised Statute Section 14-10-123.7. While this may seem as though it is an attack on the quality of the parents involved, it is actually a helpful way to alleviate conflict so that the ability to co-parent in the future may exist for the best interests of the child.
What is a Typical Colorado Parenting Schedule?
While there is no one-size-fits-all when it comes to putting together a parenting schedule for the parents of minor children in Colorado, there are some schedules that are routine when it comes to deciding which parent will have the children on specific days. Colorado family law courts require that a parenting plan be submitted to the court, whether it is agreed by both parents in its entirety, agreed to in part, or even where no agreement is found between the parents as to the allocation of parental responsibility. Colorado requires the use of Form JDF 1113 – Parenting Plan to be filled out and given to the judge whether there is agreement or not.
One type of schedule is where the parents employ joint shared parental time with the children. This could be one week with one parent, the next week with the other parent. Unless the parents live in very close proximity to each other (the same school district), most judges do not like this situation as it can be a distraction for kids during the school year.
Another more typical type of parenting schedule is where one parent has primary parental responsibility (residential custody) and the other parent has parenting time (visitation) with the children. In this scenario, the parent with parenting time (visitation) would have the children overnight every other weekend as well as one evening after school each week. The parties, in either situation, would then work out how to divide school breaks, holidays, and birthdays to maximize parenting time and allow for both parents to have the opportunity to share in special days with their children.
Colorado Father’s Rights
For practically the entire 20th century in America, fathers of children have been denied equal treatment to child custody compared to mothers. Studies done by psychiatrists and therapists in the past stated that it was best for a mother to be the primary parent responsible for the children and they were almost always awarded custody of the children no matter how good of a parent the father was. Part of this reasoning was based on a now outdated belief known as “The Tender Years Doctrine.” The Tender Years Doctrine stated that mothers were more important than fathers during the formative, or “tender years” of a child’s life, and therefore, a mother should be granted primary custody of the kids.
A lot has changed over the years, and now, Colorado law has been rewritten to specifically make the laws application fair to either a male or a female parent. No longer are the rights of fathers placed second to a mother in the eyes of the written law. Unfortunately, in application in real-life, mother’s still win the majority of custody disputes over a father in Colorado. Father’s rights attorneys have begun to pop up across the state and they specifically fight for a father’s right to custody, visitation and child support.
Because of this, father’s still face a more difficult battle than a mother typically does and so great care must be taken to make the right steps well in advance of any thought to starting a custody fight. This means avoiding pitfalls that can derail your case. This means that a father must be present for all doctors’ appointments, school plays, athletic activities, and must change diapers. A father needs to build a rapport with teachers, priests, and the child’s friends’ parents so that if called a as witness, they will testify that dad is always present, maybe even more so than mom. Finally, a father needs to support his child. This means working hard at a job and “bringing home the bacon”, because even though outdated in conception, in reality, a judge wants a dad to be able to provide more financially than the mother and do everything the mom does and more.
The Next Step
A lot of important information has been covered in this primer on Colorado family law. Applying the laws above and the explanation of those laws to the specific facts and circumstances of your individual case is the first way to get an idea what your rights are and how to get them. The next step, possibly the most important step of all, is determining what level of help you need going forward. For some, going it on their own can be possible, but for most, with no assistance from a professional, disaster will occur. We can help with step two by connecting you – at no cost – to a local Colorado family law professional in your area that can let you know how they can guide you further through this challenging time. Continue learning more by reading our blog for helpful tips and don’t give up the fight – you can be successful in your Colorado family law case if you prepare and continue to gain knowledge of the laws that affect your case.