In Colorado, a divorce is actually called a Dissolution of Marriage. A dissolution can be done in one of three ways:

1. by default
2. by contest
3. by agreement (uncontested).

This will provide an overview only for the dissolution by agreement, or the uncontested divorce.

The process begins when one spouse files a Summons and Petition (and other supporting documents) with the Court requesting a Dissolution of Marriage.

Then that spouse must "serve" the other spouse with the Summons and Petition. There are many ways that a spouse may be served, and certainly ways that two cooperative spouses can avoid any embarrassment that may be created by serving a spouse in public.

The spouse being served with the paperwork has 30 days after proper service to file a Response. The spouse who filed the Summons and Petition is called the Petitioner and the other spouse is called the Respondent.

The next step may be to exchange financial information between the parties. Effective January 1, 1993, spouses in a dissolution are required to exchange court documents that disclose all information about their property and debts and full details of their income and expenses. The court provides a form to do this. It's called an Affidavit of Financial Affairs.

After financial information is exchanged, both parties have information to discuss the issues. Both spouses will need to decide how to divide whatever property and bills have accumulated during the marriage and if there will be spousal support and if so, how much for how long. If there are minor children involved, spouses must also decide how they will share the care and responsibility of raising the children and how much will be paid for child support and other related expenses.

Parties may need to agree on a few issues immediately before all issues have been decided. An interim or temporary agreement may be signed to address immediate needs. If the parties cannot reach a temporary agreement, then a Motion for Temporary Orders can be filed when either party needs temporary help regarding the allocation of parental responsibilities, child support, use of the family home, cars, or other marital property.

If the parties have negotiated and come to a final agreement, a marital settlement agreement or Decree is prepared. The Decree and supporting documents are filed with the court for the judge to sign and for the Decree to be entered. The Decree becomes enforceable as soon as it is entered. However, if the parties are unable to agree on an issue, either party may request a Permanent Orders Hearing to have a Judge resolve the dispute and enter a final Decree of Dissolution of Marriage.

Waiting Period

In Colorado, there is a ninety-day waiting period before a Dissolution of Marriage may be finalized. The ninety-day period begins at the time one party is served with the Summons and Petition, or the date a Joint Petition has been filed by the parties.

Residence Requirements

Either you or your spouse must have lived in Colorado for at 90 days just prior to filing the Petition.

Automatic Restraining Orders

• Some automatic restraining orders take effect in every case when the Summons is served. Both spouses are ordered by the court not to:
• Remove a child of the parties from the state without prior written permission of the other spouse or order of the court;
• Transfer, sell or encumber (borrow against) any property except in the usual course of business or for necessities;
• Cancel, transfer or borrow against any insurance (including life, health, auto, disability) held for the benefit of either the other spouse or a minor child.
• These orders remain in effect until the date you get your Decree.

Grounds for Dissolution

Colorado is a "no-fault" state. You do not need to actually state a reason for wanting a divorce. Neither party has to prove wrongdoing or fault of the other party. The only "grounds" or legal requirement for a Dissolution of Marriage in Colorado is that the marriage is irretrievably broken, and that is based on the opinion and testimony of only one of the parties. Only one spouse needs to decide that he or she wants a divorce.

Parental Responsibilities (formerly "Custody" and "Visitation")

Effective February 1, 1999, the Colorado Legislature changed the law and the terminology from the more commonly-understood terms of "custody" and "visitation" to the more succinct and accurate term of "parental responsibilities". The rationale for this change and terminology, and the change in the outlook toward these issues, is perhaps that the legislature believes that parents do not have rights to their children, as with their property, rather they have responsibilities to their children as parents, and that both parents maintain responsibilities for the children, even when there is a divorce. There are two types of parental responsibilities that the parents have, each of which must be allocated during a Dissolution -- "decision-making responsibilities" and "parenting time."

Effective February 1, 1999, Colorado law will no longer reference "custody" of children. Instead, Courts will be charged with allocating "parental responsibility." The new law applies to all cases filed after February 1, 1999, as well as any motions to modify previously entered orders filed after that date.

The change in the law is more than just a change in the terminology. With the new law, Courts will be able to designate certain decision-making responsibilities to either (or both) parents, while reserving other decisions to one parent only. Prior to the change, a party designated with sole custody had the right to make nearly all important decisions in a child's life, while a party with joint custody had a claim to assist in making nearly all important decisions.

The new law also separates the decision on parenting time from the award of decision- making responsibilities. It also requires the parents to file a proposed parenting plan which addresses the issue of parenting time (previously know as "visitation") and the allocation of decision-making responsibilities. Courts will be permitted to order mediation to assist parties in formulating parenting plans if the parties are unable to agree.

The purpose of the new statute is to recognize that both parents maintain responsibilities for the children, even when there is a divorce. This is consistent with the current movement in the area of family law which follows the axiom that it is inappropriate to use the word "custody" in reference to children. "Custody" is most closely connected to the ownership of property, and children are not property.

Allocation of decision-making responsibilities determines which parent will have the authority to make major decisions for the minor child or children. "Major decisions" are those that affect the health and well-being of the child, such as education, health and medical, and religion. Every day decisions are typically made by each parent when the child is spending time with him or her. Either parent may have sole decision-making responsibilities for the minor child or children, or the parents may share this authority. When decision-making responsibilities are shared between the children, the parents generally attempt to agree on major decisions. If agreement cannot be reached, one parent may have the ultimate authority, or the parents may resort to mediation, arbitration or court intervention to help the parents make the major decision. Courts in Colorado determine allocation of decision-making authority based on what is in the best interests of the minor children. In making this decision, Courts will consider many factors including the ability of the parents to cooperate, the ability of each parent to put the child's needs first, and the history of parenting by each parent.

The concept of parenting time is more recognizable by the former terminology "visitation". Parenting time involves the decision of with which parent the child or children will primarily reside, and where and when the other parent will have parenting time with the child or children. Parenting time is also determined based on best interests of the children, including what schedule is appropriate for children of a particular age. The ultimate goal for any parenting time schedule is to foster a meaningful bond between the child and each of the parents.

Where the parties are unable to reach an agreement on the issues of parental responsibilities, or a "parenting plan", especially where the disagreement is particularly acrimonious, the Court may appoint, or a party may request, a "child advocates" or "special advocate", or other licensed mental health professionals, to evaluate and determine for the Court what allocation of parental responsibilities would be in the best interests of the child or children.

Supervised Parenting Time

In cases where the one parent has a history of abusing drugs or alcohol, has been violent towards children or the spouse, or where allowing unsupervised access to the children would endanger them, the court may order "Supervised Parenting Time." Normally, the parenting time is only restricted until such time as the parent meets certain restrictions such as several months of drug/alcohol screening and counseling.

No Visitation/No Access

In cases where one parent can show that to allow any access between the other parent and the children would endanger or harm the children the court may order no access of any kind. It is extremely rare for the court to order that the other parent shall have no access whatsoever.

Removal of the Children

One of the most difficult parental responsibilities issues arises when one spouse decides to move away from the general geographic area. In 2001, the Colorado state legislature amended CRS 14-10-129 to specifically addressed the situation where parent with him the children primarily reside wants to move out of state taking the children with her or him. Generally, the "residential custodial parent" will be allowed to move with the children unless the "non-custodial parent" can show that the negative consequences of the move outweigh the benefits of keeping the child in state. Those factors the court is to take into consideration are:

• educational opportunities in each location;
• the presence or absence of extended families in each location;
• the feasibility of contact with and visitation by the non-custodial parent should the move be permitted;
• general quality of life considerations in each location; and
• the general quality of the relationship of the children with the respective parents in each location.

Grandparent Rights

Grandparents can play an important role in the development of their grandchildren. Unfortunately, the relationship between grandchildren and their grandparents is sometimes overlooked in a divorce or other custody-related proceeding. For example, a husband or wife who harbors hostile feelings toward his or her spouse may cut-off communications with his or her spouse's parents, and consequently cut off communications between a grandchild and his grandparents. Under Colorado law, however, grandparents may seek a court order granting them reasonable grandchild visitation rights when there is or has been a child custody case.

CHILD SUPPORT

Basic Concepts

The Colorado child support guideline is mandatory. Typically, a judge will use a computer program to calculate the amount. The guideline amount is presumed to be correct and judges can change that amount only if they hear evidence and find that special circumstances exist. Both parties are mutually and equally responsible for the support of their minor children. The guideline takes into account each parent's actual income and amount of time with the children. Parties may not agree to a child support amount less than the guideline. For income tax purposes, child support is not deductible as an expense by the person paying nor is it included as income to the party receiving it.

Calculation of Child Support

Child Support is generally determined by the Colorado Child Support Guidelines. The Dissolution of Marriage process involves both parties completing a Financial Affidavit that includes among other things: income of both parents, necessary expenses for the child(ren) such as child-care, health insurance costs, etc., and the party's monthly living expenses. The parties are also required to exchange pay stubs or payroll information for the past three months of employment in order to verify their income, as well as copies of federal and state income tax returns for the past three years. The verified monthly income of the parties, and the necessary expenses of the children are plugged into a spreadsheet to determine the amount of child support to be paid by the parent(s). Finally, in instances where the parents will each be spending at least 25% of the "overnights" with the minor child(ren) per year, then there is an adjustment made for the amount of time the children spend with each parent.

Duration

Generally, a child is entitled to support until that child dies, marries, becomes self-supporting or reaches age 19. If the parents agree in writing, support can be ordered through college or training. Support for a disabled minor or adult child who is unable to work can be extended for as long as the disability lasts.

Wage Assignment

A wage withholding or wage assignment for payment of child support may be issued by the Court and signed by a Judge. It can then be served on the employer of the party ordered to pay support. After the employer receives the Notice of Wage Assignment, the employer is required to deduct a specific amount and send it to the Child Support Registry or in few cases to the payee spouse directly.

Child Support Enforcement

A spouse who refuses or has failed to pay child support as ordered can be sued, brought before a Judge on contempt of court, have wages attached, have tax refunds intercepted, be required to post a security deposit, or any of several remedies. Help with enforcement is available from the Office of Child Support Enforcement, but you may wish to get your own attorney. Good record keeping is extremely important for both parties in case of future claim or disagreement. Keep them safe and keep them until the obligation for support is long over. Be sure to register your Decree in another state if the payor moves.

If you are a the payor, get periodic acknowledgments that your child support is paid and get a final acknowledgment and satisfaction of Decree when your child support obligation ends. This will protect you as a payer if years later, a claim is made for you to pay support and you no longer have your records of payment.

MAINTENANCE (SPOUSAL SUPPORT)

Spousal support orders are either temporary (while the Dissolution proceeding is pernding) or permanent. Usually, if spousal support is an issue, a judge will make a temporary order until there is an opportunity to determine permanent spousal support. Unless otherwise agreed in writing, spousal support automatically ends on remarriage of the supported spouse or the death of either spouse.

During the marriage, the parties often rely on the dual income of the parties, or the non-economic contributions that one spouse adds to the marriage while the other spouse is employed outside of the home and contributing financially to the marriage. Because the economic lives of the parties are so intertwined during the marriage, once an action is begun to dissolve the marriage the Court must look at whether the parties, as individuals, have the assets, income or earning ability necessary meet his or her financial needs, or if additional maintenance is required from the other spouse, taking into account the following factors:

(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(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 spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

Temporary Maintenance By Formula

Beginning on July 1, 2001, in any action for Dissolution of Marriage, or for Allocation of Parental Responsibilities, where the combined annual gross income of the parties is $75,000 or less, there is a rebuttable presumption in favor of an award of temporary maintenance from the higher-earning spouse to the lower-earning spouse equal to 40% of the higher-earning spouse's monthly gross income less 50% of the lesser-earning spouse's income. For example, if the husband's monthly gross income is $4,000 and the wife's monthly gross income is $2,000, then there will be a rebuttable presumption in favor of an award of temporary monthly maintenance in the amount of $600 (40% of $4,000, or $1,600 less 50% of $2,000 or $1,000).

Tax Implications of Maintenance

Maintenance or spousal support, whether temporary or permanent and whether in a lump sum or as a monthly payment, is tax deductible to the payer and includable as unearned income by the recipient.

DIVISION OF PROPERTY AND DEBTS

Colorado is an "equitable property" state. Generally, property acquired during the marriage is presumed to be "marital property", meaning that it is owned by both spouses and must be divided "equitably" upon dissolution of the marriage. The same is true for debts as well as assets. There are exceptions to this. Generally, those items acquired during marriage by gift or inheritance are the separate property of the spouse receiving it. In addition, all property that was acquired before marriage is presumed to be separate property as long as that property has been kept separate and not commingled (mixed up) with the marital property. Finally, any appreciation of the value of separate property during the marriage may also be considered marital, and therefore subject to an equitable division. Separate debts of the parties remain separate debts upon dissolution.

Retirement Accounts

Retirement accounts of the parties may be a large asset of the marriage. Under the Employee Retirement Income Security Act of 1974 (ERISA) a Qualified Domestic Relations Order "QDRO" may be ordered by a state court that will divide an ERISA-qualified employee benefit plan between the parties. A QDRO directs the plan to pay certain benefits to the other party. It is also possible to evaluate the current value of a pension plan and allocate that plan to one party and offset that value with other assets allocated to the other party. It is relatively easy to determine the value of a defined-contribution plan such as a 401(k) plan because the plan has a value of that account on any certain date. However, when there is a defined-benefit plan, the parties should obtain the value with assistance from an actuarial expert in valuing the present value of the plan.

POST-DIVORCE MODIFICATIONS

After the Dissolution is final, the parties may wish to modify the final Decree, and the terms of the parenting plan or child support obligations. There may be reasons to do so based on a change of circumstances such as change of income, remarriage, change of residence, change of scheduling or any of a number of life changes. If the parties agree to the change, an agreement can be written and entered with the court and it will modify the provision of the Decree. It will then have the same force and effect as the Decree. If the parties are unable to agree, then either party may file a Motion to Modify one of the terms of the Decree with the same Court that decided the original Dissolution of Marriage.

ANNULMENT/DECLARATION OF INVALIDITY

To get a marriage annulled in the State of Colorado, you must have legal grounds. Annulments are not based on time. Annulments are harder to get than a divorce. Grounds for an Annulment include: That you or the other party were still married to someone else when you were wed, you or the other party were under age and did not get proper permission to get married, you and the other party are blood relatives up to first cousins, you or the other party were married with the intention to defraud some other person, business, or government agency, you or the other party married with the intent to lie about your past history of criminal record, mental health history or other reasons as described by law, or you or the other party were physically unable to consummate the marriage. The petition and decree must state the legal basis for the annulment and the circumstances.

LEGAL SEPARATION

You can file a Legal Separation in the State of Colorado if you want to live a separate life from your spouse. A Legal Separation does not dissolve the marriage but it will result in a separation and distribution of the marital property and debts of the parties so you will no longer be legally responsible for your spouse. A Legal Separation will also decide the allocation of parental responsibilities for any children of the marriage as well as child support issues. A Decree of Legal Separation may be converted to a Decree of Dissolution of Marriage after six months by the filing of a Motion by either party. A Legal Separation is NOT a softer, kinder, gentler easier thing to do while waiting for an inevitable Dissolution of Marriage. If you believe that divorce is inevitable, we recommend that you do not file for Legal Separation, but wait until you are ready to file for Dissolution, as filing for Legal Separation may only increase the cost and time before you will be able to finalize this chapter of your life and move on.