- How soon until my divorce is final?
- Should I expect a 50:50 split of our assets in a divorce?
- Should I expect an equal division of parenting time?
- Is “joint decision-making” the norm?
- Will I have to pay child support?
- Will we have to mediate?
- What about spousal support?
Whether divorce, legal separation or allocation of parental responsibilities, if parties file together, the clock starts on the date of filing. Provided the parties complete financial disclosures and file a Separation Agreement and Parenting Plan that evidences agreement as to all issues, a Court may issue a Decree of Dissolution or Legal Separation or an Order Allocating Parental Responsibilities on the 92 day after the date of filing.
Domestic relations courts are courts of equity and are charged with deciding issues, including the division of property, in a way that is fair and equitable. Equitable does not mean mathematically equal. However, in the vast majority of cases, the court will start its analysis from an equal division and then examine the facts and circumstances to determine if an unequal division is warranted. Special facts and circumstances that may impact the court’s determination include the relative economic circumstances of each spouse at the time the property division is to become effective, the contribution of each spouse to the acquisition of the marital property (including the contribution of a spouse as a homemaker), the allocation of marital debt, and 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.
The legislature has mandated that children have the right to have parenting time and decision-making determined upon the best interests of the child. In determining the best interests of the child for purposes of parenting time, the Court shall consider the following factors: the wishes of the child’s parents as to parenting time, the wishes of the child if he is sufficiently mature to express reasoned and independent preferences, the interaction and interrelationship of the child with her parents, siblings and significant others, the child’s adjustment to his home, school and community, the mental and physical health of all (Except that a disability alone shall not be the basis to deny or restrict parenting time), the abilities 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, and the ability of each party to place the needs of the child ahead of his or her own needs.
In Colorado, each parent is entitled to reasonable parenting time with the child unless the Court finds that parenting time would endanger the physical health or significantly impair the emotional development of the child. Special facts and circumstances that may impact a Court’s decision regarding parenting time may include the age of the child, whether the request for parenting time would necessitate additional daycare, any special needs of the child, and geographical distance between the parties’ homes or between the homes and the child’s school.
In determining the best interests of the child for purposes of allocating decision-making responsibilities, the Court shall consider the following factors: credible evidence of the ability of the parties to cooperate and make decisions jointly, 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, and whether an allocation of mutual decision-making responsibility will promote more frequent or continuing contact between the child and each of the parties. When there is credible evidence of child abuse, sexual assault, or neglect or domestic violence, the Court must consider additional factors in determining that joint decision-making is still appropriate.
Joint decision-making is the norm in most cases, unless the Court finds by credible evidence that the parties simply cannot communicate effectively or that one party has committed an act of child abuse or neglect or committed an act of domestic violence against the other party. In those instances, the Court must consider additional conditions to ensure the safety of the child or abused party.
The Colorado legislature has determined that both parents owe their child a duty of support and has provided the parties a schedule of basic child support obligations to use as rebuttable presumption for the establishment or modification of the amount of child support. Parties are not allowed to agree between themselves that neither will pay child support. The elements that impact the bottom line number are the gross monthly incomes of each party, the number of overnights a child spends with either parent, the number of other joint and/or non-joint children a party is supporting, the amount of monthly health insurance premium attributable to the child, and the amount of any extraordinary medical or other costs associated with the child. Importantly, income for purposes of child support is defined as income from all sources however derived, with very few exceptions. For income from self-employment, gross income means gross receipts minus ordinary and necessary expenses required to produce such income. If a parent is voluntarily unemployed or underemployed, the Court will impute income to a party based on a determination of potential income, unless the parent is physically or mentally incapacitated or is caring for a joint child under the age of 30 months. The Court may deviate from the presumptive guidelines where its application would be inequitable, unjust or inappropriate. Common reasons to request a deviation include extraordinary costs associated with parenting time, gross disparity in income between parties, the ownership by one party of a substantial non-income producing asset, certain types of overtime or income from employment that results in the employment of the obligor for more than 40 hours per week.
Judicial districts issue case management orders to govern the procedural aspects of the case and the obligations of the parties and counsel during the case. Currently, mediation is required in the metro counties of Denver, Jefferson, Boulder and Weld counties, but not in Adams or Broomfield counties.
The legislature significantly changed the maintenance statute effective January 1, 2014. The statute now includes advisory guidelines for the amount of maintenance and length of time for maintenance to be paid. The new act applies to cases filed after January 1, 2014. For modification of awards established before January 1, 2014, the Court must use the statute in effect at the time of the filing of the action. For marriages of at least three years and the majority of cases, the presumptive amount equals 40% of the higher income party’s monthly adjusted gross income minus 50% of the lower income party’s monthly adjusted gross income; however, the lower income party’s income with maintenance shall not result in the recipient receiving more than 40% of the combined monthly adjusted gross income. For marriages between three and twenty years, the maintenance statute contains a chart with the number of months of maintenance which is between 31%-50% of the length of the marriage. For marriages longer than twenty years, the Court may award maintenance for a specified term of, in most cases, at least 120 months or for an indefinite term. For marriages shorter than three years, the Court will consider the circumstances of the parties and whether the distribution of marital property is insufficient to achieve and equitable result before determining whether to award maintenance.
Among the factors that are important to a Court in considering an award of maintenance are the financial resources of the recipient spouse and payor spouse, including income form separate or marital property or any other source, the lifestyle during the marriage, the distribution of marital property (including, importantly, whether an unequal distribution may reduce or alleviate the need for maintenance), both parties’ income, employment and employability, and earning history, the duration of the marriage, the amount and term of temporary maintenance paid to the recipient spouse, the age and health of the parties, significant economic or noneconomic contribution to the marriage, whether the circumstances of the parties at the time of
permanent orders warrant the award of a nominal amount of maintenance in order to preserve a claim of maintenance in the future, and any other factor that the Court deems relevant.
All court-ordered (as opposed to contractual maintenance as part of an agreed Separation Agreement) maintenance may be modified upon a showing of changed circumstances so substantial and continuing as to make the terms of the original award unfair. Common grounds for modification include retirement or significant health issues. Changes in employment or income do not automatically provide a basis for modification.