How to Get Divorced In Colorado
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I have been practicing law in Colorado for 20 years and have handled hundreds of divorce cases. Over time it has become obvious that many people have the same basic questions at the beginning of a divorce case so I have listed the most common and answered them below.
COLORADO DIVORCE BASICS - FREQUENTLY ASKED QUESTIONS
WHO FILES FIRST? Or more specifically, does it matter who files first?
- NO, it does not matter who files first. The judge does not care who filed the case even if it is filed jointly (i.e. where both parties sign the Petition and file it together.)
DOES IT MATTER WHY I AM GETTING DIVORCED?
- Generally, no. Colorado is a “no fault” state and in essence the court does not care and is not allowed to care why your marriage is ending.
- Exceptions: 1) the court will care if you are getting divorced because of child abuse/neglect allegations as that can have a tremendous impact on custody; 2) the court will also care if you are getting divorced because someone has a drug habit or gambling habit etc. that has resulted in wasting significant marital assets as such circumstances can impact how the court divides property.
HOW DOES THE CASE GET STARTED?
The Petition is rather simple to complete and though it is several pages long, most of those pages will require nothing more than checking a few “NO” boxes and leaving other sections blank as they will not apply to 95% of cases.
HOW SOON WILL I BE DIVORCED?
- Under Colorado law, a divorce decree (the document from a judge that officially ends the marriage) cannot be issued any sooner than 92 days after the Respondent has been served (or after the case was filed if both parties signed the Petition). This means that even if a complete agreement has been reached and put in writing, it cannot be acted on by the judge until that 92nd day.
- In a contested case scenario where some or all major issues are not resolved by agreement, the average case takes about 6-7 months in El Paso County.
HOW MANY TIMES WILL I HAVE TO GO TO COURT?
- Short Answer: it depends.
- If a full agreement is reached and both parties are represented by an attorney, you might not ever set foot in the courthouse.
- If a full agreement is reached and one or both parties are not represented by an attorney, you will likely only have one brief appearance in front of the judge to review and approve your agreement.
- In a contested case there are typically no more than two court hearings, one for temporary orders and one for final orders (also called permanent orders).
- You might also have to go to the courthouse shortly after the case is filed for an “Initial Status Conference” but that is not a hearing. It is just a scheduling conference to set various deadlines.
WHAT IS TEMPORARY ORDERS?
- A temporary orders hearing typically takes place within 3 months of the case being filed and is only scheduled if one or both parties want it. It is designed for the court to enter orders on a temporary basis (i.e. while the case is pending) on a range of issues including but not limited to: parenting time, child support, spousal maintenance (often still referred to as alimony), who pays what bills/debts while the case is pending, who will have sole possession of the marital residence while the case is pending, etc.
WHAT IS FINAL ORDERS?
- This is the hearing that resolves any issue that has not been agreed to and where that court officially divorces you. You might have a final orders hearing on all issues or just one (if you settled all others).
SHOULD I LEAVE THE MARITAL RESIDENCE?
- If you don’t have kids, leaving the marital residence has no legal impact at all.
- If you have children, leaving the marital residence might mean you don’t have much parenting time with your children until you can have a temporary orders hearing but it is not a sign that you have abandoned your children.
- REGARDLESS of your circumstances, if you don’t feel safe staying at the marital residence with your spouse once the case is filed, get out!!
DO I HAVE TO HAVE MARRIAGE COUNSELING BEFORE I FILE?
- NO, it is not a legal requirement. That said, I recommend that everyone do all he or she can to save the marriage.
HOW IS PROPERTY DIVIDED?
- This can be a little complicated so I will just touch on a few basics:
- Colorado is NOT a community property state so the judge is not required to divide marital property 50-50 but in most case judges will try to make an equal or nearly equal division.
- How property is titled does not necessarily matter. Generally, anything acquired by either spouse during the marriage (except via inheritance or gift) is automatically marital property and it does not matter if a particular piece of real estate or a vehicle or account is titled in only one person’s name.
HOW IS CHILD SUPPORT CALCULATED?
- There is a specific formula in Colorado and various numbers contribute to the “bottom line” but it is generally driven by the gross monthly income of each party and the number of overnights with the children each party has per year.
- There appears to be a rather common misconception that if parenting time is split 50-50, then no one will owe child support. This is completely FALSE. Even with 50-50 parenting time, if one party has a higher income than the other party, child support will likely be owed.
HOW IS SPOUSAL MAINTENANCE (ALIMONY) CALCULATED?
- Colorado has a guideline formula that calculates the monthly amount by taking 40% of the higher income earner’s gross monthly income and subtracting from that 50% of the lower income earner’s gross monthly income.
- EXAMPLE: Wife makes $4,000 gross per month: 40% of that is $1,600.Husband makes $2,000 gross per month: 50% of that is $1,000.
So the guideline establishes a monthly amount of $1,600-1,000= $600 per month of spousal maintenance.
- The guidelines also suggest a duration for the court based on the total months of marriage. For example, a marriage of exactly 10 years (120 months) might show a suggested term of maintenance of 53 months (4 years, 5 months). So the higher income earner might be ordered to pay $600 per month for 53 months.
- HOWEVER, the court has great discretion is awarding maintenance. While most judges will stick with the guidelines or something very close, in some circumstances the judge may deviate from the guidelines dramatically.
- ALSO, keep in mind that the guidelines only apply to marriages of at least three years in length.
- LASTLY, before even calculating maintenance, the court has to find that there is a “need” and that the other party has the “ability to pay”.
Hopefully I have covered the basics for you but if you have more questions or if you would like to set-up an initial consultation please call me at 719-471-7956.
- El Paso County (President, New Lawyers Section, 1998-1999)
- Colorado Bar Association
- Virginia Bar Association
- Jacksonville University, B.A., (summa cum laude, 1992)
- Syracuse University, (J.D., 1996)
- El Paso County Bar Association
- Colorado Bar Association
- Virginia Bar Association