THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 1)

June 2, 2012

At the end of April, I posted an article regarding the timing of filing your Colorado divorce case. Though I had strived to start answering questions sooner, May slipped away from me, with my children's school ending, vacations, and the busy pace that comes with being a Denver divorce attorney.

As we move into June, I am now refreshed, focused, and back in the literary saddle, ready to continue informing my readers as to all aspects of Colorado custody, divorce, and child support law. Below are what I will call "Round 1" of the answers and explanations related to the questions posed in my last posting.

As each divorce and custody lawyer in Denver has his or her own opinion, my answers and explanations are subjective in nature. Furthermore, there is no "right" or "wrong" answer and there are many differing factual variables which, in a real life divorce setting, could change the answer or explanation set forth below.

1. My husband is the primary bread winner and just lost his job. WAIT.

I answered this question with "wait" based on concerns regarding income and the assessment of alimony (maintenance) and child support. Contested Denver area divorce cases can take anywhere between 4 months and 2 years, depending on which county your case is in. That certainly would give the husband in this scenario plenty of time to find a job. C.R.S. 14-10-115, and case law interpreting such, indicates that you look to a person's employment or income potential. At the same time, the court is not going to automatically use the husband's prior income for purposes of assessing child support or alimony. The wife needs to wait a while to see what shakes out with the job search. At a "temporary orders" hearing, the court is going to look at the current financial status quo when assessing financial orders to govern while the case is pending. Likewise, if husband is still unemployed at the final or "permanent orders" hearing, this will likley affect the outcome on the issue of alimony, including potentially a claim for such against wife if she works and huband does not. A little patience is needed in this scenario, as no job for your soon to be ex spouse can either leave you receiving less, or even potentially paying more.


2. I am the primary bread winner and got laid off a couple of months ago. My husband works. FILE

In essence, the answer of "file" to this question is almost the reverse of the answer to Question #1 above. If you have been the primary breadwinner and the one who will likely be bearing the financial burden of supporting the other party, it is better for you to file your Denver divorce while you are in a lesser financial position, thereby making it less likely for the court to ding you financially in a battle over alimony, child support, or attorney fees. You must keep in mind that the court will still, of course, be looking at what efforts you make, or have made, to find similar employment. Thus, the job loss is not a free pass, but could mitigate your damages in the sense of what you might ultimately be paying your spouse.

3. My husband has hit me and threatened to kick me out of the house. FILE (now)

Reflecting on this question I wrote back in April, I am left pondering what I was really trying to say or convey? The question is somewhat silly as written. I believe I intended to insert the word "pre-marital" into the equation. Presuming such, my answer will stay the same. Though a husband or wife cannot just "kick" the other out of the house, it can be argued that a home owned by one spouse prior to a marriage is his or her separate property. As such, one could argue that that spouse could legally try to evict the other or, in an even more cruel fashion, call the police to argue trespassing or something along those lines. Though the court can ultimately order the second spouse out of the house, it would likely be a few months until such occurred. The filing of the divorce upon such a threat lets the court system and the polcie know that a divorce has been filed. It also establishes a status quo at the time of filing of the other spouse also being in the home. When the first spouse either foolishly files that eviction action or the police are called, the divorce case pending should prevent any action from being taken prior to the divorce court making a ruling. In a best case scenario, the divorce court might even grant you exclusive use of the home while the case is pending, regardless of who actually owns it. Finally, C.R.S. 14-10-107 would also prevent your spouse from trying to kick you out, as this statutory injunction effective with the filing of a divorce case prohibits one party from disturbing the peace of the other.

4. My wife makes $150,000 per year and is threatening to quit her job. FILE

Over my years as a Denver child support attorney, I have seen instances in which one spouse or the other thinks he or she can just quit working to avoid the consequence of child support. This line of thinking is ridiculous. You don't just get to quit your job. When laid off or fired, a party might get a pass from a court when it comes time to asses child support or alimony. This doesn't work when you quit. Answering the posed question, if your breadwinner spouse is threatening to quit her job, or his job, get the case filed. If he or she quits after that, it will be fairly easy to show the court he or she quit the job as a reaction to the divorce filing. Thus, the court should hold him or her to the higher income potential for purposes of determining income for child support and alimony purposes. Conversely, if he or she threatens to quit that dream job and you wait 6 months or a year before filing your divorce, he or she could argue that you have allowed the new status quo, whether that is unemployment or a lesser paying job in a different field. A lawyer doesn't just get to quit being a lawyer to be a rodeo clown (no offense to rodeo clowns). Get your case filed and preserve the status quo!

With many questions to still be answered, I promise my readers there will be no more month off from writing for this divorce lawyer in Denver. In the meantime, take a look at Colorado statute. Read through the Uniform Dissolution of Marriage Act, C.R.S. 14-10-101 et. Seq. to learn more about divorce. See if you can figure out why the remaining questions were answered as they were before I give you my input.