THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 3)

September 29, 2012

The question of whether to file for divorce is not one easily answered. As a divorce attorney in Denver, I often meet with people pondering divorce, yet not quite sure whether they really want to go through with it. Deciding whether to completely alter your life, and perhaps that of your children, is a decision that should be weighed seriously. I, as well as all of the attorneys at Plog & Stein, am never one to push a person on the verge of making that decision one way or the other. It is not an attorney's place to make that life altering decision. It is an attorney's place to advise as to ramifications, outcomes, the legal process, etc. related to that divorce. A key factor in determining whether it's time to file for divorce, beyond the emotional notions of whether a marriage is truly over, relates to timing and the facts and circumstances currently at hand.

Below are more questions and answers stemming from my April 2012 posting regarding the right time to file for divorce in Colorado. Each case is different, yet some circumstances may dictate that it's time to file in most. Others may lead to the conclusion that it might make sense to wait. The answers set forth below are general in nature, but may assist those sitting on the proverbial fence.

8. Our oldest child is 18 and turns 19 in 10 months. WAIT

I answered this question with "wait" from the perspective of a married person, in a still in tact relationship, who would likely end up paying child support. As the child in this fact pattern is no longer really a child for Colorado custody purposes, but rather an 18 year old adult, the only relevant issue is child support. Presuming the person asking is the one who will likely be paying, it would be more prudent to hold off on filing until the child turns 19, which is the age that child support generally stops. If possible to hold off until age 19, there will be one less issue to litigate and one less potential strain on cash flow. Depending upon which county the case is filed in, the child could turn 19 by the time the case is completed. It makes no sense to spend money litigating an issue that will soon go away as the child emancipates.

I could also answer this question from the perspective of the payee, in that the child's financial needs may be better met with the family in tact. As Colorado child support is calculated based on a statutory formula and the legislature's idea of what is needed monetarily to raise a child, one might find himself or herself receiving less in child support than what he or she is accustomed to spending on the child. Of course, if there are circumstances, such as domestic abuse or other extreme issues, which make immediate filing a necessity, then file right away. Absent those, it might make sense to hold off until the last child is truly a child no more.

9. My husband just got pulled over for DUI with the kids in the car. FILE

Driving drunk with children in the car is not only a safety issue, it also becomes a legal issue with ramifications for both spouses. If contemplating divorce and your spouse is pulled over for DUI, the time is right to file. Many Denver area custody courts take DUI seriously, whether kids are in the car or not. A DUI alone can potentially tip the scales in a Denver visitation or custody battle. Alcohol is an intoxicating substance, just as with other drugs. The general presumption is that someone with a recent DUI has a substance abuse problem which may make them a potential danger to the children. The concern a court will have regarding the safety of the driver with the children grows exponentially when there are children in the car. At risk of sounding mercenary, from an attorney's perspective, this is the type of situation that can be a game changer in a custody battle. From an attorney's perspective, when facts arise which can change the outcome of a case, it is best to seize the day and act upon them. Setting aside the legal aspects of this scenario, the reality is that a parent who drives drunk with the children is a danger. As such, they should be monitored. Additionally, driving drunk with the children can often lead to a criminal charge of child abuse, and potential involvement with your county's social services team. In such instances, both parents may be looked at. Filing immediately may take any scrutiny off of you, leaving it solely placed on the deserving party, your soon to be ex.

10. I just discovered my wife cashed out her $100,000 401K. FILE

If accrued during the marriage, the $100,000 401K is marital property in Colorado, regardless of whose name it's titled in. By filing for divorce and getting the wife in this scenario served, she will be under an injunction, pursuant to C.R.S. 14-10-107, precluding her from hiding or spending said funds, but for the necessities of life. In any divorce case, a court can look back prior to the filing to see whether one party or the other has needlessly wasted or dissapated marital assets. However, the longer one goes before raising an issue, the grayer things get in terms of a court definitively having an issue with the spending of funds. If one waits too long, a court might even chalk up the spending of the $100,000 to being a "marital decision." Filing right away is the best way to protect your share of the 401K funds and to ensure that your spouse will be accountable for such. Filing does not concretely protect the funds, but it creates accountability and a prohibition on the other party just spending them unilaterally. You cannot gain the protection of the courts or assert your rights, such as might relate to an asset, without getting a case filed.