THE RIGHT TIME TO FILE YOUR COLORADO DIVORCE: ANSWERS (ROUND 4)

November 15, 2012

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After practicing as a divorce attorney in Denver for over a decade, I have come to determine that there is no one "right time" to file for divorce. The timing for getting your divorce case started can depend on a wide array of factors. These factors can be financial, logistical, child related, or otherwise. Thought there is no one right time, there are certainly pivotal factors or events that should be considered when determing the time is right to end your marriage. Continuing with our April 2012 posting regarding the topic of filing your divorce and when, set forth below are more of the promised answers on the subject to consider. No case or set of facts is exactly the same, as each family is different. At the same time, there are some instances in which that right moment comes along.

12. I just cashed out my $50,000 stock account. WAIT

I answered this question with "wait" for various reasons related to disposition of the funds and the fact that they may be largely unusable once a Colorado divorce case is filed and while it is pending. Specifically, C.R.S. 14-10-107 sets forth an injunction which prohibits essentially the disposing or spending of assets such as this while the case is pending, but for the necessities of life. The stock account was definitely cashed out for a reason. If the intent in this instance was to use the funds on a vacation, for the purchase of a vehicle, to pay for your child's college, or for some other personal reason, holding off on the filing of the divorce will allow the person to make those expenditures without issue. Once the case is filed, one can presume it is likely that the court will divide the $50,000 equally as a final resolution, which could be months or more down the road, depending on which county the case is in. If significant purchases are made prior to the divorce being filed, the property purchased would still be subject to division. Nonetheless the account holder has at least had a chance to spend his or her stock proceeds as he or she sees fit. Furthermore, let's say those proceeds are used on a vacation or for your child's tuition. You can't really go back and divide those funds already expended later. Certainly, any remaining funds would likely be subject to division, but the account holder, by waiting a while to file for divorce, will at least have had options in terms of deciding how to spend those proceeds prior to filing the divorce case.

13. We have been separated for 6 months and my husband says he wants to move back home. FILE

In this situation, the parties have been physically separated for quite some time. At the same time, the presumption is that both parties own the home. As such, one would think that legally the husband can just move back home as he sees fit. In reality, he can, unless action is taken. As mentioned above, C.R.S. 14-10-107 sets forth an injunction which takes effect when a divorce case is filed, proscribing or prohibiting certain actions on the part of either party. One of the major tenets of the injunction relates to disturbing the peace of the other party. Most Denver area divorce courts ascribe to the theory that once the other party is served, he or she cannot just come and go as he or she pleases from the marital home if he or she has already moved out. In essence, most courts will view such to be a violation of the C.R.S. 14-10-107 injunction related to disturbing the peace of the other party. To have the legal power to keep your spouse from moving back in, coming and going as he or she pleases, etc., you must file for divorce. People separate for a reason and no one needs the acrimony and fighting that can affect their daily lives, or spill over onto the children. In addition to remedies that can be sought in your divorce case, such as contempt of court, some law enforcement entities will actually view someone coming into the marital home, uninvited, after separation and filing of a divorce case, as criminal trespass. The hope will always be that things never go that far. Sometimes they do. In essence, if you want peace in your home and the security of knowing your soon to be ex-spouse cannot just come and go, get your case filed.

14. My wife just moved out of town and left the kids with me. FILE

Two of the major aspects of any divorce case with children are custody and child support. Both are going to be based largely in reality in terms of the facts and circumstances a family brings to the proverbial legal table. At the outset of a divorce case, for temporary orders purposes, a court will look at the status quo at that time for purposes of determing temporary issues, such as custody. When one party moves away, they have, by their actions, set the status quo. When presented with a situation in which one party has factually and logistically handed over custody to the other, it makes sense to strike while the proverbial iron is hot and to get your divorce case going. When left with the children, a person is essentially in the driver's seat in terms of being able to establish that he or she should have primary residential custody. This does not mean the other party cannot decide to move back to town, or that residential custody will automatically and ultimately be decided in your favor. At the same time, it certainly gives you an advantage should the issue devolve into a full blown battle. Furthermore, if the other party does return, he or she will be in a tough spot to try to argue that you should have anything less than 50/50 physical custody, as he or she found you to be a fit enough parent to leave the kids with you in the first place.

Aside from the custody aspects of this scenario, one must also consider the child support ramifications. Pursuant to statute, the obligation to pay child support starts running from when the other party is served. In this instance, factoring in that visitation will not likely affect the amount of child support in light of logisitics and distance, it just makes sense to get the case filed. The court can, and likely will, assess child support going back to the date of service of the initial divorce papers. The longer you wait to file, the less money you may receive for your children. I am not suggesting that you run out and file the case the next day. In fact, I would recommend waiting a few weeks to get the status quo of parties living in two different places established. Again, when the facts are on your side and when financial obligations start accruing based on those facts, there is no time like the present to take action when the circumstances are clearly in your favor.

As indicated above, each family is different. Each court is different, too. Your divorce in Aurora, Colorado may not be the same as your divorce in Brighton. Conversely, there are factual scenarios that may give rise to fairly certain legal outcomes in any case, regardless of what part of the metropolitan area you are in. The experienced family law attorneys at Plog & Stein, P.C. can help you determine when the time is right for you and your family.