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GAPS IN COLORADO FAMILY LAW STATUTES (Part 3: Divorce)

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Divorce is never easy. The Denver family law attorneys at Plog & Stein see the emotional and financial toll divorce can have on a family. As such, we strive to provide clarity and great outcomes in uncertain situations. Divorce cases in Colorado can entail various issues aside from custody, including alimony, division of property, and division of debt. Though an experienced attorney can help provide clarity in any divorce case, there are gaps in Colorado statutes which leave one scratching his or her head, pondering what the legislature was thinking when it left things out of statute which should be simple, and just make sense?

1. C.R.S. 14-10-113 is the statutory section related to the allocation, or division, of marital assets or property. Statute lays out various rules related to the definition of property and how a court might divide such. The division of property, whether related to real estate, financial accounts, or even pots-and-pans or furniture, is a common issue in divorce cases. Oddly, one issue so intertwined to the division of property is completely absent from the statutory section encompassing Colorado divorce law, that being DEBT. The Uniform Dissolution of Marriage Act, C.R.S. Title 14, Article 10, is completely void of a section, or even explanatory language, related to debt. In practice, a Colorado divorce lawyer will look at a case from a balance sheet standpoint, trying to essentially equalize the allocation of property and debt. Maxims which hold true regarding property, such as premarital property is separate property, also hold true for debt. For example, student loans brought into the marriage or a credit card balance stay with the person bringing those obligations in and they are not part of the marital mix. Why? This is just the way it’s done.

The Colorado legislature could, and should, take the time to codify how marital debts and separate debts are commonly treated in the court, or in a negotiation setting. It is mystifying that one of the cornerstone issues of contention in any divorce case warrants no mention in statute. Furthermore, statute could go further, after even referencing debt, and define what is marital. Debates often arise regarding whether certain debt is marital. For example, credit card debt, regardless of how titled, used for food, clothing, shelter, family endeavors, etc., is generally considered martial. Contention arises when one person has credit card debt for his or her own personal expenditures, such as a trip to Las Vegas or perhaps plastic surgery. Some of the debate could be eliminated by clear statutory language defining what debt creates the negative part of the marital estate and what does not.

2. Commencing January 2014, Colorado statute changed regarding alimony, properly termed ‘maintenance.’ The radical part of the changes related to the legislature setting forth a table indicating how long maintenance should run based on the length of the marriage. At the low end, the table suggests that for a marriage of 36 months, 11 months of alimony should be paid. At the upper end, a marriage of 240 months (20 years) the duration of maintenance should be for one-half the length of the marriage or 10 years. The application of this table is not mandatory, though its utilization seems to be becoming popular with many courts. Such a chart is great for shorter marriage, but statute gives the new statutory changes give no guidance as to what do with marriage of more than 20 years. Thus, though persons in a shorter marriage are now provided a modicum of clarity as to how long alimony should run for, those in a longer marriage are still left in a gray area of having to determine what is a fair length of time for alimony to run. The legislature could have gone a step further and expanded its timetable. It is not uncommon, though sad, to see couples in their 50’s or 60’s getting divorced. Most often they have been married for well over 20 years. Likewise, in light of their ages and limitations on their employability or employment futures, perhaps they are in more need of certainty that younger couples.

Tied onto this analysis is the fact that C.R.S. 14-10-114, the maintenance statute, also makes reference to C.R.S. 14-10-115, the child support statute, and the chart set forth therein related to income. The C.R.S. 14-10-115 chart caps out at $360,000 per year for combined gross income for a family. Thus, for calculation of child support, parties venture somewhat into no-man’s land when trying to determine child support when their combined income is greater than $360,000 per year. The 2014 version of Colorado statute sets forth a formula for determining maintenance, which essentially balances incomes for alimony purpose such that the higher earner has 60% of the gross income and the lower has 40%. However, as with child support, this formula caps out at $360,000 per year. Thus, again, the legislature goes part way, but stops, in that it doesn’t provide the same clarity for the family making large amounts of income as it does for those with less. Clarity is clarity and something sought by rich or poor, young or old. The less gray areas in any divorce case, the less litigation costs or need for court hearings. Part of the legislative intent in enacting the new alimony statute was to prompt settlement. Seemingly, the intent only applied to the middle, but not the outliers on the upper end of marriage length or income.

There are other gaps in Colorado divorce statute, which will be saved for future writings. There are gaps, which on their own, could take up multiple posts. There are also changes that could greatly simplify Colorado divorces, such as changing the property statute to just indicate “equal division” of marital property, as opposed to “equitable division.” Gaps eventually get filled in, and the law adapts. Until then, a person going through a divorce should at least know what the gray areas might be in his or her case. If statute doesn’t help, contacting an experienced Denver divorce attorney can.