By: Jessica A. Bryant
Parties to Colorado divorce actions often seek to resolve their case by entering into a Separation Agreement as opposed to going to a hearing and letting the court decide various issues such as maintenance (alimony), division of property/debts, child support, custody and/or parenting time. Many times, parties do not consult attorneys and simply use the judicial branch website Separation Agreement form and check the boxes dividing property and debt. Unfortunately, this can often lead to future unanswered questions and unenforceable orders and parties can end up spending more time and money trying to resolve these questions and issues, than if they had just consulted with an attorney in the first place to ensure that the Agreement contained various precautionary measures. Some tips to keep in mind when entering in an agreement regarding your Colorado divorce case are the following:
- Deadlines are Important: It is one thing to state that one party will be responsible for taking a particular course of action, such as paying off a debt, changing title to a particular property item, returning a particular property item, etc. However, if there is no date by which such action must be done, it becomes very difficult to enforce the agreement. The way a Separation Agreement is enforced is by filing a contempt action, asking the court to order certain remedies if a party is found to be violating a court order. If there is no deadline for compliance, though, it cannot be argued that the party violated a court order by failure to act within the ordered time frame. If a significant amount of time passes, it is possible the court may view it as a failure to comply but, to avoid any question or uncertainty about how long to wait to seek enforcement, it is best if every provision requiring action by a party have a specific deadline.
- Avoid Agreements to Agree in the Future: Sometimes Colorado divorce agreements entered into by the parties contain provisions requiring the parties to agree on the issue at a later date. For example, some parenting time schedules provide that the parties will equally divide parenting time and will work together to make sure that happens. Language to agree in the future, though, provides little protection of one party stops cooperating. Without having set parenting time days/times, law enforcement officers will be hesitant to assist in enforcing the schedule and it may be difficult for the court to find a parenting time violation. Therefore, it is always advised to have specifics in place as a default. Parties can agree to minor deviations but having a default will allow for certainty in the event of future disagreements.
- Changing Title Does Not Change the Debt: It is very important to remember that changing the names on the title to a certain property item does not change the names on the debt. For example, if a quitclaim deed is filed removing a party’s name from the title to the former marital residence, that does not take that party’s name off the mortgage. It is important to make sure your name is removed from the loan of any property item you are not retaining. If the other party stops making payments, the debt holder can collect from any person named on the debt and if your name is no longer on the property title, that may affect your options in terms of recovery. Therefore, make sure any separation agreement has specific provisions as to how names will be removed from debts.
- Disclose all Assets and Debts: Prior to entering into the Separation Agreement, it is important to make sure your Sworn Financial Statement and financial disclosures included all assets and debts (both marital and those you are claiming to be separate). If a significant item has not been disclosed, the court can go back for up to 5 years to change the property/debt division. This includes items of separate property- the value of separate property can impact the division of marital property so it is important to ensure you have disclosed all property items, even those you believe to be separate.
Keeping these tips in mind may help avoid future issues with the enforcement of Separation Agreements; however, it is always advised that you retain the assistance of an attorney when entering into an legal agreements to ensure you are fully protected prior to signing the document. The check-the-box forms provided on the state website often times just don’t provide the same detail an attorney would suggest. Over the years, I have seen way too many instances in which people try to come to agreements without attorneys, only to have problems months or years down the road. In the end, they end up coming to us to rectify problems that could have been prevented with just a little more detail and legal insight.