Strategically helping Colorado clients through divorce & custody cases

Articles Posted in Divorce

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hand-fingers-1-1187038-300x140By Michelle L. Searcy

Colorado law requires the court to “divide the marital property, without regard to marital misconduct, in such proportions as the court deems just, after considering all relevant factors…” §14-10-113(1), C.R.S.  People commonly refer to this provision as “no fault.”  While it seems a simple concept, parties are often unaware of their own attempts to inject fault in a property division.  Most folks understand that the court is not concerned with who cheated or who decided to end the relationship, but there are other issues that may come up in a divorce where the parties may want to argue that the property division should favor them due to the acts of the other party.

One of the relevant statutory facts concerns “the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker.” §14-10-113(1)(a), C.R.S. The first aspect of this factor that one must consider is the contribution language.  I often hear how one party’s retirement should be theirs alone because they put in the work that allowed the retirement to grow.  However, by statutory definition, the retirement is included as marital property because it is acquired during the marriage. §14-10-113(2), C.R.S.   Continue reading

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budget-cuts-1172571By Michelle L. Searcy

Comedians have written countless jokes about losing half of everything in a divorce.  While it is, by far, the most common outcome that the marital estate will be divided equally or nearly equally, parties to a divorce have considerable control over how much will be left to divide.  Sadly, it is not uncommon for people with fairly significant estates to walk away from a divorce with a fraction of what they had to start, and not because their former spouse received the majority of the property.

The first step to controlling costs in a divorce concerns budgeting.  You will need to decide when to move into separate homes.  In many cases, this is a given, but if you are able to peacefully co-exist on a temporary basis, then it is possible to reduce expenses during your divorce by continuing to share them.  Of course, you still need to plan and prepare for setting up separate households eventually.   Actually separating once the big financial picture has been resolved can save a tidy sum of money.

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people-1458971-300x226By: Johanna E. Blumenthal

This part one of a two-part series on Collaborative Divorce in Colorado addresses what collaborative divorce is, who is involved, and some reasons that couples who are divorcing choose this process.  

Collaborative divorce is an alternative disputes resolutions (ADR) process which couples can choose to engage in when they have decided to end their marriage, but would like to avoid the negative effects often associated with contested litigation. The goal of a collaborative divorce process is to reach a full out-of-court divorce settlement through a series of meetings between the couple and their Collaborative Divorce Professional Team (see below). It is a transparent process in which everyone involved agrees to operate in a manner that is honest and forthcoming. Please note, this does not mean that the process will be 100% pleasant, after all a marriage is still ending and no process no matter how smooth can remove the emotional, financial, and formal stresses associated with a divorce.  Some states have even adopted statutes regarding collaborative divorce.   Colorado is not yet one of them.

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By Michelle L. Searcy

Colorado’s Uniform Dissolution of Marriage Act sets forth the laws applicable to divorces in Colorado.  While most divorce cases involve parties who live in the same state, often times one of the parties has either moved to or moved from the state prior to a party filing a Petition for Dissolution of Marriage.  This article addresses the jurisdictional limits and requisites in such cases.

Jurisdiction involves fairly complex legal questions that may be summarized by asking whether the court has the authority to enter orders concerning the subject in controversy and whether the court has authority over the person.  

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thread-1476487-300x194By:  Jessica A. Saldin

In a prior post I discussed the effect a long-term physical separation may have on your Colorado divorce case.  A physical separation is not a legal process and simply refers to a period of time when you and your spouse lived apart.  In contrast, though, there is a legal process- known as a legal separation- that can be pursued instead of a divorce.  A common question is how a legal separation differs from a divorce case.  

Procedurally, a divorce case and a legal separation case are very similar.  Both start with the filing of a petition and obtaining personal service over the other party.  Both cases start with an initial status conference and an order for mediation.  Ultimately, if the parties are not able to resolve the case by agreement, both a divorce and legal separation requiring a permanent orders hearing to let the judge make the ultimate decision regarding the various relevant issues.  Continue reading

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By: Johanna E. Blumenthal

Many people are reluctant, nervous, or even fearful of going to court. This is understandable because most people have never been to court and find the formal setting uncomfortable. Additionally going to court can be inconvenient to people who live far away from the courthouse (sometimes even out of state) or for people who have to take time off of work during the court’s business hours. Given the inconvenience of going to court, people often ask if they can just “file the papers.” In essence, what they want to know is whether it is possible to get divorced without going to court. 

In Colorado, you CAN get a divorce decree without ever stepping foot inside the courthouse.   If this is your goal, the most reliable way to ensure that you avoid ever going to court (and, in some cases, the only way) is for you and your spouse to consult with and work with attorneys.  Even if all necessary documents are filed and full agreement has been reached, the parties will still need to attend a quick, final hearing unless they have submitted what is a called an “affidavit for decree without appearance of parties.”   This document basically lets the court know that everything has been filed and asks the court to enter the divorce decree without anyone having to physically appear.  This Affidavit can only be used as a means to avoid court altogether if there are no minor children of the marriage or, if there are kids, both parties have attorneys representing them in the divorce.       Continue reading

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By: Michelle L. Searcy

In Part 1 of this article, I started venturing into comparing Colorado divorce laws with those of other states, as listed an online divorce article I came across.  I continue my interstate legal the journey in this Part 2, looking at other states and their laws compared to the ones I deal with on a daily basis in my role as a Colorado family law attorney.

While it is easy to marry in Nevada, Nevada divorces present more complexity.  However, annulments may be granted to parties “incapable of consenting to the marriage due to a lack of understanding.”  Colorado allows annulments on a very limited basis.  A Colorado court may declare a marriage invalid on one of the following bases: (1) lack of capacity, including due to the influence of drugs or alcohol; (2) lack of physical capacity to consummate the marriage where the other party did not know of the lack of capacity; (3) an underage party did not have consent of parents or guardians; (4) one party entered the marriage in reliance upon a fraudulent act or representation going to the essence of the marriage; (5) a party entered into the marriage under duress; 6) one or both parties entered the marriage as a jest; or (7) the marriage is prohibit by law (such as situations where one of the parties is still married to another person).  While incestuous relationships fall into the last category, first cousins can marry in Colorado.   Continue reading

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By Michelle L. Searcy

While browsing the news one morning, I recently came across an article discussing some “surprising” divorce laws throughout the country and wondered how those laws compare to Colorado laws on the same subjects.  This article, which will be posted in two parts, explores those comparisons.

In Arkansas, couples have the option to enter a strict “covenant marriage.”  If that option is chosen, getting a divorce becomes more difficult.  Those in a covenant marriage must attend marriage counseling and separate for a specific time period before a divorce will be granted.  Colorado does not require marriage counseling or any period of separation prior to filing for a divorce.  However, given the cost, stress and impact of divorce on the parties and the children, it may be worthwhile to attend marriage counseling to explore possibilities of reconciliation voluntarily

California law includes a statutory six month waiting period before a divorce will be final.  Colorado has a statutory waiting period too.  However, in Colorado, the court can enter a Decree of Dissolution of Marriage 91 days after service of the petition.  It is not unusual for divorce cases to take six months to one year to be finalized depending on the circumstances. Continue reading

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In my experience, nothing seems to annoy a judge more than being required to allocate who gets the personal property acquired during a marriage – TVs, beds, tables, paintings, etc. Accordingly, most attorneys tell their clients to try figure it out among themselves.  When valuing personal property in a divorce, unlike insurance valuations, courts generally use “garage sale” values to determine what tangible personal property is worth, and almost invariably, it’s not worth much. Keep in mind that courts are vested with discretion to divide marital property in a divorce as they deem to be fair.

Thus, when you are paying your attorney $250 – $350 per hour, arguing over who gets the 2 year old flat-screen or the used king-sized bedroom set, the divorcing couple needs to make a cost-benefit determination of whether a fight over a possession is financially worth it, or whether to just take a deep breath and buy a replacement item. Continue reading

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By: Jessica A. Saldin

In most divorce cases, the parties are either still living together when the case begins or have recently separated.  However, it is also not uncommon for parties to have separated several months, or even years, before the divorce case is filed.  In my experience that can be for a variety of reasons.  In some cases the parties wanted to take time to attempt reconciliation.  In others, the parties simply never got around to filing. Furthermore, in some cases one party left and the other party did not want to file because they did not want the divorce to happen.  In sum, there may be a variety of other reasons why spouses wait lengthy times to file for divorce.  Regardless of the reasons, if the parties do get to the point of filing a divorce case, a common and reasonable question many parties ask is: what, if any, effect could this long period of separation have on the division of marital property and debts?  When reading this article, keep in mind that the court has the power to divide all marital property accrued up to the date of the decree.

The only time that marital property and/or debt acquired during a period of separation will be automatically set aside as one party’s separate property or debt is if it was a period of legal separation.  Legal separation is a formal legal process, similar to a divorce, and whether it may be the best fit for your situation will be discussed in a future blog post.  If you have received a decree of legal separation, property obtained after that point will be considered your separate property.  If you are not legally separated, though, and have only physically separated, the answer to the effect such separation has on the property and debt division is not as clear cut.

It is important to be aware of the fact that property acquired during the marriage, even during long periods of physical separation, is considered marital property.  Same with debt accrued during that time.  Therefore, if you are considering a divorce, it is best to start the process sooner rather than later to get resolution and to avoid property you acquire being considered marital property (to which your spouse could be entitled) and debt your spouse acquires being considered marital (part of which you could get stuck paying). Continue reading