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.
New York requires a sworn statement of net worth that details expenses, assets, debts and income. Colorado requires a Sworn Financial Statement and mandatory disclosures under a special disclosure duty that requires full, honest disclosure. In fact, if one party finds out that the other party hid assets during the divorce, Colorado procedure allows a case to be reopened within five years of the entry of a decree when a violation of the disclosure rules results in a marital asset that was not disclosed.
Oklahoma law requires parties to wait at least six months before marrying someone else from Oklahoma, unless the parties are remarrying each other. If a spouse died, this rule does not apply. Also, if the person you are marrying is from another state, you can marry, but you cannot cohabitate in Oklahoma with your new spouse. Colorado has no such law. However, at times, there is a delay between the final hearing and the issuance of a decree of dissolution of marriage, so be sure you have a signed decree before jumping back into marriage with someone else. Of all the laws I reviewed while reading this article, Oklahoma’s were perhaps the most bizarre.
In Rhode Island, one of the parties must have lived there for at least one year prior to filing for a divorce, or have been separated for three years without reconciliation. Colorado, in contrast, only requires that one or both parties reside in Colorado for 91 days prior to filing for divorce. These types of requirements help avoid “forum shopping” where a party looks to file in a state where the laws will be more favorable to his or her position.
The writer of the underlying article I read may have surveyed various states’ information websites, as it attributes the South Dakota state bar as the source for stating it may be possible to serve a summons for divorce in a newspaper. Colorado requires personal service of a divorce summons. However, if the person cannot be found or served after documented attempts, a party can ask the court for substituted service, which may include publication in a newspaper local to the other party’s last known residence. However, such relief is unusual and the efforts to attain personal service must be diligent. Personal service, not published, is required to gain lasting financial orders against the other party.
Texas will not finalize a divorce while a spouse is pregnant. The purpose of this policy is assuring that the child will be included in the final orders and is born with “legitimacy.” Texas’ approach seems practical – do not leave loose ends. While Colorado does not have this specific law, the court is required to inquire as to whether the wife is pregnant at the time of the dissolution, presumably for the same purpose. The best approach is likely to determine how the child born after the divorce will be raised. Otherwise, another case for allocation of parental responsibilities (child custody) may follow the divorce case.
Utah only requires a 30 day waiting period, or less, between case filing and divorce decree. This could be a huge benefit to those who do not file until they know how they will handle everything. Practically speaking, 30 days is a very short period of time in which to determine how to divide property and debts, as well as determine a parenting plan. The minimum waiting period between the start of the case and the entry of decree in Colorado is 91 days and is strictly adhered to by our courts.
Wisconsin prohibits parties from remarrying anywhere in the world for six months. As discussed previously, Colorado does not prohibit remarriage after a divorce. However, the policy of waiting to make sure you are making the right decision seems well rooted in common sense. It’s hard to imagine how Wisconsin could really enforce such a law?
Wyoming requires service through a local sheriff, or by waiver. Both procedures are available in Colorado, but a summons may be served by adult who is not a party to the case. Often, this is a private process server. If, however, a friend is willing to serve the other party, it is a helpful way to serve someone avoiding service and can also cut down on cost.
Again, if the time periods and specifics of Colorado law seem burdensome, remember that it could be worse. Through my analysis, I’ve determined that while some states have pretty quirky provisions, such as Oklahoma, the laws of each state contain many conceptually similar provisions. Given the diverse array of states and reasons within the U.S., it makes sense that laws would differ, too. For this author, Colorado divorce laws are the ones that matter most.