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.
The aim in every divorce case is to receive a declaration to all concerned that you and your spouse are no longer legally married. Such declaration is accomplished by obtaining a decree of dissolution of marriage that has been signed by a judge or magistrate.
In general, before a judge or magistrate will sign your decree, thereby divorcing you and your spouse, he or she is required to make factual and legal findings including:
- that the marriage is irretrievably broken;
- that it has been 91 days since the court obtained jurisdiction over both parties;
- that marital property has been divided equitably;
- that any provision with respect to maintenance (alimony) for either spouse is fair and not unconscionable; and
- if there are children of the marriage, that parental responsibilities have been allocated in a manner that is in the best interest of the children.
A court does not necessarily need to hold a formal hearing in order to make these determinations, especially if both parties have reached a full settlement agreement and there is no genuine issue of material fact. However, the court does need financial and practical information from the parties in order to make the findings. This information can be provided to the court in writing by filing various documents.
Although the court can provide forms for divorcing parties to fill out and use for this purpose, knowing what to file, how to fill it out, and if you have everything can be confusing. Furthermore, doing it all without an attorney typically requires going to the courthouse for a variety of reasons, including: physically handing the documents to the clerk for filing; appearing at the initial status conference, and appearing at a non-contested, final hearing.
Divorce attorneys know exactly what needs to be filed, what information needs to be in a particular filing, and when documents ought to be filed to accomplish certain goals. They can file documents on your behalf so that you do not have to go to the courthouse to hand them to the clerk. They can also advise you regarding certain documents that could be completed and filed with the court in order to eliminate the need for you to appear at an initial status conference or a non-contested hearing.
Furthermore, attorneys can draft important documents, such as separation agreements and parenting plans, in a manner that the court is more likely to approve. If the court has a question about what was filed, attorneys can often address such questions quickly and without need for the parties to appear. Conversely, vague, incomplete, or unclear agreements can lead to the court requiring the parties to appear to explain, clarify, or give more detail to their agreements
Assuming all necessary documents are on file with the court and the parties have submitted an affidavit for decree without appearance, a couple can get divorced from start to finish without setting foot in a courthouse. All that being said, every once in a while we do see a new or random judge make everyone show up for the final, uncontested divorce hearing, despite all requirements being met. These instances are few and far between.