Untitled Document

Divorce (Dissolution of Marriage) and
Custody in Colorado

Definitions of Terms Used

Colorado laws use different words and terms than what we are usually familiar with.

Here is a list of terms the courts are currently using, and the words we will use in this document as substitutes to help with understanding.

Court Terms	Term in Document
Dissolution of Marriage - divorce	Divorce
Petitioner – wife or husband who files for dissolution of marriage	Wife or husband who files for divorce
Respondent – Petitioner’s wife or husband	Wife or husband who is being divorced
Allocation of Parent Responsibilities – Refers to parenting time and decision-making responsibilities for the children of the marriage	Custody, or assigning responsibility
Parenting Time – time each parent spends with the children, as determined by the court to be in the best interests of the children.	Time parents spend with children
Maintenance – the same as alimony (financial support) for wife or husband, separate from child support)	Alimony
Filing Pro Se – representing yourself in court.	Representing yourself in court
Grounds for Dissolution of Marriage – the marriage is irretrievably broken (it cannot be repaired)	Broken marriage

1. Are there any timelines I should be familiar with when thinking about divorce and custody?

Yes, and here they are:
• 90 days - the amount of time one wife or husband must be a resident of Colorado before a divorce action can be filed in this state.
• 6 months - the amount of time children must have lived in this state before Colorado has the right to determine custody.
• 90 days - the minimum amount of time which must pass, after a divorce action is filed and the wife or husband is served, before final orders can be entered.

2. What are the issues in a divorce action?

a. Is the marriage irretrievably broken?

If the person who is being divorced does not agree that the marriage is irretrievably broken, he/she may state that in his/her Response, and the court will make a determination as to whether or not grounds for a divorce exist.

The court can delay the final hearing for a time, and suggest that the parties get counseling. If the parties still disagree on this issue at the continued hearing, the court will make a ruling (decision). In general, if at least one party feels that the marriage is over, the court will agree.

b. What about the children?

As of February 1, 1999, courts will no longer be entering custody orders. Instead, courts will be "allocating parental responsibilities".

This is how it works:

i. Assigning parenting time
There are several factors which courts must consider when deciding parenting time. The main concern in any decision affecting children is to decide what is in “the best interests of the children”. There is no age at which the child’s wishes are automatically considered by the court. The court may consider the wishes of the parents and also the child, but does not have to follow the wishes of either if the court does not feel they are in the best interest of the child.

Courts will look at the following:
• The child’s relationships with others in his/her household
• The child’s adjustment at home, at school, and in the community
• The party’s physical and mental health (although disabilities in themselves cannot be held against either parent)
• The ability of each parent to encourage a relationship between the child and the other parent
• Past history of parental involvement
• Geographic distances between the parties
• Any convictions for child abuse or abuse of wife or husband, and
• The ability of each parent to put the child’s needs first, ahead of his or her own needs.

ii. Assigning decision-making responsibility.
Who makes the decisions about the child's school, religious upbringing, health care, recreational activities, etc.? Decision-making can be assigned to one parent, or to both parents jointly, or to each parent for different issues. The court will look at several things, including the following:

• Whether the parents can cooperate and make decisions together
• Whether the parents have a history of working things out together
• Whether a parent's decision-making role will help that parent have continuing contact with the child, and
• Whether either parent has any convictions for child abuse or abuse of their wife or husband.

Neither parent is automatically presumed to be a better decision-maker. A parent's absence from the home and from the child due to fear of abuse of wife or husband cannot be held against him or her.

Parenting Plans
Under Colorado law, parents are encouraged to work out a plan for assigning parental responsibilities (discussed above). If the parents cannot work out an agreement, or if the court doesn’t approve the parenting plan which one or both parents submit to the court, then the court can determine a parenting plan. The primary consideration is “the best interests of the child”.

Parents can be ordered into mediation in an attempt to reach agreement on a parenting plan, and parents can request the appointment of an attorney as Guardian ad Litem to represent the child’s interests, or of a Special Advocate, who is not an attorney, to advise the court about decisions affecting the child. Parents can also request that a custody evaluation be done. Each of these options involves cost to the parents. Parenting Plan forms are available on the Colorado State Court website (click here, then scroll down to "Parenting Plan").

c. Child Support.
Whenever there are children of the marriage, both parents will be required to file financial affidavits (statements of finances) with the court. The court will use these to determine the amount of child support to be paid.

The formula for child support is based upon both parents' adjusted gross incomes, and is in the Colorado statutes (laws). Each parent's share of child support will be determined based upon the physical care arrangements for the child.

d. Maintenance (alimony).
Courts will award temporary maintenance (click here for an explanation of temporary maintenance), while the divorce action is pending in court, based on a formula set out in Colorado law.

To request a maintenance order that will be in effect after the divorce is granted, a party must meet a different standard. The court will consider several factors, including the following:

• A party’s ability to support him/herself
• Whether or not a party is caring for a child whose needs require the party to remain at home, and
• The financial resources of the party seeking maintenance.

Also, the court will consider whether a maintenance order should be permanent or for a set period of time, how long the parties were married, the standard of living during the marriage, the age, physical and emotional condition of the party seeking maintenance, and the ability of the other party to pay maintenance and still support him/herself.

If maintenance is not requested at the time of the divorce, it cannot be requested after the decree is entered. Parties should be certain they wouldn’t need maintenance before agreeing to waive their rights to request it forever.

e. Property.
Marital property is divided between the parties by the court, which will consider the following:
• Each party’s contributions to obtaining the property (including the contributions of a wife or husband who acts as homemaker during the marriage)
• The value of each party's share
• The economic circumstances of each party at the time of the divorce

"Marital property" means all property acquired by either party during the time of the marriage, except gifts, inheritances, or property acquired in exchange for a party's separate property owned before the marriage.

Property acquired by either party before a marriage will be considered marital property to the extent that the value of the property increased during the marriage (the increase in value is marital property).

Remember that marital property can include:
• Pensions
• Life insurance policies
• Tools
• Hobby collections
• Businesses
• Houses
• Cars
• Furniture

In other words, it doesn't matter who has the property, who bought the property, whose name the property is in, or whose name is on the loan—if it was bought during the marriage, it is probably marital property. Parties should consult an attorney for an opinion on what is and is not marital property and how the court will determine a fair division of property. Colorado is not a community property state.

f. Debts.
Division of debts is considered at the time of property division, and is also intended to provide a fair division between the parties based on assets retained and each party's ability to pay. However, if the parties have debts, creditors may still have a legal right to sue either party, regardless of which party takes responsibility for the debt in the divorce action.

g. Return of prior name to wife.
The wife can ask to resume use of her maiden or prior married name, and the court will usually agree, unless it can be shown that she wants to change her name for fraudulent purposes (for instance, to try to avoid creditors). A husband can object to the name change only if he can show that it is being done in an attempt to defraud someone. A husband cannot force his wife to change her name.

3. What are the procedures in a divorce action?

a. The person filing for the divorce files his/her Petition, along with separate papers concerning the children, and pays the filing fee or requests court permission to waive the filing fee (special forms are required to do this).

b. Unless the parties have filed as Co-Petitioners, the person receiving the papers must be served (handed the papers), by either:

i. Personal service - by a sheriff or private process server,
ii. Waiver of Service - the Respondent signs a paper agreeing to accept the divorce papers without having a sheriff or private process server perform service of process, or
iii. Service by Publication - the wife or husband has disappeared and his/her location cannot be found. The person filing for divorce must make every effort to find his/her wife or husband. (Service by Publication limits the orders a court can make.)

c. A ninety-day (minimum) waiting period follows the time the party who is being divorced is served, during which the parties exchange disclosure documents, and hopefully work out a Separation Agreement and Parenting Plan.

d. In some cases, hearings to establish temporary orders on use of property, debt payments, division of parental responsibilities, or other issues, may be held.

e. As soon as possible after the expiration of the 90-day waiting period, a final orders hearing will be held. This hearing can be waived in some circumstances. (See #6 below.)

4. A “Temporary Injunction” is in effect as soon as the Petition is filed and the wife or husband is served (receives the paperwork). Neither party is allowed to:

a. Get rid of marital property
b. Harass or molest each other
c. Remove the children of the marriage from the state
d. Cancel or modify insurance policies (including health, homeowner's, renter's, car, or life insurance policies)

5. Attorney Fees
In cases where one party has more financial resources than the other, the court can order the wealthier party to pay the other party's attorney fees. A client should discuss this possibility with his/her attorney.

6. Affidavit for Decree without Appearance of Parties
If there are no children of the marriage and there is no marital property to be divided, or if the parties have come to agreement on all the issues and both parties are represented by attorneys, the court may agree to issue final orders without a hearing. A special form is used to request this; it is available on the court website.

7. Court website - click here.

Reviewed 4/99
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