CHAPTER 10: SELECTED CIVIL CLAIMS - Table of Contents
10.1 - Alternate Dispute Resolution • 10.2 - Bankruptcy • 10.3 - Dissolution of Marriage • 10.4 - Intellectual Property • 10.5 - Personal Injury • 10.6 - Professional Malpractice • 10.7 - Real Estate • 10.8 - Taxation
10.3 DISSOLUTION OF MARRIAGE
The laws relating to dissolution of marriage (“divorce”) in Colorado are found in Title 14 of the Colorado Revised Statutes. Specifically, Article 10 of Title 14 contains the Uniform Dissolution of Marriage Act and other articles in Title 14 contain other laws pertaining to the dissolution of marriages and the enforcement of orders relating to dissolutions. Many of the forms that are required to file for and obtain a divorce are available from the Judicial Department of the State of Colorado. These forms are available on the web at http://www.courts.state.co.us/chs/court/forms/selfhelpcenter.htm. In addition, the Twentieth Judicial District (Boulder County) has a Family Court Facilitator who can help people who cannot afford a lawyer file the necessary paperwork. The Family Court Facilitator cannot provide legal advice, but can assist the parties by explaining the legal process and providing relevant forms and instructions on how to complete them. The Family Court Facilitator can also assist Spanish speaking parties.
Colorado is a no-fault divorce state. People who wish to get divorced in Colorado do not need to prove any wrongdoing on the part of the other party to the marriage. All that is required in order to get a divorce is an irretrievable breakdown of the marriage. Additionally, Colorado is a separate property state. This means that the court presiding over a divorce will consider the separate property of each party and their joint marital property when considering how to divide the assets of the parties.
A divorce case begins with the filing of a Petition for Dissolution in the District Court. The party filing the Petition is called the Petitioner. The Petition can be co-signed by the other party, in which case the other party is called the Co-Petitioner, and is an indication that both parties want to dissolve the marriage. If the other party does not sign the Petition, then the petition must be served upon the other party by the sheriff or a private process server, with a summons ordering the other party to respond. In this case, the other party is called the Respondent. A Respondent has twenty (20) days to file a response to the Petition. If the Respondent does not answer the Petition, the Respondent is in default. The court will not enter a Final Decree of Dissolution granting a divorce until at least ninety (90) days have passed since 1) the date the case was filed if the Petition was filed jointly, or 2) the date the Respondent was served with the Petition if the Petition was not filed jointly
During the 40 days after the filing of the Petition, both parties are required by Rule 16.2 of the Colorado Rules of Civil Procedure to make certain financial disclosures to each other and to the court. These disclosures are accomplished primarily with two documents: a Sworn Financial Statement and a Certificate of Compliance with Mandatory Financial Disclosures. (These documents are available at the web site described above.) In addition to these two documents, the parties are required to exchange copies of pay stubs for the last three months, federal and state tax returns for the last three years, business tax returns, an affidavit as to income if self-employed and most recent statements for retirement or pension plans. Additional information and/or documents relating to the financial situation of the parties can be obtained through an expanded discovery process that involves a series of questions and requests for production of documents relevant to the financial issues.
The parties to a divorce may engage in a variety of processes to resolve the issues that need to be settled. Some parties choose to work with a mediator or other form of alternative dispute resolution (see Chapter 10.1) in an attempt to reach a settlement without Court intervention. In other cases, the parties rely on their attorneys to work together to resolve a case. Many parties are able to reach a complete resolution of the issues without an attorney or with minimum assistance from an attorney. Mediation is required in the Twentieth Judicial District (Boulder County) before the Court will hear contested permanent orders.
Often, the most difficult issues to resolve are those relating to children. The parties must agree upon the issues relating to decision-making and parenting time, or have the Court impose its decision upon the parties. The Court will look to the best interests of the child when evaluating the agreement of the parties or when resolving these issues itself. If the Court determines that it needs more information about what is in the best interest of the child, the court may appoint a child and family investigator (formerly known as a “special advocate”)to help inform the court. In addition, questions relating to child support must be answered. Whenever there are children involved in a divorce, the Court will require both parents to attend parenting classes and provide proof to the court of the successful completion of the course.
The amount of child support a parent must pay depends upon the amount of time the child spends with each parent and the respective incomes of the parties. The specific amount is determined by a formula established by the legislature. (A program to make this calculation is available on the web page at http://www.courts.state.co.us/chs/court/forms/domestic/electronicworksheets.htm)
By contrast, maintenance (which used to be referred to as alimony) is not required. Maintenance is usually a temporary measure, designed to give one party to a divorce some financial support for a limited amount of time until that party can take care of his or her own needs without assistance.
A divorce action is completed by the Court's entry of a Final Decree of Dissolution. The Final Decree must address all the issues relating to payment of debts and division of property. The court will look to see if the division of debts and property is equitable; this often, but not always, means a 50 - 50 split of property and debts. If there are children, parenting time and child support issues must be fully resolved in the final decree. The final orders of the Court consist either of a Separation Agreement that sets forth the agreements reached by the parties or, if the parties cannot agree, the permanent orders as determined to be appropriate by the Court. The final decree is final: it terminates the marriage permanently. The decree may be modified, however, with regard to maintenance and issues relating to children, upon a showing of changed circumstances.
If both parties are represented by counsel and have filed a Separation Agreement, the Court may enter a Final Decree without holding a hearing. The same is true even if the parties are not represented by counsel, as long as there are no children involved and the parties have filed a Separation Agreement. However, a court hearing is required whenever children are involved and one or both parties are not represented.
As noted, a court cannot enter final orders dissolving a marriage until at least ninety days have passed from the commencement of the action as described above. A dissolution generally takes about six months from start to finish but depending on the case, may take longer. The length of time it takes depends also of course, on the willingness and ability of the parties to resolve their issues amicably.
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