When should I file for divorce?
Colorado is a no-fault divorce state. You do not need to allege adultery, desertion, or cruelty to file for divorce. The only grounds in Colorado for receiving a divorce decree is “an irretrievable breakdown of the marriage relationship.” Only one party, you or your spouse, needs to assert that the marriage is irretrievably broken.
A dissolution of marriage proceeding, also known as a divorce proceeding, covers many issues, including division of the marital estate (property, debts, assets, etc.), maintenance, allocation of parental responsibilities, and child support.
The decision to file for divorce may be difficult. When you realize that your relationship is running on borrowed time and you are contemplating ending it, you may benefit from filing first.
Here are a few important factors to consider:
Filing first may bring financial advantages
You can choose a team of experts in advance.
You want to choose the right team of experts for your divorce. An attorney with excellent credentials can guide you through all stages of the legal process. For financially complex divorces, you may want to hire a financial analyst. Divorces are high-emotion events, and you may benefit from hiring a good therapist to see to your emotional well-being. It may also be helpful to hire a vocational expert if you plan to re-enter the job market.
You can assemble important documents before the divorce begins.
You should also consider whether you have access to important financial and legal documents. Filing first may give you time to assemble the documents you will need in your divorce, such as bank and brokerage statements, mortgage documents, insurance policies, wills and trusts, retirement account statements, real estate records, credit card statements, and vehicle registrations. It may be time-consuming to locate copies of these documents, especially if your spouse has handled the finances during your marriage. If you file first, you can make sure that you have copies of the documents before the divorce begins.
Filing first may make it harder for your spouse to hide assets.
Unfortunately, many spouses hide assets during divorce proceedings. By filing first, you may help prevent your spouse from hiding assets. Colorado enforces an Automatic Temporary Injunction, which prevents both of the parties to a divorce from doing certain things during the divorce. The purpose of an Automatic Temporary Injunction is to prevent big change to the status quo while the divorce is pending. In general, an Automatic Temporary Injunction prevents the parties from buying or selling marital assets without consent of the other party. It also prevents the parties from harassing each other and precludes them from taking the children out of the state without an agreement or court order The parties also cannot make changes to the insurance policies that cover them or the children.
Filing First May Bring Legal Advantages
You can choose the venue of your divorce.
Courts usually decide divorces in the jurisdiction where they are filed. If you and your spouse have already separated and are living apart, in different counties or states, this may be an important point. You may have an advantage if you file first. There may be legal advantages if you file in one of the venues more easily available to you. State laws may vary on important issues like child custody, division of marital assets, and whether or not an Automatic Temporary Injunction is part of the proceeding. You may have a better outcome if you file in one jurisdiction versus another. It is important to research and consult an attorney in any jurisdiction where you may choose to file. However, keep in mind that your spouse will have to be served in any county in which you choose to file, in order to address all relevant issues. This can be difficult if it’s not where they reside.
Hiring an attorney and filing first may also help to ensure that you do not fall victim to a divorce tactic called “conflicting out” where your spouse meets for consultations with the best divorce attorneys in the area, rendering them unable to represent you because they have an attorney-client relationship with your spouse.
If you are first to file, you may be the first litigant to present your case at trial, but that may come with some downsides.
You may gain an advantage by filing first, but it may also be better to wait for your spouse to file. Filing first may give you a sense of emotional satisfaction, especially if you feel that your spouse has wronged you in the relationship. It could give you a feeling of strength and control. However, you also risk divulging your strategy to the other side, allowing them to adjust their case accordingly.
It’s always best to consult an attorney before making any decisions.
How much will the divorce cost me?
When divorce is a possibility, you may wonder how much money you need to save to pay for it. The cost of a divorce may be difficult to predict, especially since it depends on the individual circumstances of your case. Your divorce is likely to be less expensive if you are separating amicably and/or without children. It will be more expensive if you are dealing with a difficult spouse or if you have minor children together. Although the actual cost may be difficult to predict, it can be helpful to know the general cost of a divorce and what factors may make yours more or less expensive.
According to the Institute for Divorce Financial Analysis, the national average cost for a divorce is $7,500. Remember that the average cost includes a wide variety of divorces and includes those with and without attorneys. Nationally, the average cost of attorney fees per spouse is $11,300. That is, the national average combined cost of attorney fees for both parties is $22,600.
Many factors will determine the actual cost of your divorce. Surprising complexities often emerge which increase costs. However, an uncomplicated divorce may be less expensive, so it really just depends.
Here are a few factors that may increase the cost of your divorce:
- Whether you and your spouse are willing to settle on all or some of the issues
- Whether experts will be involved
- If you or your spouse are requesting spousal maintenance
- If child support is an issue
- The amount of assets and debts you and your spouse have
- Whether you have a prenuptial agreement
The existence of these factors may increase the cost of your divorce. For instance, the national average cost of a divorce with child support or spousal maintenance is $15,000.
Whether your divorce is contested or uncontested will affect the cost.
The cost of your divorce will depend on whether it is contested or uncontested. In an uncontested divorce, the parties reach an agreement before they go to court. An uncontested divorce is generally less expensive than a contested divorce. In a contested divorce, the parties have not reached an agreement when they go to court, and the judge will decide how issues such as spousal maintenance, child support, and property division will be handled.
If you have an uncontested divorce with simple finances and no children, you can expect your divorce to cost less than it would otherwise.
Whether or not you hire an attorney will affect the cost.
Although attorney fees can be a significant cost in a divorce, an attorney will be able to guide you through the process and help you navigate not only the legal, but also the practical complexities. If your spouse is hiding assets, like a 401K or pension plan, your attorney may be able to help you find those undisclosed assets through discovery. Not hiring an attorney could potentially cost you a share of undisclosed assets. If your spouse earns more than you do and has tried to convince you to not spend money on attorney fees, you should be suspicious of that advice. It may benefit your spouse and harm you in the future.
While you may be tempted to represent yourself in your divorce, please make that decision carefully. Representing yourself may save you money initially, but it may cost you more in the long-run. You may also have a better outcome if you hire an attorney, especially if your spouse has hired one as well.
There will be costs for your divorce, even without an attorney.
Even if you choose to represent yourself in your divorce, you will still have to pay court-filing fees, which vary by state but average $300 nationally. You may be able to get a waiver from the court if you and your spouse can prove that you cannot afford these fees.
There are also other fees that you might not anticipate, such as costs related to name changes, refinancing debts, or updating estate documents. You may also face changes to your cost of living, since you will now be living apart.
What might be the difference in cost if the divorce goes to trial (litigated) instead of settled out of court?
In general, divorce cases that go to trial are significantly more expensive than cases that settle. Litigated divorces can sometimes take a year or longer, with several Court appearances. You will probably spend time with your attorney preparing for each trial appearance. You will pay your attorney to prepare for hearings. Court costs, attorney fees, witness and expert fees and other litigation-related expenses can add up quickly. The cost for a settlement will generally be much less.
It is important to weigh the potential costs and benefits of settlement versus trial. You may spend more money going to trial than you would have lost if you had agreed to settle your case. You may also have a worse outcome in court than if you had agreed to your spouse’s proposal during negotiations. You have more control over how the divorce settles if you reach an agreement during negotiations.
It’s also difficult to predict the result you will get in court. You don’t know the judge, and the judge doesn’t know you. By litigating your case, you’re placing your divorce in the hands of a stranger. Litigation is expensive and emotionally taxing. This doesn’t mean that you shouldn’t litigate your divorce, but it does mean you should think carefully about whether it will be worth it.
How long will the divorce process take?
The length of the divorce process varies on a case-by-case basis. If your marriage is ending, you probably want a fast and seamless resolution, especially if you feel you’re in a loveless marriage or toxic relationship. Even an amicable marriage can lead to a difficult divorce. The time your divorce will take varies depending on whether you and your spouse can reach an agreement out-of-court and how quickly the court can review your pleadings.
An uncontested divorce is one in which the parties are able to resolve all of their major issues before going to court. In general, uncontested divorces take less time than contested divorces. A contested divorce is one in which the parties argue about the major issues and can’t reach a resolution before going to court. You can expect an uncontested divorce to take less than a year, although even a seemingly simple divorce can possibly take an unexpected amount of time. This is often the result of the Court’s busy schedule.
The length of your divorce depends, in part, on where you live.
The state in which you live will have divorce requirements, which will affect how quickly you can secure a divorce. Colorado requires parties to wait 91 days after filing for divorce before they receive the decree. The county in which your case is handled will also be a factor. Metro counties often have fuller dockets, and therefore it takes more time to get on their schedules.
It will take your attorney time to gather the necessary information and draft a petition for dissolution of marriage.
After your attorney has drafted a petition for dissolution of marriage, your spouse will be served. Your spouse will then have 21 days to respond if your spouse is served within Colorado and 35 days if your spouse is served outside Colorado. Financial disclosures are also required in a divorce, and those documents take time to compile and prepare.
Divorces are fastest when the parties can reach an amicable solution.
If you and your spouse argue about spousal maintenance, child support, division of property, or debt, it will increase how much time your divorce takes. A tense relationship may cause issues during the divorce, but even a divorce where the parties get along will take time. Even an uncontested divorce may take several months to resolve.
Having enough money helps, but the process will always take time.
While having enough money to pay your attorney fees helps, it may not speed up the divorce process. Divorces tend to be time-consuming. If you’re lucky, you and your spouse will be able to reach an amicable resolution through mediation or with assistance of counsel. However, contentious divorces might not settle in mediation, and you’ll have to wait for a hearing with a judge. The judges in Colorado have busy dockets, so it may take time for them to hear your case.
Do I need to appear in court to get divorced?
In general, most cases have at least one appearance in court, but, in some limited circumstances, you may be able to get divorced without appearing in court. If you feel nervous about the divorce process and hesitant to appear in court, consulting with an attorney may ease your nerves. An attorney can help you understand what to expect during the divorce process. It will likely make the divorce process easier and less intimidating to have an advocate to help you through the process.
In Colorado, it is possible to obtain a divorce without appearing in court. You may be able to avoid going to court if attorneys represent both you and your spouse. Your attorney can draft all of the necessary documents and help you reach an agreement outside of court. If you and your spouse are able to agree on all of the issues in your case, like child support, parental responsibilities, spousal maintenance, and property division, a signed separation agreement and/or parenting plan will be submitted to the Court, which the court may accept without a hearing. Your attorney may be able to address any questions from the court, reducing the likelihood that you will need to appear.
There is no guarantee that you will be able to obtain a divorce without appearing in court, but an attorney may be able to increase the chance that you won’t have to appear. You will usually need to appear in person for a short, final hearing in an uncontested case. However, your attorney can submit an “Affidavit for Decree Without Appearance of Parties” to try to avoid such a hearing. While this is not appropriate in all cases, it may make it possible for you to avoid an appearance in court. The Affidavit may only be filed in cases in which there are no minor children of the marriage or, if there are children, in cases in which both parties have attorneys representing them.
Is Colorado a 50-50 state for parenting time (visitation)?
If you and your spouse divorce in Colorado with children, you may face a co-parenting situation. Under Colorado law, the term “child custody” has changed to “allocation of parental responsibilities.” Based on the best interests of the children, the court will determine how to allocate parental responsibilities, including parenting time and decision-making. Colorado does not have a presumption in favor of co-parenting. In fact, Colorado law clarifies that co-parenting is not always the best option.
Shared physical care
In Colorado, parents have shared physical care of the child if each parent has the child for more than 92 overnights each year and both contribute to the support of the child, in addition to payment of child support.
Split physical care
In Colorado, parents have split physical care if each parent has the physical care of at least one of his or her children. That is, each parent has one or more children residing with him or her the majority of the time.
Courts may be reluctant to order split physical care because it forces siblings to live apart. Courts reason that the family has been divided by the divorce action and that separating the children into separate care with the parents only serves to divide them further. However, sometimes split physical care is appropriate.
The Court will use the best interests standard to determine how to allocate decision-making between you and your spouse. For major issues that affect your child, the court may order you to share decision-making jointly with your spouse, to make decisions individually, or a combination of the two. For example, you may have sole decision-making for major education decisions, while your spouse has sole decision-making for major medical decisions. The court may also give you or your spouse sole decision-making with the requirement that you discuss and try to agree upon decisions before making them. Generally, the Courts in Colorado prefer for parents to share decision-making responsibilities. Major decisions usually include education, health care, and religious training decisions.
You can expect the court to create an individualized parenting plan based on the best interests of your child. Colorado has rejected the idea of a presumed parenting plan. The court will tailor a parenting plan to your child’s best interests. Parenting time orders typically include regular parenting time, holiday parenting time, vacation and travel, telephone access, and relocation orders. Most parenting plans also include financial issues, such as child support, insurance coverage, extracurricular and out-of-pocket medical expenses, and tax exemptions.
The court will consider a number of factors to determine the best interests of your child, which include:
- Wishes of the child’s parents
- Wishes of the child (if mature enough to express them)
- Relationship between the child, parents, siblings, and others
- Adjustment of the child to their home, school, and community
- Physical and mental health of all individuals involved
- Ability of the parties to encourage the sharing of love, affection, and contact between the child and other parent
- The parties’ past pattern of involvement with the child
- Physical proximity of the parties’ residences
- The parties’ abilities to place the needs of their child over their own.
How can I resolve my custody case without engaging in a battle?
A child custody case does not have to be a battle, but, unfortunately, it often is. There are some ways to lessen the conflict in a child custody case, to make the experience easier for everyone involved. Of course, you can only control your own actions, so if you’re dealing with a difficult spouse or a toxic relationship, you may only be able to minimize and not eliminate strife completely.
You may find it easier to deal with your co-parent if you hire an attorney.
Our job as attorneys is to advocate for you and to make the legal process easier. Hiring an attorney is one step you can take to minimize conflict in your custody case. It can help to have someone to stand up for you who is on your team to negotiate a reasonable conclusion that’s best for your child. Having an attorney to communicate with your spouse’s attorney and to present possible options for decision-making and parenting time can also lessen conflict in the future. If you have a well-drafted parenting plan, you’ll find that it minimizes future issues. We’ve helped a lot of clients navigate through difficult custody cases, and we can help you too.
Try to work together with your ex as co-parents.
You may have a difficult co-parent, but you should keep in mind what’s most important – the best interests of your child. You and your child’s other parent may have very different parenting styles, educational values, or scheduling, but you should try to cooperate with them for the sake of your child.
Here are some tips for avoiding conflict during a child custody dispute:
- Try not to blame your child’s other parent – It may be tempting to blame them for everything that’s happening, but try not to. Blaming them takes a toll on your child. Privately discuss, without blame, any problems that arise. Make sure these discussions happen away from your child.
- Establish a support network – Parenting during and after a divorce or breakup may be exceedingly difficult. Try to focus on the positive and make sure you have the support you need. You may find it helpful to join a support group, see a therapist, or rely on family and friends. Make a list of people who can help you with babysitting, listen to your concerns, and offer advice.
- Support your child’s relationship with their other parent– Although you may feel bitter after a difficult breakup or divorce, put those feelings aside and support your child’s relationship with them. Your child will benefit from a strong relationship with both parents, and it will make your life easier. If you and your co-parent can get on the same page, you’ll minimize long-term struggles.
At what age can a child choose which parent he or she wants to live with?
The court must consider a number of factors to determine an appropriate parenting time schedule or in reviewing a schedule that you and your co-parent have created by agreement. Although your child will not be able to choose which parent he or she wants to live with, your child’s wishes are important to the court. The court will consider your child’s maturity when deciding how much weight to give your child’s wishes.
Age is not the determining factor for the court. The court will consider your child’s wishes if your child is “sufficiently mature to express reasoned and independent preference as to the parenting schedule.” For instance, the court may determine that a five-year-old child who is scared after witnessing a parent’s aggressive behavior is sufficiently mature to express his or her wishes. Whereas, the court may find that a fifteen-year-old who wants to live with a parent who has lax rules and allows them to skip school is not sufficiently mature. In our experience, the Colorado courts often consider the wishes of children who are 14 years old or older, although there is no absolute rule.
A child does not have a right to representation by independent counsel, but a child’s wishes may be communicated to the court in several ways. The court may consider a child’s out-of-court statements as hearsay, but there are exceptions that may apply. A Child and Family Investigator (“CFI”) or Parental Responsibilities Evaluator (“PRE”) may also present the child’s wishes to the court. In practice, some courts may accept the parents’ statements as evidence of the child’s wishes. As noted above, the weight that the court will give this information varies.
How much maintenance can I expect to receive? Is it better to receive a lump sum?
The answer to this question depends on the factors of each case.
In most divorce cases, the court will follow a formula to determine spousal maintenance.
If you’re going through a divorce, you are probably wondering what kind of lifestyle you can expect after the divorce is finalized. Under Colorado maintenance law, the term “alimony” has changed to “maintenance” and “spousal support.” The court will determine whether maintenance is appropriate in your case and, if so, how much to award and for how long.
The court may award you temporary maintenance during your divorce proceedings. If you and your spouse have a combined annual income less than $360,000, then the court will consider advisory guidelines to determine the temporary maintenance award. The court will also determine temporary payment of marital debt and temporary allocation of marital property.
The court will determine your final maintenance order using advisory guidelines as well, if you and your spouse have a combined annual income of less than $360,000. The advisory guidelines only apply if you’ve been married for more than three years but not more than twenty years. The actual calculation of maintenance is fairly complex, and the court will use a formula to determine it. The calculation is based on each party’s gross income, and how many years they have been married. This calculation can then be modified by the court (as discussed below) after it considers several factors.
The length of maintenance is based on how long you’ve been married. It ranges from eleven months of maintenance for three years of marriage to ten years of maintenance for twenty years of marriage. If you’ve been married for longer than twenty years, the court has discretion to determine how much maintenance you’ll receive and for how long. If you and your spouse have been married for a long time, then the court may grant maintenance for life only to be rescinded upon death or remarriage, although this is rare.
However, the court may choose not to follow the spousal maintenance formula and may consider a number of other factors to determine the award.
The formula that Colorado courts use to calculate maintenance is fairly straightforward. However, you may be surprised that the court doesn’t strictly apply the formula in your case. The spousal maintenance guidelines are just that – guidelines – and the court may choose not to follow them.
To determine spousal maintenance, the court may consider:
- The financial resources of both parties;
- The marriage lifestyle;
- The division of marital property and debts;
- Each spouse’s employment and employability;
- The ability of one spouse to pay maintenance;
- The need of the other spouse to receive maintenance;
- Each spouse’s age and health; and
- Any significant economic and noneconomic contributions each spouse made to the marriage.
You will likely receive maintenance in periodic installments.
Although occasionally a court will award maintenance in a lump sum, it is more commonly paid in monthly installments.
What do I need to establish a civil protection order? What kind of circumstances would constitute grounds for a protective order?
A civil protection order, also known as a “restraining order” is a court order that protects one person from another person’s actions or threats. Civil protection orders are common in domestic abuse cases.
A civil protection order offers quick protection and can offer broad protection.
A civil protection order offers quick relief and personal protection. The judge will typically decide a temporary protection order on the same day you file it, which will last until a permanent protection hearing can be held, typically 14 days later. The civil protection order can offer broad protection. It can remove the other person from your home and grant you temporary care and control of your children. The temporary protection order can also prevent the other person from coming within a certain distance of your home, work, children’s day care, children’s school, friends’ or family’s residences and public places that you frequent.
A civil protection order may also protect children.
A civil protection order can also protect children. If you need to cover children with the protection order and the person you are trying to restrain is a parent of the children, then you will need to file an Affidavit Regarding Children. If the person you are trying to restrain is not the children’s parent, you can simply list the children under the “protected persons” section of the Motion for Civil Protection Order. Protection orders that protect children are fairly short-lasting though. If you are trying to obtain custody of your children, you should file a domestic relations case in District Court.
A civil protection order will not place the defendant in jail. If you are the victim of a crime, you should call the police.
You will need to provide certain facts to the court.
You will need to tell the court that the person to be restrained has hurt or threatened you and that you are in imminent danger of further abuse or threats. You will need to give specific information about the abuse – what happened, where and when it happened. You will also need to state who was present during the abuse and whether children were present. You may include past abuse as well.
A temporary protection order is a stop-gap protection.
A temporary protection order is a stop-gap protection that a judge may issue while you wait for permanent orders on your protection order. When you file for a protection order, you will typically have a hearing before the judge on the same day. If the judge decides that you are in imminent danger of abuse or threats, the court can order a temporary protection order. The temporary protection order lasts until the permanent protection order hearing is held (usually around 14 days).
A permanent protection order lasts forever.
A permanent protection order is like the temporary protection order, except that it has no expiration date and lasts forever, or until modified by the Court.
Diane Thomas Homes