Divorce/Legal Separation

The law in Colorado requires the following elements in order for individuals to obtain a Decree of Dissolution of Marriage or Decree of Legal Separation:

At least one of the parties has been domiciled in Colorado, for 90 days before the filing of the petition;
The marriage is "irretrievably broken;"
At least 90 days or more has passed since the court acquired jurisdiction over the other party.

A Dissolution of Marriage proceeding is brought by the filing of a Verified Petition for Dissolution of Marriage. The party seeking the dissolution or divorce is termed the "Petitioner" and the party responding the petition, is termed, the "Respondent." When the Respondent resides in Colorado, and is served by process server or sheriff, that party has 20 days to respond to the allegations in the petition. If the Respondent resides outside Colorado and is served, that party has 30 days to respond.

The power of a court to act, or enter appropriate orders after the "service" of the petition, means that the court acquires jurisdiction, over the parties and the case.

A Divorce is different from a Legal Separation. A Divorce means that the parties are asking the judge to dissolve the marriage. Because Colorado is a "No Fault" jurisdiction, the parties are not required to give a reason for why they want a divorce. A Legal Separation has the same elements that need to be established as in a divorce, except, at the conclusion of the case, the marriage is not dissolved, but the parties are deemed "separated." After a period of 6 months from the date that a legal separation is entered by a court, either party may file a motion to convert the legal separation to a decree of dissolution. Of course, it is not possible for parties who have been legally separated to remarry.

Contested Divorce

A Contested Divorce case means that the parties have not been able to reach a mutually acceptable agreement to resolve the disputes in their divorce case. When parties can not agree, on one or more matters, the case is "contested," and requires the rulings of a judge to determine a fair and equitable division of the marital estate. A Contested Divorce hearing or trial is called a Final or Permanent Orders hearing. At this hearing, the parties may call witnesses and introduce evidence or documents that support their respective positions. At the Final Orders hearing, the rules of evidence apply to what the court may or may not consider. Since there is no right to a trial by jury in a Contested Divorce case the parties must rely on the rulings of the judge. A judge in a Contested Divorce Final Orders Hearing, has the discretion to enter certain orders which the judge believes is fair. Absent an abuse of discretion by a judge at a Final Orders hearing, a judge's rulings will not be overturned by an appellate court. Therefore, there is a lot at stake when parties who can not agree ask a judge to rule on the issues in their divorce case. A Final Orders Hearing is usually scheduled for a specific block of time on the judge's docket for a date certain. The parties will be required in a Contested Divorce case to submit their "position statements" at least 10 days before the hearing, in a document called, a Trial Management Certificate (TMC). In a Trial Management Certificate, the judge can have the parties' respective positions on the issues and what the parties are requesting the judge to do at the hearing.

Uncontested Divorce

An uncontested Divorce case means that the parties have been able to agree to settle their disputes and divorce each other in a friendly amicable manner. Compromise and give and take by both parties is necessary in order to reach an agreement that is acceptable to both parties. In an uncontested Divorce action, the agreement entered into by the parties to resolve their disputes, and is filed with the court, is called a Separation Agreement. The Separation Agreement will be treated by the court the same as a binding contract. The court must decide if that contract is "not unconscionable" before the court can enter an order dissolving the marriage, and approving the parties' agreement. This means that the terms of the Separation Agreement must be fair and equitable, and that neither party has an upper hand, or will benefit unfairly from the agreement. The parties must sign the agreement, and when the judge enters a Decree, the court will adopt each of the terms of the Separation Agreement, as an order of the court. Future enforcement of all of the terms of the Separation Agreement, is a powerful post dissolution remedy for a party who claims that a former spouse has failed to live up to the terms of the agreement as expressed in the Separation Agreement.

No Fault Divorce

Under Colorado law, the term, "No Fault Divorce" means that regardless of fault, either party may seek to have a court dissolve a marriage. This concept only requires proof that the marriage is, "irretrievably broken." The parties may agree that the marriage is irretrievably broken by simply stating that for whatever reason or reasons, they choose not to be married to one another.

Annulments

The law in Colorado uses the term, “Declaration of Invalidity” and not the term, “Annulment” to describe a legal situation where the party who has filed his or her petition believes that the marriage should be declared invalid. This is a type of proceeding where a party challenges the validity of that person’s marriage on specific grounds. There are rare factual conditions that would allow for the granting of this type of relief. The most common factual grounds to establish the basis for an annulment or invalidity of marriage, is where one of the parties was married to someone else, at the time the parties married each other.

Here is an example: Tom and Mary were married in the courthouse in Castle Rock, on May 12, 2000. About 5 years later, Mary found out that Tom was married to Lisa in a ceremony in 1995, but that Tom did not obtain a divorce from Lisa. Therefore, at the time Tom and Mary were married, Tom’s was still married to someone else. Clearly, Tom made a fraudulent representation to Mary when he married her that he was not married to anyone else, when in fact, Tom was indeed still married to Lisa. An experienced divorce or family law attorney will know if the facts fit the requirements of the law that would entitle a party to seek an annulment or to have the marriage declared invalid.

Common Law Marriage

In most instances, when a man and woman agree to marry, they obtain a license in the county and state where they intend on marrying and have a ceremony before friends and family in which they exchange wedding vows. However, there are other kinds of relationships where the parties have not participated in a religious or civil ceremony, nor have they obtained a marriage license, but for all intents and purposes, consider themselves "married." These relationships are recognized in Colorado as common law marriages. The Colorado Supreme Court stated that, " . . . a common law marriage, is established by mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship." The court further defined common law marriage, where the parties enter into an agreement to be married, and cohabitate as husband and wife. This long standing recognition of a common law marriage in Colorado, dates back to 1907. A common law marriage could be established if some, if not all of the following facts are present:

The parties have told others that they are living together as husband and wife;
The parties have children together and have made joint decisions for the benefit of the children;
The parties have lived together or have cohabitated together;
The parties have filed joint federal and state tax returns;
The parties have opened one or more bank accounts, credit cards, etc.;
The parties have funded IRAs or other retirement accounts together;
The parties have shared in paying joint "marital expenses;"
The parties have purchased property (house, land, etc.) together and titled the property in both of their names;

It is important for parties who have been in a common law marriage to understand, that it is their deeds and conduct in holding themselves out to the public, friends and relatives, which will most likely determine if a common law marriage is recognized by a court. When a common law marriage has been recognized by a court, all of the same rights and benefits that those who have had the government sanction their relationship in a marriage license, are also available to those in a common law marriage.

Fault as an Issue

Under the "No Fault" provision of Colorado law, fault is not usually allowed. However, there exists certain circumstances, which allow a judge to consider the impact of fault by either party. The most likely situation where fault is allowed to be proved occurs when one of the parties has spent or used marital monies on a venture or while engaging in conduct that was not approved by an agreement of the parties beforehand. A husband or wife who has a gambling or drug or alcohol problem and depletes marital accounts to support this behavior, is an example of when fault could be an issue. Usually, evidence that a party in a divorce action has been having an extra-marital affair is not going to be allowed by the court to support the other party's claim or allegations against the other party. But, when a husband or wife in a divorce proceeding intends on showing the court that the other party used marital funds for travel or entertainment, that evidence may be admitted to establish that the other party, "wasted" marital assets.

The Law Offices of

Gordon N. Shayne