How will the Court divide our property?

Colorado is a “marital” property state, which means that all property acquired during your marriage is considered joint property of both spouses, regardless of who earned the money or made a purchase.  C.R.S. 14-10-113. The only property that will be considered separate will be property acquired before the marriage and kept  separate, not comingled or mixed with marital property. Separate property also includes things purchased with separate property, however increases in value during the marriage are considered marital property.

Once all marital property is identified, the court will divide the marital property equitably. This does not mean that the division will be exactly equal, the court will consider a number of factors when dividing property, including:

  • each spouse’s contribution to the acquisition of marital property, including contributions as a homemaker,
  • who receives the family home,
  • increase or decrease in the value of a spouse’s separate property during the marriage,
  • use of separate property to satisfy marital expenses or debts
  • support awarded to one spouse

 

Debts acquired during the marriage are also marital property, regardless of who incurred the debt or for what purpose. Thus, keep in mind that your debts will also be divided equally unless they can be considered separate property. Separate debts are often difficult to determine. The court will determine whether the debt was acquired to benefit the marriage, for example educational loans can be joint debts if they were acquired during the marriage, and the spouse’s education benefited the marriage in increased income or other benefits.  However, such a determination is often subjective. If you believe you or your spouse may have significant separate debts you should consult an attorney.

Also remember that you are not allowed to “dissipate,” in other words, hide or get rid of, marital property once one party has filed a divorce petition. This is extremely important because to attempt to hide or eliminate marital property during a divorce is violation of a court order and therefore grounds for contempt. While you likely won’t go to jail for such a violation, the judge will take it into consideration during the court’s division of property, and you are much less likely to receive a favorable result.

Property division issues are often a great place to start negotiating a settlement. However, just because dividing property can seem like a simple numbers calculation, does not mean that it is not helpful to have a lawyer. Lawyers can help you understand what you might be entitled to under the law. A lawyer can also help you assess the value of different property or hire a professional to do so. Perhaps most importantly, an attorney can help you negotiate the best terms for you or represent your economic interests in a final hearing. Contact our office today if you want to discuss property division issues with one of our attorneys.

Will one party owe spousal support to the other? How is spousal support calculated?

Spousal support is the more modern term for alimony. In Colorado, the courts use the term maintenance, because the purpose of the statue is to provide a means for a spouse with less income to “maintain” more or less their standard of living from their marriage for a period of time, typically dependent on the duration of the marriage. C.R.S. 14-10-114. In determining maintenance, the court will consider a number of factors including, the parties’ standard of living before the marriage, the resources of the party seeking maintenance, the time necessary to gain education or training to increase their earning capacity, age of the spouses, the physical and emotional condition of the spouse seeking maintenance, and the other spouse’s ability to pay.

 

Like most aspects of Colorado family law, maintenance awards are not a punishment or reward for one parties’ behavior during the marriage or the divorce. Instead, the purpose is equal distribution of assets so that the parties can move on and eventually live entirely independently. Maintenance can be a complicated issue as it can be one of the more difficult aspects of a divorce to estimate precisely. This is because it is very dependent of on the judge’s exercise of discretion. This is also an area where spouses can have a fair amount of flexibility during settlement discussions. Thus, it is a great idea to consult an attorney about your prospects for either receiving or paying maintenance.

Can I get divorced without an attorney?

Colorado law certainly allows and even provides some assistance for people who represent themselves in a divorce. However, despite the forms available on the court website: https://www.courts.state.co.us/Forms/SubCategory.cfm?Category=Divorce, and the minimal assistance some county courts provide, it does require a significant amount of time and effort to educate yourself, fill out forms properly, and keep track of the required court deadlines and appearances. Thus, pursuing your own divorce is something you should consider very carefully. Here are a few things to consider:

 

  • Is this a contested divorce?
  • Do you have a small or simple martial estate? In other words are your debts and assets easily defined and can they be easily divided?
  • Do you have relatively equal incomes or are not seeking maintenance? The ideal situation would be relatively equal incomes, so maintenance is not an issue, or, if there is a disparity in incomes, there are no issues of underemployment, hidden income, or inability to work, as these are often highly contentious and involve extensive evidentiary proof.
  • Do you have children? You can get a divorce on your own even if you have children, however, experience in this field has taught us that issues involving children are usually too complex for parties to negotiate purely on their own and this often devolves into fighting that ends up costing the parties, more time, money and grief in the end.
  • Do you live in Colorado? If you live outside the state there are additional steps you’ll need to take and it can be very helpful to have a local attorney handling your case for you.

 

If you have any questions about these considerations, or would like to discuss whether you should pursue a case on your own without an attorney please feel free to contact our office and schedule a consultation with one of Smith, Shellenberger, and Salazar’s experienced attorneys.

How does the Court determine who gets what?

The court will attempt to reach a “fair and equitable” distribution of property and a custody determination that is in the best interests of the children. Since family law is essentially about what is fair to all parties; even if one party is a wrongdoer in some way, the family courts are not a forum for punishment. The system is intended to allow parties to separate their finances and property and arrange for them to continue raising their children with the least conflict possible. As a result, people rarely get everything they want in a divorce or legal separation.

Thus, it is often in your best interest to reach an agreement with your spouse on any issues you can. Not only does this save you time and money, but it also allows you to make the determinations rather than a judge, allowing you to know with certainty what you will receive. Colorado law encourages parties to reach agreement on all possible issues. Thus, the court will mandate some form of mediation or settlement discussion. The county in which you are seeking your divorce and your judge will dictate when and how such mediation takes place. An attorney can be very helpful in this process. Not only can an attorney advocate for you and your interests during the mediation process, making the mediator aware of applicable law, but an attorney can also discuss with you reasonable likely outcomes of a trial.

If you have questions about how the court might resolve a specific issue in your case, please contact our office to schedule a consultation with one of the experienced attorneys at Smith, Shellenberger and Salazar, LLC.

My spouse filed for dissolution of marriage. What do I do now?

As the Petition has already been filed, you must be served with it, if you haven’t already. Unless you have consulted with an attorney on the matter it is not a good idea to attempt to evade service of the petition, as judges often do not look favorably on this sort of behavior and your spouse will likely find a way to proceed anyway.

You should accept service of the Petition. Next, you will have to submit the mandatory financial disclosures to the court. These disclosure forms can be found on the Colorado Courts website. You must fill out these financial disclosures regardless of the disputed issues in your case, because the Court must understand the full extent of the parties’ financial circumstances in order to make a fair ruling on all aspects of the divorce.

Once you have been served a petition for dissolution of marriage or legal separation, an injunction goes into effect. C.R.S. 14-10-107(4)(b)(I) dictates that the injunction prevents both spouses from:

  1. Removing children from Colorado without permission from the other spouse or the family law court. Usually permission for a vacation or summer camps etc. will be granted, but you must get permission.
  2. Disturbing or harassing the other spouse.
  3. Hiding, destroying, transferring or disposing of marital property, except in the ordinary course of business.
  4. Canceling or modifying any insurance (health, auto, life, etc.) without your spouse’s written consent or the Colorado divorce court’s permission, or allowing the policy to lapse for non-payment.

 

There remains debate as to whether activities other than those listed here are also prohibited. To err on the side of caution it is best practice to maintain all financial matters as they currently stand, from the time the petition was filed until final orders are issued.

Within 40 days of the filing of the Petition, the Court will set an initial status conference for the parties. Depending on the county the initial status conference may be before a family court facilitator or a magistrate judge. Regardless of who is presiding this is a preliminary conference to set deadlines for disclosures, schedule upcoming hearings, and discuss the anticipated issues in the case. The initial status conference is quick, about 10 minutes.

After that the proceedings depend on the circumstances of your case. If you have agreed on all matters in your case you can file for dissolution without ever having to appear for a hearing. If there are disputed issues those will be resolved at a permanent orders hearing, which is a full hearing before the judge including witnesses, evidence, and opening and closing statements. If your case proceeds to a permanent orders hearing, this can be lengthy and expensive, however, the attorneys at Smith, Shellenberger, and Salazar, LLC can ensure that you receive the best representation possible at your permanent orders hearing.