Colorado Divorce Law

Divorce in Colorado is referred to as Dissolution of Marriage.

Residency Requirement:

To obtain a divorce in Colorado, one of the spouses must have lived in the state for at least 91 days prior to commencement of the proceeding. Additionally, if the case concerns a minor child, the child must have resided in Colorado for at least 182 days.

Filing:

The Petitioner (filing party) may file a Petition for Dissolution of Marriage in the district court. The Respondent (non-filing party) has 21 days after service to file a Response to the Petition. If the Respondent was served outside of the state, he/she has 35 days to respond.

The Colorado Rules of Civil Procedure apply to proceedings for dissolution of marriage, legal separation, or declaration of invalidity of marriage.

A Decree for Dissolution of Marriage may not be granted before 91 days have passed since the court acquired jurisdiction over the Respondent, either by service of the Summons and Petition on the Respondent, the Respondent joining in as co-petitioner in the Petition, or in entering an appearance in any other manner.

Dissolution of Marriage Upon Affidavit:

Final orders in a proceeding for dissolution of marriage may be entered upon the affidavit of either or both parties if they meet the following criteria:

• There are no minor children of the marriage and the wife is not pregnant, or the spouses are both represented by counsel and have entered into a separation agreement that provides for the allocation of parental responsibilities concerning the children of the marriage and setting out the amount of child support to be provided by either spouse or both;
• The adverse party is served in the manner provided by the Colorado rules of civil procedure;
• There is no genuine issue as to any material fact; and
• There is no marital property to be divided or the parties have entered into an agreement for the division of their marital property.

If one party wants to submit the matter for entry of final orders upon an affidavit, the submitting party shall file his or her affidavit setting forth sworn testimony showing the court's jurisdiction and factual averments supporting the relief requested in the proceeding together with a copy of the proposed decree, a copy of any separation agreement proposed for adoption by the court, and any other supporting evidence. Filing of this type of affidavit does not shorten any statutory waiting period required for entry of a Decree of Dissolution.

The court does not have to enter a decree upon the affidavits of either or both parties, but it may, upon its own motion require that a formal hearing be held to determine any or all issues presented by the pleading.

Parental Education:

A district court may order a parent whose child is under 18 years of age to attend a program designed to provide education concerning the impact of separation and divorce on children in cases in which the parent of a minor is a named party in a dissolution of marriage, legal separation proceeding, proceeding regarding the allocation of parenting time, or a post-decree proceeding in which the parent is subject to a protective order.

The educational program shall inform parents about the divorce process and its impact on adults and children and shall teach parents co-parenting skills and strategies so that they may continue to parent their children in a cooperative manner.

Any such educational program shall be administered and monitored by the implementing judicial district and shall be paid for by the participating parents, according to each parent's ability to pay.

Spouse's Name:

Colorado statute doesn't specifically address the issue of changing a spouse's name upon divorce. However, there is a section on the Petition for Dissolution of Marriage where a party may request that his/her surname be restored to a prior name. Alternatively, a person can change his or her last name after the divorce.

Dissolution of a marriage shall be granted by a court when the court finds that the marriage is irretrievably broken. While Colorado used to acknowledge certain grounds for divorce, today, it is a completely "no-fault" state.

If both parties have stated under oath or affirmation that the marriage is irretrievably broken, or one party has stated this and the other has not denied it, the court will presume this is the case, unless there is evidence to the contrary, and shall make a finding that the marriage is irretrievably broken after a hearing.

If one of the parties denies under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation and shall either make a finding whether the marriage is irretrievably broken, or continue the matter for further hearing between 35 and 63 days later or as soon as the hearing can be scheduled on the court's calendar.

If the matter is continued, the court may suggest that the parties seek counseling. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken.

Although more commonly known as annulment in other states, Colorado may declare a marriage invalid. The court shall enter a decree declaring the invalidity of a marriage if it was entered into under the following circumstance:

• Either party lacked the capacity to consent to the marriage at the time the marriage was commenced, either because of mental incapacity or infirmity, or because of the influence of alcohol, drugs, or other incapacitating substances;
  
  
• Either party lacked the physical capacity to consummate the marriage by sexual intercourse, and the other party wasn't aware of the incapacity at the time the marriage was entered into;
  
  
• Either party was under the age as provided by law and did not have the consent of his or her parent or guardian or judicial approval as provided by law;
  
  
• Either party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which goes to the essence of the marriage;
  
  
• One or both parties entered into the marriage under duress exercised by the other party or a third party, whether or not the other party knew of the use of duress;
  
  
• One or both parties entered into the marriage as a jest or dare;
  
  
• The marriage is prohibited by law, including the following:
  1. a. A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
  2. b. A marriage between an ancestor and a descendant or between a brother and a sister (half or whole);
  3. c. A marriage between an uncle and a niece or between an aunt and a nephew (half or whole), except for marriages permitted by the established customs of aboriginal cultures; and
  4. d. A marriage which was void by the law of the place where the marriage was contracted.

A declaration of invalidity may be sought by any of the following persons and must be commenced within the times specified:

• On the grounds that the party lacked capacity to marry, entered into the marriage due to fraud or duress, or as a jest or dare, the declaration may be sought by either party aggrieved by the circumstance or by the legal representative of the party lacking capacity, no later than six months after the Petitioner obtained knowledge of the condition;
• On the ground of impotence, the declaration may be sought by either party no later than one year after the Petitioner obtained knowledge of the impotence;
• On the ground of an underage party, the declaration may be sought by the under aged party or the party's parent or guardian, if the action is commenced within 24 months of the date the marriage was entered into;
• On the ground of bigamy, polygamy or an incestuous marriage, the declaration may be sought by either party, by the appropriate state official, by the legal spouse, or by a child of either party before the death of either party or before a final settlement of the estate of either party or prior to six months after an estate is closed;

A declaration of invalidity may not be sought after the death of either party to the marriage, except for cases of bigamy, polygamy or incestuous marriages.

Marriages declared invalid shall be declared as such, as of the date of the marriage. If the marriage was not contracted in Colorado, to obtain a Decree of Invalidity of Marriage, either party must have resided in Colorado for at least thirty days immediately prior to the commencement of the action.

Legal Age to Marry:

The legal age of consent to marry is 18 years. However, if a minor is at least 16 years of age, he or she may marry with the consent of both parents or guardians; or, if the parents are not living together, the consent of the parent who has legal custody or decision-making responsibility, or with whom the child is living; or judicial approval.

If the minor is under the age of 16 years, he or she may marry only with the consent of both parents or guardians; or. if the parents are not living together, the consent of the parent who has legal custody or decision-making responsibility, or with whom the child is living; and judicial approval. In these situations, the court has to consider the best interests of the child. The law specifically states that pregnancy alone does not establish that the best interests of the child would be served by the marriage.

In connection with every Decree of Dissolution of Marriage and to the extent of its jurisdiction to do so, the court shall consider, approve, or allocate the division of property. Colorado is an equitable distribution state.

The decree shall set apart to each spouse his or her property and divide the marital property, without regard to marital misconduct, in such proportions as it deems just after considering all relevant factors including the following:

• The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
• The value of the property set apart to each spouse;
• The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live there for reasonable periods to the spouse with whom any children reside the majority of the time; and
• Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.

Statute defines marital property as all property acquired by either spouse after the marriage with the following exceptions:

• Property acquired by gift, bequest, devise, or descent;
• Property acquired in exchange for other property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
• Property acquired by a spouse after a decree of legal separation; and
• Property excluded by valid agreement of the parties.

All property acquired by either spouse after the marriage and prior to a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership, such as joint tenancy, tenancy in common, tenancy by the entirety or community property. This presumption may be overcome by a showing that the property was acquired in one of the methods described above.

Marital property also includes separate property that increased in value since the date of the marriage, subject to limitations. Also, any gift from one spouse to another spouse is considered marital property.

Although the court may not consider marital fault or misconduct when dividing marital assets, it may consider economic fault. Maintenance and property settlement must be considered together to achieve just results and the property division must precede the consideration of maintenance.

The statutory criteria for dividing property are general in nature, and the trial court has wide discretion in dividing marital property to accomplish a just result. However, many factors enter in the determination, including the following:

• The value of the estate to be divided;
• The financial conditions of the parties;
• The ability of each spouse to earn money;
• How the property was acquired;
• The age and health of the parties; and
• All pertinent facts and circumstances.

A spouse must petition the court for an award of maintenance or support.

In every proceeding for dissolution of marriage or legal separation when temporary maintenance is requested by a party, the court can award a monthly amount of temporary maintenance, determine the term for payment of temporary maintenance and consider relevant factors and additional factors, such as the payment of family expenses and debts when making this calculation.

The district court can order the payment of maintenance from one spouse to the other in an amount and for a term that the court determines to be fair and equitable to the parties. Spousal misconduct is not considered int his calculation.

When a party has requested maintenance in an appropriate proceeding, the court will first make a written finding on the following:

• The amount of each party's gross income
• The marital property provided to each party
• The financial resources of each party, including the actual or potential income from separate or marital property
• Reasonable financial need established during the marriage

The court then determines the amount of maintenance and the term for which it should be paid by considering the advisory guideline amount and term. Which is based on the duration of the marriage and the combined gross income of the parties, relevant factors and whether the party seeking maintenance has met the requirement to receive this relief.

When the marriage has lasted at least three years and the parties' combined annual adjusted income is not more than $240,000, the advisory amount is equal to 40% of the higher income party's monthly AGI minus 50% of the lower income party's monthly AGI, but in any event, the recipient should not receive more than 40% of the parties' combined monthly adjusted gross income. The presumed amount of support under the advisory guidelines increases as the duration of the marriage increases. For example, a marriage that lasts for 36 months results in a 31% award under the guidelines whereas a marriage that lasts 240 months results in a 50% award.

The advisory term for spousal support is based on the length of the marriage. For example, a marriage of 36 months results in an award of 11 months according to the guidelines whereas a marriage of 230 months results in an award of 115 months. If the marriage lasted more than 20 years, the court can make an award for a certain amount of years or an indefinite term, but any award should be for as long as the term for a 20-year marriage.

The court considers the following factors when making spousal support determinations

• The financial resources of the requesting party, including the actual or potential income from separate or marital property or any other source and its ability to meet the spouse's needs independently
• The financial resources of the paying spouse, including the actual or potential income from separate or marital property or any other source and the ability of the paying spouse to meet his or her reasonable needs while paying maintenance
• The lifestyle during the marriage
• The distribution of marital property, including whether additional property can be awarded to reduce or eliminate the need for maintenance
• The income, employment and employability of both parties, considering also whether additional training or education could increase these
• The reduction in employment due to the needs of a child of the marriage or the parties' circumstances
• Whether one party has historically earned higher or lower income than the income reflected at the time of a permanent spousal support order
• Duration and consistency of income from overtime or secondary employment
• The duration of the marriage
• The amount of temporary maintenance and the term of it
• The age and health of the parties, including uninsured or unreimbursed health care expenses
• Significant economic or noneconomic contributions to the marriage or to the economic, educational or occupational advancement of a party
• Whether nominal maintenance should be awarded to preserve a future claim for maintenance
• Any other factor the court considers relevant

In connection with every decree of dissolution of marriage and to the extent of its jurisdiction to do so, the court shall consider, approve, or allocate parental responsibilities with respect to any child of the marriage, and the support of any child of the marriage who is entitled to support.

Parenting Time and Decision-making Responsibility:

Colorado lawmakers decided that it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage. Parents are therefore encouraged to share the rights and responsibilities of child-rearing and to encourage the love, affection, and contact between the children and the parents.

The court shall determine the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child, giving paramount consideration to the physical, mental and emotional conditions and needs of the child.

In determining the best interests of the child for purposes of parenting time, the court shall consider all relevant factors, including the following:

• The wishes of the child's parents regarding parenting time;
• The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences regarding the parenting time schedule;
• The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests;
• The child's adjustment to his or her home, school, and community;
• The mental and physical health of all individuals involved, although a disability alone shall not be a basis to deny or restrict parenting time;
• The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
• Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
• The physical proximity of the parties to each other as this relates to the practical consideration of parenting time;
• The ability of each party to place the needs of the child ahead of his/her own needs.

In determining decision-making responsibility, the court may allocate the decision-making responsibility, regarding each issue affecting the child, mutually between both parties or individually to one or the other party or a combination of both.

In determining the best interests of the child for purposes of allocating decision-making responsibilities, the court shall consider the same factors as considered for parenting time, as well as additional relevant factors as follows:

• Credible evidence of the ability of the parties to cooperate and make decisions jointly;
• Whether the past pattern of involvement of the parties demonstrates an ability to make joint decisions that provide a positive and nourishing relationship with the child; and
• Whether joint decision-making would promote more contact between the child and each party.

If the court makes a finding that one of the parties has been a perpetrator of child abuse or neglect, domestic violence, or sexual assault resulting in the conception of the child, the court's primary concern must be to the safety and well-being of the child and the abused party and must consider this when making a parenting time schedule. It can also implement additional protections, including:

• Establishing court orders that limit contact between the parties
• Exchanging the child in a protected setting
• Ordering supervised parenting
• Restricting overnight visits
• Ordering the abusive party abstain from alcohol or drugs during parenting or for 24 hours prior to it
• Keeping the child or other party's address confidential
• Ordering domestic violence evaluations or treatment

the court shall not presume that any person is better able to serve the best interests of the child because of his or her sex.

If a party is absent or leaves home because of an act or threatened act of domestic violence committed by the other party, that absence or leaving will not be a factor in determining the best interests of the child.

In the event of a medical emergency, either party shall be allowed to obtain necessary medical treatment for the minor child or children without being in violation of the order allocating decision-making responsibility or in contempt of court.

In order to implement an order allocating parental responsibilities, both parties may submit a parenting plan for the court's approval that shall address both parenting time and allocation of decision-making responsibilities. If no parenting plan is submitted or if the court does not approve a submitted parenting plan, the court, on its own motion, shall formulate a parenting plan that shall address parenting time and the allocation of decision-making responsibilities.

Child Support:

In a proceeding for dissolution of marriage or legal separation, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for the child's support and may order an amount determined to be reasonable under the circumstances for a time period that occurred after the date of the parties' physical separation or the filing of the petition or service upon the Respondent, whichever date is latest, and prior to the entry of the support order, without regard to marital misconduct.

In determining the amount of support, the court shall consider all relevant factors, including the following:

• The financial resources of the child;
• The financial resources of the custodial parent;
• The standard of living the child would have enjoyed had the marriage not been dissolved;
• The physical and emotional condition of the child and his or her educational needs; and
• The financial resources and needs of the non-custodial parent.

The child support guidelines and schedule of basic child support obligations are based on the Income Shares Model, and have the following purposes:

• To establish as state policy an adequate standard of support for children, subject to the ability of parents to pay;
• To make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; and
• To improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance in establishing levels of awards.

The child support guidelines and schedule of basic child support obligations do the following:

• Calculate child support based upon the parents' AGI estimated to have been allocated to the child if the parents and children were living in an intact household;
• Adjust the child support based upon the needs of the children for extraordinary medical expenses and work-related childcare costs; and
• Allocate the amount of child support to be paid by each parent based upon physical care arrangements.

The basic child support obligation is determined by using a child support schedule. The basic child support obligation shall be divided between the parents in proportion to their adjusted AGI.

The parties to a marriage may enter into a written separation agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the allocation of parental responsibilities, support and parenting time of their children.

In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the allocation of parental responsibilities, support and parenting time of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

If the court finds the separation agreement unconscionable, it may request that the parties submit a revised separation agreement, or the court may make orders for the disposition of property, support and maintenance.

If the court finds that the separation agreement is not unconscionable regarding support, maintenance and property it will proceed as follows:

• Unless the separation states differently, its terms shall be set forth in the decree of dissolution or legal separation, and the parties shall be ordered to perform them; or
  
  
• If the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement and shall state that the court has found the terms not unconscionable.