Colorado Divorce Law

Divorce and Legal Separation in Colorado



Divorce and Legal Separation in Colorado

Colorado Divorce Basics

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 90 days prior to commencement of the proceeding.

Filing:

The Petitioner (filing party) may file a Petition for Dissolution of Marriage in the district court. The Respondent (non-filing party) has 20 days after service to file a Response to the Petition. If the Respondent was served outside of the state, he/she has 30 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 90 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/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 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 or legal separation proceeding.

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 in accordance with 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.

Legal Grounds for Divorce

Dissolution of a marriage shall be granted by a district court when the court finds that the marriage is irretrievably broken.

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 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, no sooner than 30 days, nor more than sixty days later, or as thereafter as the matter may be scheduled.

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.

Declaring a Marriage Invalid

Although more commonly known as annulment in other states, Colorado may declare a marriage invalid. The district 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 it was solemnized, 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 solemnized;

  • Either party was under the age as provided by law and did not have the consent of his parents 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:

        a. A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;

        b. A marriage between an ancestor and a descendant or between a brother and a sister (half or whole);

        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

        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 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;
  • On the ground of bigamy or polygamy, the declaration may be sought by the legal spouse; and
  • On the ground of an incestuous marriage, the declaration may be sought by the appropriate state official, or by a child of either parent.
A declaration of invalidity may not be sought after the death of either party to the marriage, except for cases of bigamy, polygamy and incestuous marriages. In these cases, a declaration may be sought at any time prior to the death of either party or prior to the final settlement of the estate of either party and the discharge of the personal representative of the estate or prior to six months after an estate is closed.

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/she may marry with the consent of both parents or guardian; 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/she may marry only with the consent of both parents or guardian; 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.

Property Division

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 shall set apart to each spouse his/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 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 and community property. This presumption may be overcome by a showing that the property was acquired in one of the methods described above.

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 status of the parties; and
  • All pertinent facts and circumstances.

Maintenance and Support

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 maintenance of either spouse.

In every proceeding for dissolution of marriage or legal separation when temporary maintenance is requested by a party and when the combined annual gross income (AGI) of the two parties is $75,000 or less, the court will show preference to a specific award of temporary maintenance from the higher income party to the lower income party based upon the following formula:
    The amount is equal to 40% of the higher income party’s monthly AGI minus 50% of the lower income party’s monthly AGI. If that amount is zero or a negative number, the presumption shall be that temporary maintenance shall not be awarded. If the number is more that zero, that amount shall be the amount of the monthly temporary maintenance.

    In calculating the formula, the monthly AGI means gross income minus pre-existing maintenance ro alimony obligations actually being paid and minus the amount of child support being paid.
In cases where the combined AGI of the parties exceeds seventy-five thousand dollars, the court may grant a temporary maintenance order or a maintenance order at the time of permanent orders for either spouse only if it finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to him/her to provide for his/her reasonable needs; and he/she is unable to support him/herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

These maintenance orders for couples with a combined AGI of more than $75,000 shall be in the amount and for the time periods that the court deems just, without regard to marital misconduct, and after considering all relevant factors, including the following:
  • The financial resources of the requesting party, including marital property apportioned to him/her, and his/her ability to meet his/her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for him/her;
  • The time necessary to acquire sufficient education or training to enable the requesting party to find appropriate employment and that party’s future earning capacity;
  • The standard of living established during the marriage;
  • The length of the marriage;
  • The age and the physical and emotional condition of the requesting party; and
  • The ability of the paying spouse to meet his/her needs while meeting those of the requesting spouse.

Parenting Time and Child Support

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 interest 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/she is sufficiently mature to express reasoned and independent preferences regarding the parenting time schedule;
  • The interaction and interrelationship of the child with his/her parents, his/her siblings, and any other person who may significantly affect the child’s best interests;
  • The child’s adjustment to his/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;
  • Whether one of the parties has been a perpetrator of child abuse or neglect, which shall be supported by credible evidence;
  • Whether one of the parties has been a perpetrator of domestic violence, which shall be supported by a preponderance of the evidence; and
  • 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 with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child; and
  • Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties.
If the court makes a finding that one of the parties has been a perpetrator of child abuse or neglect, then it shall not be in the best interests of the child to allocate mutual decision-making with respect to any issue.

If the court makes a finding that one of parties has been a perpetrator of domestic violence, then it shall not be in the best interests of the child to allocate mutual decision-making responsibility, unless the court finds that the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child

The court shall not consider conduct of a party that does not affect that party’s relationship to the child. In determining parenting time or decision-making responsibilities, the court shall not presume that any person is better able to serve the best interests of the child because of his/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/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 child care 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.

Legal Separation

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.

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