Travis Law Group | Family Law FAQs
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Family Law FAQs

Separation & Divorce
Do I need a divorce attorney?

It depends. If you and your spouse can amicably agree upon all the disputed issues and have the patience to correctly exchange all the required C.R.C.P. 16.2 discovery and can accurately complete and file all the required paperwork, then you may not need an attorney. Although it may be beneficial to hire an attorney simply to review what you have done. Anderson & Travis offers such services.

 

For those cases involving contested child support, parenting time, maintenance, property (particularly business valuations), this will require assistance of an attorney. Contested parenting time cases often involve experts and heated factual disputes. It is important to have an attorney that can guide you through the expert process and vigorously represent you during this very difficult time. Similarly, contested cases regarding maintenance (alimony) can be fact-intensive disputes over each party’s income, including whether one party is volunteering under-employed and should be imputed income (the court determines what income they should be able to earn). Travis Law Group has vast experience litigating these issues.

What is a legal separation?

Colorado law allows spouses to become legally separated. A legal separation will divide property and assets, establish spousal maintenance if necessary, determine any child support obligations, and develop a parenting plan as though the spouses were divorcing. However, a separation is different from dissolution in that the spouses remain legally married. This alternative is especially important for couples who are contemplating reconciliation and do not seek the finality of a divorce, are prohibited by their religion from divorcing, or are required to be married to establish or maintain a spouse’s eligibility for health insurance coverage, retirement pay, or military benefits. A legal separation can be converted to a divorce 6 months after a decree of legal separation is granted, or at a later time.

What is a separation agreement?

A separation agreement is a legal document that governs many aspects of the parties’ post-marital relationship. Parties may use the separation agreement to resolve a variety of issues, such as parenting children, division of marital property, child support, maintenance, and tax considerations. It can be very difficult to go back and change the terms of a separation agreement. So, before entering into a separation agreement, you should know your legal rights regarding child support, maintenance, property, and debts.

Because entering into a separation agreement is voluntary, its terms may obligate a person to more than the law would require or cause a person to waive certain rights. This consideration may be especially important with respect to maintenance, child support, and division of certain assets such as retirement benefits and military retired pay. It is critical to have an experienced Colorado attorney draft or review the separation agreement.

How is a separation agreement or a court order enforced?

In many cases, the failure to obey a separation agreement or a court order may be addressed by simply identifying the party’s difficulty with a particular condition and designing a strategy for his or her compliance. However, noncompliance may also be dealt with through a contempt citation, especially where a mutually-agreeable resolution is not possible.

The party seeking a contempt citation must demonstrate that the ex-spouse has knowledge of the order, willfully violated the order, and has the ability to comply with the order. Contempt remedies can be punitive or remedial. In other words, the court may enter a new order that requires some type of action by the offending party, order attorney fees, or impose a jail sentence and/or fine. The experienced Colorado attorneys at Travis Law Group can help you file or defend a contempt action.

Does Colorado recognize common law marriage?

Colorado is among the minority of states that recognize common law marriage. However, there is no specific time requirement that transforms cohabitation into a common law marriage. Instead, a common law marriage requires the mutual consent of the parties to enter a marital relationship, along with their open assumption of a life as husband and wife. Consequently, Colorado courts will consider the couple’s reputation in the community as “Mr. and Mrs.” and actions indicative of their status as husband and wife, i.e. filing joint tax returns or wearing wedding rings. There is a statutory age restriction that applies to common law marriages contracted after September 1, 2006. Under the law, both parties must be at least 18 years of age at the time of the common law marriage.

How is a common law marriage dissolved?

Once established, a common law marriage bestows the same rights and responsibilities on the spouses as traditional (statutory) marriage. If a couple is found to be common law married, they are treated in the same way as spouses with a statutory marriage. This means that while Colorado recognizes common law marriage, there is no such thing as a common law divorce. The dissolution procedure for a common law marriage is the same as for a statutory marriage. The Colorado Springs lawyers at Travis Law Group can assist you in this process.

Can the court award attorney fees from one divorcing spouse to the other?

Yes. A court may apportion the cost of attorney fees between the parties, requiring one to pay a reasonable amount of the other’s fees. The purpose of such an order is to place the parties on an equal financial footing with respect to the dissolution proceedings. Therefore, in deciding whether to award attorney fees, the court would consider the relative economic circumstances of the parties.

What jurisdictional requirements must I meet for a Colorado court to grant a divorce?

In general, the court must have personal and subject matter jurisdiction. In some cases, a spouse will claim that this requirement has not been satisfied and will challenge the court’s authority to proceed with the divorce action. The jurisdiction analysis can be fact-intensive and complicated, and it can significantly impact what authority the court has to enter orders regarding property, child support, maintenance, parenting time, etc. If the court does not have jurisdiction at the time that the petition for dissolution is filed, the court does not have the authority to enter any orders.

At least one spouse is required to be domiciled in Colorado for at least 91 days prior to filing a petition for dissolution of marriage for a court to grant a divorce. “Domicile” is a matter of intent; hence, neither physical presence in the state nor lack thereof is determinative. What matters to the court is the spouse’s intent to reside in Colorado. Therefore, in order to decide someone’s domicile, the court may consider factors such as being registered to vote in Colorado, paying taxes, obtaining or retaining a Colorado driver’s license or vehicle license plates, owning real estate in the state, and making representations to third persons about being a permanent resident of Colorado.

The other spouse must be provided adequate notice of the divorce. A spouse is provided adequate notice if he or she is personally served in Colorado with a summons and a copy of the petition for dissolution of marriage or waives service in writing. Out-of-state service may be sufficient depending on the person’s contacts with Colorado and his or her activities within the state. For instance, even if a spouse has left Colorado, the court may find that he or she maintains a matrimonial domicile in the state if the other spouse and children have not moved away. It is important to note that in cases where one of the spouses is not a Colorado resident, a Colorado court may lack authority to adjudicate all aspects of a dissolution proceeding. The experienced Colorado attorneys at Travis Law Group can help you determine whether Colorado is the appropriate jurisdiction to grant the divorce.

How long will the dissolution process take?

The particular circumstances of each case will dictate the amount of time it will take for a divorce to be granted. However, Colorado has a minimum “cooling off” or waiting period. The court will not enter a decree and finalize the divorce until 91 days has passed since the filing of the petition for dissolution of marriage. In the interim, the parties may seek short-term solutions regarding child support, maintenance, and parenting time through stipulated agreements or having the court issue temporary orders.

Can I get a divorce if my spouse cannot be located or is another state?

Yes. A Colorado court may obtain jurisdiction over an absent spouse by serving that spouse through publication. Moreover, experienced investigators may help locate an absent spouse. As an additional consideration, if a spouse is in another state, that state may have jurisdiction over dissolving the marriage as well. If the out-of-state spouse meets his or her state’s requirements for granting a divorce and decides to file a petition, additional issues arise with respect to which jurisdiction may proceed with the action. An experienced Colorado attorney can assist you in this process.

Does it matter who is at fault when seeking a divorce in Colorado?

No. Colorado is a “no-fault” state when it comes to dissolution of marriage. This means that the only basis necessary for a Colorado court to grant a divorce is the irretrievable breakdown of the marriage. In cases of domestic violence, it may be appropriate for the abused spouse to obtain a Temporary Protection Order (TPO). A TPO may later be made permanent or converted into a No Contact Order through the dissolution action. However, it is important to realize that the issuance of a restraining order may have serious consequences, especially with respect to parenting time considerations. An experienced Colorado attorney will be able to guide you through these issues.

Once I file for divorce, what stops my spouse from selling or concealing our assets, cancelling insurance policies, or taking other adverse actions?

Once service on the other party is accomplished, a temporary injunction will go into effect in order to preserve the status quo. The temporary injunction: (1) prevents either party from transferring, encumbering, or disposing marital property; (2) prevents either party from harassing or molesting the other party; (3) prevents either party from removing the minor children from the state without written permission of the other parent; and (4) prevents either party from cancelling, modifying, or withholding payment for insurance (health, home owners, renters, automobile, or life) without a 14-day advance notice and the written consent of the other party.

What type of financial documents must I provide during the dissolution process?

Colorado law requires the exchange of many documents during the dissolution process. That information includes tax returns, bank statements, credit card statements, tax returns, appraisals, insurance, and other financial documents. There are specific time requirements to disclose these financial documents. Failure to disclose the documents can lead to sanctions, including attorney’s fees. The experienced lawyers at Travis Law Group can help you collect and prepare the required financial documents.

What is marital property?

The classification of assets as either marital or separate property is an important step in property division. Marital property is, in general, all property acquired during the marriage. Marital property excludes property or assets owned prior to the marriage or acquired by gift or inheritance. There is a substantial body of law that assists in classifying assets. For instance, retirement benefits, but not social security, generally qualify as marital property and are subject to division. Moreover, any appreciation in value of separate property during the marriage is considered marital property. Therefore, a spouse may be entitled to a portion of the increase in value or income that is produced by an asset that is individually owned by the other spouse. Furthermore, complications may arise if a spouse’s separate property becomes so commingled over time with marital assets that its identity as separate property is jeopardized. An experienced Colorado attorney can help you determine what constitutes marital property in your case.

How are assets divided when spouses divorce?

Divorcing or separating spouses should seriously consider how the property accumulated throughout the marriage will be divided. They should also take into account the impact that this decision will have on their finances. For instance, instead of one house payment, a divorced or separated couple will have to make two, which will dilute their resources. An experienced Colorado attorney can help you examine these issues and guide you through the division process.

The preferred approach to dividing assets is for the spouses to come to an amicable agreement. However, such a resolution is not always possible. The court may give the parties some additional prodding by, for instance, mandating that the parties undergo mediation. Despite mediation, spouses may still disagree about the value of their assets, their fair division, or even whether an asset forms a part of the marital property.

If disputes continue, contested issues are litigated before the court. The court will strive to reach a fair and equitable, but not necessarily equal, division of the marital property. In order to do so, the court will consider factors such as the age and health of the parties, the contribution of each spouse to the acquisition of the assets (working outside or in the home), dissipation or misuse of marital assets by either party, the duration of the marriage, the specific sources of income of the parties, the value of the parties’ separate property, and the standard of living of the parties.

How will debts created during the marriage be divided?

All debts acquired during the marriage will be equitably divided between the parties. The equitable division is a fact-specific analysis. Sometimes the court will allocate a particular debt associated with a particular asset. For example, the loan associated with a vehicle may be allocated to the spouse receiving the vehicle. Whereas credit card debt could be allocated to the spouse who earns more income, or in some circumstances, who was responsible for the creation of the debt. The attorneys at Travis Law Group are experienced in litigating this issue.

How does the court determine the amount of maintenance (alimony)?

Maintenance, also known as alimony or spousal support, offers ongoing support to a former spouse following the dissolution of marriage or legal separation. Agreements between the parties regarding maintenance are subject to the court’s approval. If the parties cannot reach an agreement on the issue, the court may order that maintenance be paid. However, before addressing the need for maintenance, the court is required to have divided the divorcing couple’s property. A court may award maintenance only if a spouse lacks sufficient income and property to care for his or her reasonable needs and is unable to support him or herself through appropriate employment. In making the decision the court will take into account considerations such as the age, health, financial resources, employment prospects, and earning capacity of the party seeking maintenance, any child support awarded to the party seeking maintenance, along with the duration of the marriage, the standard of living established during the marriage, and the other party’s ability to make the payments. Marital misconduct of either party is not a factor. A maintenance obligation expires upon the death or remarriage of the recipient spouse, unless ordered otherwise. The experienced Colorado attorney at Travis Law Group can help you determine whether a maintenance award is appropriate in your divorce.

Once ordered, can maintenance be modified?

Yes, maintenance orders are subject to modification at a later time as long as certain conditions are met. An exception is the situation where the parties previously agreed in writing to limit or even preclude the modification of maintenance provisions. The party seeking modification must show a substantial and continuing change in circumstances that renders the initial award of maintenance unfair. The frugality of the maintenance recipient does not necessarily constitute proper basis for modification; however, the court may consider the recipient’s total living expenses including savings for emergencies, retirement, and replacement of automobiles or appliances. A different standard applies if the court previously reserved the right to review the maintenance provisions at a specific later time or upon the occurrence of an anticipated future contingency such as retirement or graduation. Under these circumstances, the order may be modified without the showing of unfairness. The same factors may apply as in the original maintenance determination. The experienced Colorado family lawyers at Anderson & Travis can help you determine whether a modification of maintenance is appropriate in your case.

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Custody & Child Support
How will time with minor children be divided between the parents when they divorce?

Divorce creates new living arrangements for divorcing spouses and their minor children which forces the parents to divide the time they spend with their children. Instead of using the terms “custody” or “visitation,” Colorado law refers to “parenting time.” While parenting time is first and foremost the child’s right, Colorado law recognizes the importance of both parents and encourages each parent’s frequent and continuous contact with their children. Each parent is entitled to parenting time unless it would physically or emotionally endanger their children.

Parenting time arrangements or parenting plans can be established by agreement of the parties. Where the parties cannot overcome their differences unassisted, they may pursue mediation. Mediation allows a neutral third party to facilitate negotiations in the hopes of reaching a mutually acceptable agreement.

If the parties submit a contested parenting time matter to the court, the judge will consider the children’s best interests in making parenting time determinations. The court, guided by a comprehensive set of rules, will take into account factors such as the desires of the parents and the children, the children’s integration into the community, the location of the parents, credible history of domestic abuse, the parents’ ability to place the children’s needs ahead of their own, and each parents’ ability to encourage love and affection for the other parent.

In order to establish a parenting plan, the court may seek the assistance of independent experts such as Child Family Investigators (CFIs) and/or Parental Responsibility Evaluators. Such experts may be appointed either by the court or at the agreement of the parties to render an opinion regarding the children’s best interests. The experienced Colorado family attorneys at Anderson & Travis can advise you on different parenting plans and help you determine which plan is the best for your situation.

Who will be able to make decisions regarding the children’s upbringing?

Divorcing parents need to consider how to allocate the decision-making authority regarding their child’s upbringing. The parents have to determine how they will make decisions about the child’s healthcare, education, religious training, or extracurricular activities. Parental decision-making may be allocated in several ways: parents may share this responsibility, one parent may have exclusive control, or parents may elect to exercise control over specific aspects of child-rearing. All agreements between divorcing spouses regarding children are subject to court approval. If parental decision-making comes before the court as a contested issue, the judge will enter orders based on the children’s best interests. The experienced family law attorneys at Travis Law Group can help you formulate a decision-making arrangement that suits your situation.

Can orders regarding parental responsibilities (parenting time and parental decision-making) be modified?

Orders regarding decision-making authority can be modified if the court finds any of the following: (1) the parties agree to the modification; (2) a modification of parenting time creates a need for a different decision-making arrangement; (3) with the other parent’s consent, the child has been integrated into the home of the parent seeking modification; or (4) a change in decision-making practice warrants modification, or the current arrangement endangers the children. In deciding the integration issue, the court will consider the totality of the circumstances. This means that the court will look at the frequency, duration, and quality of the children’s contact with each parent, the identity of the person making the decisions, and the children’s views regarding their attachment to each household.

A minor modification of parenting time may be made if the change would be in the children’s best interests. The best interest standard applies in cases where the parties share parental responsibilities equally and neither was awarded the majority of parenting time. However, the standard becomes much higher if a parent seeks a major parenting time modification. A major modification is one that would change the primary residential parent, awarding majority parenting time to the parent who originally had only minority parenting time. A party requesting to become the primary residential parent over the other party’s objection must demonstrate that the current parenting time arrangement endangers the child’s health or emotional development.

How is child support determined?

A child has the right to child support, and both parents have the duty to provide that support until emancipation. Colorado has established child support guidelines that determine the minimum amount of child support due in a given case. Child support and parenting time are separate issues. In other words, the resolution of one issue does not depend on the other. Rather, the formula that calculates the amount of child support takes into account the standard of living during the marriage, the age and needs of the child, gross income of both parents and child, and the amount of time the child spends overnight at each parent’s home. When calculating child support, the guidelines give credit for health insurance coverage and payment of daycare expenses. An experienced Colorado family law attorney can apply the guidelines to your situation and calculate the correct child support amount.

How are child support orders enforced?

Past-due child support is referred to as child support arrears or arrearages. The legal system takes non-payment of child support very seriously. Being found in contempt of violating a child support order may even result in punitive sanctions, including a jail sentence. Moreover, child support arrearage accrues interest.

There are several remedies available for collecting child support arrearages. Income assignment or garnishment provides an effective tool for recovering past-due payments plus any accumulated interest. A less common and more extreme alternative is the attachment of non-exempt property belonging to the child support provider, which gives the court control of the property. Moreover, the court may order the posting of a bond or other security in order to ensure payment. Travis Law Group’s experienced Colorado family law attorneys can help you assess your options for enforcing a valid child support order.

Can child support orders be modified?

Child support provisions are also always subject to modification by the court. The party seeking child support modification must demonstrate a substantial and continuing change in circumstances or that the existing order does not address medical support issues such as health insurance or uninsured medical expenses. The alleged change in circumstances is substantial and continuing only if the application of child support guidelines, codified in Colorado Revised Statutes § 14-10-115, results in at least a 10% difference (either an increase or a decrease) in the monthly amount of child support owed. An experienced Colorado attorney can guide you through the modification process.

What if a parent wants to relocate outside of Colorado with the children?

All relocation cases are decided based on the best interests of the child. There is neither a general presumption in favor of the child relocating with the primary residential parent nor one in favor of the child remaining in Colorado close to the other parent. Therefore, the court must consider the specific circumstances in each case and all of the relevant factors. The burden is on both parents to demonstrate that it is in the child’s best interests to either stay in Colorado or relocate. In order to modify, you can enter an agreement. If you don’t have an agreement, you can file a motion with the court. The court will then conduct a fact-specific inquiry at a contested hearing. The experienced family law attorneys at Travis Law Group can help you file or defend a motion for relocation.

Military Divorce
What special considerations apply to military divorce?

Although military couples who divorce are subject to Colorado law, a host of special considerations arise by virtue of one spouse serving in the Armed Forces. Laws such as the Service Members Civil Relief Act and the Uniformed Services Former Spouses’ Protection act may impact your situation. Moreover, the military lifestyle and demands placed on service members and their families may have legal implications. For example, the need to make PCS moves may bring up jurisdictional issues. Military members are also subject to deployment with little, if any, notice. Therefore, parenting plans should take into account this situation. Additionally, one of the most important benefits of military service is the retirement entitlement. Military retired pay is marital property and, as such, is subject to division. Division of military retired pay is complex and requires evaluation of the various compensation plans and qualified deductions for which the service member may be eligible, along with the applicable legislation and case law. In order to divide military retired pay, Colorado courts have devised a formula, known as Gallo. The Gallo formula divides the months of marriage by the months of military service, multiplied by .5 to calculate the division of military retired pay. The family law attorneys at Travis Law Group were former JAG officers who are familiar with the special circumstances that military divorces present.