Colorado Divorce Recovery

Child Custody

Colorado uses the 'best interests of the child'

basis for the purposes of determining child custody and parenting time. Colorado divorce laws provide that the parents can collaborate on a Custody Agreement and a Parenting Plan, and if they fail to agree in that effort, the Family Court will impose its own plan. In approving a Custody Agreement or Parenting Plan, or imposing its own, the Court will consider all relevant factors, including:

• The wishes of the child’s parents as to parenting time,
• The wishes of the child if he or she is sufficiently mature to cognitively express preferences as to the Parenting Time Agreement,
• The relationship 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. A disability alone will not impact negatively impact a decision by the courts when awarding custody unless there is good reason to restrict or deny it,
• The ability of the parties to foster a loving affectionate relationship between the child and the love of other parent
• Where each parent resides and how that might impact an ability to parent the child,
• If one of the parties has been a perpetrator of spouse abuse. If the court makes a finding of fact that one of the parties has been a perpetrator of spouse abuse, then joint custody over the objection of the other party shall not be in the best interests of the child, 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 capability of each party to place the needs of the child ahead of his or her own needs. In Colorado, as with all other states, the court will always be looking out for the best interests of the children.

If you and your soon-to-be ex are divorcing, and you have children together, the court will order an acceptable Parenting Plan be a part of your overall divorce agreement. You (both) have an opportunity to create and agree to your own Parenting Plan. Should that effort fail, the court will order portions of the agreement plan with little or no discussion from you. You should make every effort to come up with your own plan (use a Parenting Plan Template) so that you don't get stuck with a parenting plan you are unhappy or unsatisfied with. 

Petition or motion to the court for a substantial modification of parenting time

When a petition for a substantial modification of parenting time is placed, which also changes the party with whom the child resides a majority of the time and substantially changes the geographical ties between the child and the other party, the court will decide the motion on its merits, no subsequent motion may be filed within two years after disposition of the prior motion. This suggests that if you try to get custody from the other parent and fail, you cannot attempt again for 2 years.

 

 

Download Colorado Divorce Forms

[Colorado Statutes - Article 10 - Sections: 14-20-123, 14-20-124, 14-20-129]

Marriage Annulment - Marital Annulment

A request for an annulment must be treated in the same fashion as with a divorce. If the Petition for Divorce or Marriage Annulment is contested, in other words the person responding to the petition challenges material information in the petition by filing an answer, the matter will automatically be scheduled for a hearing. If the person responding to the petition does not file an answer within 20 days of receiving either the Petition for Divorce or Marital Annulment, or if that person files an answer agreeing with the petition for a divorce, the petition is uncontested.

If the petition is uncontested the Petitioner ( the person filing the petition), can choose what type of divorce proceeding he/she would like to have. The Petitioner may request that the Court decide the Petition for Divorce or Marital Annulment based solely on the papers that are filed by both sides, without the parties appearing in Court for a hearing; OR The Petitioner may choose to have the Court decide the Petition for Divorce/Annulment after holding a hearing which the Petitioner must attend and the Respondent may attend. Grounds for a Colorado marriage annulment include:

• Fraud or Duress - If any force, pressure or duress was used to compel you to marry, you may petition the court for an annulment,
• Underage Marriage - A marriage where one or both parties were under 16 years old qualifies as an annulment ground,
• Bigamy - Where a person is already married and enters into another marriage with someone else. Colorado annulment laws declare bigamy as a legal ground for annulment,
• Misrepresentation - The marriage took place under false pretenses permits a party to claim annulment according to the Colorado annulment laws,
• Incest or Consanguinity - A marriage will receive an annulment if a party married a relative too closely related by blood,
• Physical or Mental Incapacity - If it were present at the marriage and it continues, an annulment may be granted, and
• Lack of Consent - Where a party was intellectually or emotionally incapable of understanding their actions is a legitimate annulment ground.

 

 

[Colorado Statutes - Article 10 - Sections: 14-10-111]

Child Support

The laws on Colorado child support were last revised on January 1, 2003. CO child support is calculated using a mathematical formula.

If either of the litigant's monthly adjusted gross income, or their combined monthly adjusted gross income is less than $850, a minimum order of $50 is implied. If the parent with the fewer overnights per year earns $850 or more, but no more than $1,850 per month, he or she is eligible for a low income>adjustment. The parent pays a basic minimum amount, depending on the number of children, and pays an additional 40% of every dollar between $900 and $1,850 of monthly income. If the low income adjustment results in a child support award that exceeds the amount in the schedule, the schedule amount should be entered.

Any child support payment regimen for children under age 19 and still in high school, or are disabled, is guided by different formulas depending upon the number of overnights the child spends with each parent. Colorado child support ends once the child reaches age 19 unless a court extends it due to unusual circumstances.

The courts apply the “best interests of the child” principal when deciding who gets custody without regard to the sex of the parent. Income is defined as:

• income from salaries,
• wages, including tips,
• commissions,
• payments received as an independent contractor for labor or services;
• bonuses;
• dividends;
• severance pay;
• pensions and retirement benefits; royalties;
• rents;
• interest;
• trust income;
• annuities;
• capital gains;
• any monies drawn by a self-employed individual for personal use;
• social security benefits;
• workers’ compensation benefits;
• unemployment insurance benefits;
• disability insurance benefits;
• funds held in or payable from any health, accident, disability, or casualty insurance;
• monetary gifts;
• monetary prizes, excluding lottery winnings;
• taxable distributions from general partnerships, limited partnerships, closely held corporations, or limited liability companies;
• alimony or maintenance received; and overtime pay only if the overtime is required by the employer as a condition of the employment.

If a modification of an existing CO child support order is requested, the amount of each parent’s court-ordered contribution for post-secondary education for a child should be subtracted from each parent’s gross income.

 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

Amounts paid by parties for health insurance premiums which cover the child(ren) subject to the order are apportioned between the parties. Colorado child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact:

• The desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent;
• The wishes of the parents;
• The child’s adjustment to his or her home, school, and community;
• The mental and physical health of all individuals involved;
• The relationship of the child with parents, siblings, and other significant family members;
• Any child abuse or spouse abuse by either parent;
• Whether a parent’s past involvement with the child reflects a system of values, time commitment, and mutual support;
• The physical proximity of the parties to each other;
• The ability of each party to place the needs of the child ahead of his or her own needs. Visitation may be restricted if there is a danger to the child.

If you and your soon-to-be-ex are divorcing, and you have children together, the court will order an acceptable Parenting Plan be a part of your overall divorce agreement. You (both) have an opportunity to create and agree to your own Parenting Plan. Should that effort fail, the court will order portions of the agreement plan with little or no discussion from you. You should make every effort to come up with your own plan (use a Parenting Plan Template) so that you don't get stuck with a parenting plan you are unhappy or unsatisfied with. 

 

 

Download Colorado Divorce Forms

[Colorado Statutes - Article 10 - Sections: 14-10-115, 14-10-117]

Do-It-Yourself Divorce

Experts will generally tell you that most people should get the guidance of a divorce attorney if there are children from the marriage and/or there are assets to be divided. That having been said, here's how to file divorce papers for a dissolution:

Colorado family law makes the divorce process in this state a purely no-fault filing, meaning the court will not assign fault to either party for the divorce. The sole issue is whether or not the marriage is irretrievably broken.

Issues such as adultery or abuse are separate from the petition for divorce, and can very well impact the outcome when settling other issues such as custody or spousal support.

If you decide to complete the divorce papers yourself, you must print them on bonded, acid-free paper. You must satisfy residency requirements to file for a CO divorce [you have lived in the State of Colorado for at least ninety days immediately prior to the start of the action for divorce. The petition must be filed in the county where either party resides].

How much does it cost?

Court filing fees are, at the time of this writing (5/2009), $195.00. You must carefully complete the forms with instructions, get all necessary signatures, and then take the paperwork with your fee to your local Court Clerk's office.

Are these filings fees paid up front?

Yes, the $99.00 must be paid at the time of filing. Filing a response costs $95.00. A hardship waiver of the filing fee may be available if you qualify. You must complete and file a Motion to File without Payment and Supporting Financial Affidavit (JDF 205) for fee waiver.

What forms will you need?

• Case Information (JDF 1000)
• Petition for Dissolution of Marriage or Legal Separation (JDF 1101)
• Summons for Dissolution of Marriage or Legal Separation (JDF 1102)- use this form only if the filing isn't done jointly
• Certificate of Compliance (JDF 1104) - each need to complete this form on their own,
• For couples with children: Parenting Plan (1113)

More forms (if applicable):

• Sworn Financial Statement (JDF 1111) - both must sign in front of a notary,
• Divorce Settlement Agreement - this form settles all matters including division of property, assets, debts and liabilities, and settles matters of child support, child custody and visitation,
• Affidavit for Decree without Appearance (1201) - both must sign in front of a notary,
• Pretrial Statement (JDF 1129) - use this form only if you have one or more disagreements marked on your Separation Agreement Form.
• Response to the Petition for Dissolution of Marriage or Legal Separation (if your spouse filed),
• Separation Agreement.

What are the steps?

Make three copies of each form, leave one copy home, and bring the original divorce papers and the copies to the Clerk's office. If you are filing for a divorce with no disputes, and you've completed all paperwork properly, the Clerk will accept your divorce papers and fee, and indicate when you will be notified that the divorce is final. If there are disputes a hearing will be arranged, and you will attempt to iron out differences there. Otherwise the court will notify you 4-8 weeks later that you are divorced.

A word on the Settlement Agreement:

If there is a place where the process gets bogged down, it is in resolving marital settlement (asset) issues. They must be resolved and agreed upon to move your DIY filing to a successful conclusion (without legal fees). The issues are:

• Equitable Distribution of Assets,
• Equitable Distribution of Liabilities,
• A parenting or co-Parenting Plan,
• What the Visitation Agreement will be,
• Child Support,
• Spousal Support (Alimony)

Download Colorado Divorce Forms

 

 

See our discussion on Do-It-Yourself Divorce

Legal Separation - Marital Separation

Before you file for divorce, you and your spouse must have completed a legal separation. Under the divorce laws, a legal or marital separation gets effected when you and your spouse no longer share the same bedroom or have sexual relations with one another, except for attempts at reconciliation. You can still be separated if you live in the same house so long as you do not share the same bedroom with your spouse or have sexual relations with your spouse.

The Court will not proceed with the divorce process until you and your spouse have concluded a separation of at least 6 months unless you are filing for divorce on the grounds of misconduct. Grounds of misconduct include: physical, mental or psychological abuse, adultery and desertion. If you are filing on the grounds of misconduct, then you do not have to be separated for any specified period of time. However, be aware that you must prove any allegations of misconduct by presenting evidence of the misconduct to the Court before a divorce will be granted on this ground. If one party petitions for a separation rather than a dissolution (divorce), the court will likely grant the separation.

 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

Also, if you and your spouse have children together, you must attend a Parent Education Class. If your children are between the ages of 8 and 16, they must also attend the Parent Education Class. The Court will not proceed with the divorce process until all of the required certificates of completion from the Parent Education Class have been submitted to the Court. If you have children, you should enroll in the Parent Education Classes early to ensure that the divorce process is not delayed because of your failure to take the Parent Education Class. After the filing of a petition for divorce or annulment (which must include grounds), a preliminary injunction will be issued against both parties to the action, prohibiting them from:

• Transferring or concealing any property except in the usual course of business or for the necessities of life,
• Molesting or disturbing the peace of the other party,
• Removing a child of the parties if residing in Colorado from the jurisdiction of this court without the prior written consent. of the parties,
• Utilizing credit cards or otherwise incurring any debt for which the other party is or may be liable except in connection with the marital litigation or necessities of life for the benefit of the party or the parties' minor children.

 

The court can be bound by your Separation Agreement

If you and your spouse have come to an agreement on all issues, and submit a Separation Agreement, the terms are binding on the court. This does not apply to details surrounding the allocation of parental responsibilities, support, and parenting time of children.

[Colorado Statutes - Article 10 - Sections: 14-10-112]

Divorce Settlement - Dividing marital assets

You will have an opportunity to arrive at a divorce settlement with your spouse. Should you be unable to, the court will impose its judgment based on the concept of equitable distribution. Colorado divorce laws mandate that the court will equitably divide, distribute and assign the marital property between the parties without any regard to marital misconduct. Colorado code specifies what considerations the court may include:

• The length of the marriage,
• Any prior marriages,
• The age, health, station, amount and sources of income,
  vocational skills, employability, estate, liabilities and needs of each of the parties,
• Whether the property award is in lieu of or in addition to alimony,
• The opportunity of each for future acquisitions of capital assets and income,
• The contribution or dissipation of marital property, including the contribution of a party as homemaker, husband, or wife,
• The value of the property set apart to each party,
• The economic circumstances of each party,
• Whether the property was acquired by gift; and
• The debts of the parties; and Tax Consequences.

Defining marital property

• 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,
• Property excluded by valid agreement of the parties.

Did you come into this marriage owning a house? Concerned about the equity in that house that you brought into the marriage? Worried a divorce settlement will take away what was originally yours? Here's how it works generally. What you brought into the marriage is usually all yours. However, any appreciation of the house or the property value is normally treated as a "marital asset", meaning that you will likely have to give up a half of that appreciation to your spouse in the divorce.

[Colorado Statutes - Article 10 - Sections: 14-20-113]

Alimony - Spousal Support - Maintenance

The Court may award temporary alimony to a dependent party during the course of an action for divorce or annulment. The party may be awarded alimony (sometimes referred to as spousal support or maintenance) only if he or she is a dependent party after consideration of the following:

• Is dependent upon the other party for support and the other party is not contractually or otherwise obligated to provide that support after the entry of a decree of divorce or annulment,
• Lacks sufficient property, including any award of marital property made by the Court, to provide for his or her reasonable needs; and
• Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that he or she not be required to seek employment.

 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

The alimony order may be granted without regard to marital misconduct. The court will consider the following:

• The financial resources of the party,
• The time necessary and expense required to acquire sufficient education or training,
• The standard of living established during the marriage,
• The length of the marriage,
• The age, physical and emotional condition of both parties,
• Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party,
• The ability of the other party to meet his or her needs while paying alimony,
• Tax consequences,
• Any foregone or postponed economic, education or other employment opportunities during the course of the marriage; and
• Any other factor which the Court expressly finds is just and appropriate to consider.

 

A person can be eligible for alimony not to exceed 50% of the term of the marriage with the exception that if a party is married for 20 years or longer, there will be no time limit as to his or her eligibility. Should one of the parties waive or release his or her right to alimony (in writing), they will be unable to regain that right. Death terminates the obligation to pay alimony unless otherwise agreed. Remarriage or cohabitation also terminates alimony obligations.

[Colorado Statutes - Article 10 - Sections: 14-10-114, 14-10-117]

Visitation - Kids going between two homes

Under Colorado divorce laws, parents are joint natural custodians of their children. When parents live separate and apart, either or both parents may file a petition in Family Court asking that the court award custody to him/her and child visitation to the other parent. The most direct path is to to draw up a Parenting Plan and a Custody Agreement, both agree to them, and submit them to the court with a Petition for Visitation (form #350) and/or a Petition for Custody (form #345), or Petition for Visitation (form #350) is filed in Family Court, a Preliminary Injunction is served immediately on the petitioner and on the respondent with service of the petition. This Preliminary Injunction contains two orders:

• Neither parent will permanently remove the child from the State of Delaware while the custody or visitation proceedings are pending in the Court without the permission of the other parent or the Court,
• Both parents are ordered to take a “Parenting Education Class”.

At the mediation hearing, the mediator will assist the parents in coming to an agreement or will help to resolve the parenting time issues which the parents cannot agree upon. The mediator will inform both of the parties of the language and content of the Standard Visitation Guidelines used by the Court. If the parents are able to come to an agreement on a Child Visitation Schedule, a consent order will be completed and signed by the parents. If the parents are not able to come to a full parenting agreement on the petition and cannot agree on a temporary visitation schedule for the child, the mediator will recommend a contact schedule which will be in place until the Court hearing.

If mediation is not successful, the petitioner must complete Parenting Education and the petition will then be assigned to a Judge for a full hearing at a later date. After an order for custody or visitation has been entered, if either parent files a Motion and Affidavit to Modify Custody or a Petition for Visitation Modification, the petition will again be referred to mediation (unless bypassed because of a finding of domestic violence or no contact order). If no agreement is reached at mediation, CO code dictates that the petition would be referred to a Judge after the petitioner has completed the Parenting Education Class (if not previously completed).

Moving the child out of the area and away from the other parent

If the parent with whom the child spends the majority of time wishes to move the child to a residence that substantially changes the geographical ties between the child and the other party, that parent must notify the other parent of his or her intent to relocate, the location where the party intends to reside, the reason for the relocation, and a proposed revised parenting time plan. Notice must be by written notice as soon as practicable. The parent who will suffer from the child's relocation may petition the court to block such a move.

 

 

Not complying with the Visitation schedule ordered by the court

A party may make motion to the court alleging that the custodial party is not complying with a parenting time order or schedule. The court will determine (from the presentation of facts) within 30 days whether or not there has been substantial or continuing noncompliance. If the court finds evidence that the motion has merit, it can:

• Schedule a hearing and notify both parties as to the location, time and date of the hearing, or
• Require the parties to seek mediation and report back to the court on the results of the mediation within sixty days.

Should the court find in favor of the complaining party, it can:

• impose additional terms and conditions,
• require either parent or both parents to attend a parental education program,
• require the parties to participate in family counseling,
• order the violator to post bond or security to insure future compliance,
• order that makeup parenting time be provided.

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Be aware that you have to guide your side of the divorce. Try to get your spouse to agree on as much as is possible. Use a Parenting Plan Template. Don't rely that your attorney will think of everything. You set the course; your lawyer navigates. If you need divorce forms, see our Legal Forms Section. 

[Colorado Statutes - Article 10 - Sections: 14-10-123, 14-13-304]

Grounds for divorce

The court will grant a divorce whenever it finds that the marriage is irretrievably broken and that reconciliation is improbable. Colorado code defines 'irretrievably broken' when the relationship is characterized by:

• Voluntary separation, or
• Separation caused by respondent's misconduct, or
• Separation caused by respondent's mental illness, or
• Separation caused by incompatibility.

After the filing of a petition for divorce or annulment (which must include grounds), a preliminary injunction will be issued against both parties to the action, prohibiting them from:

• Transferring or concealing any property except in the usual course of business or for the  necessities of life,
• Molesting or disturbing the peace of the other party,
• Removing a child of the parties if residing in Colorado from the jurisdiction of this court without the prior written consent of the parties,
• Utilizing credit cards or otherwise incurring any debt for which the other party is or may be liable except in connection with the marital litigation or necessities of life for the benefit of the party or the parties' minor children.

 

[Colorado Statutes - Article 10 - Sections: 14-10-106]

Residency - You must be a legal resident

At least one of the parties to the action for divorce must have established residency within the State of Colorado for at least (90) ninety days immediately prior to the start of the action for divorce. The petition may be filed in the county where either party resides.

 

 

 

[Colorado Statutes - Article 10 - Sections: 14-10-106]

Mediation - Using a Mediator to resolve disputes

In cases involving minor children of the marriage, the court will order that the parties participate in a Parenting Education Course designed to educate the parties on the impact of divorce on children. The court may order mediation if it appears that mediation will be helpful. The court may also extend the proceeding for up to sixty days should the parties wish to seek marriage counseling.   

Costs of the counseling and/or mediation will be borne by both or either party. The court may require the parents to attend parent education classes, and require them to be informed about how to prepare a parenting plan, what impact a family dissolution can have on children, the impact of domestic abuse on children, and any procedures that may help them arrive at an agreement.

If parents are unable to resolve issues and unable to agree to a parenting plan, the court may require mediation, unless mediation is determined inappropriate in the particular case.

 

 

[Colorado Statutes - Article 10 - Sections: 14-10-110 and 14-10-123.7]

Grandparents Visitation

Grandparents may petition the court for visitation before, during or after a divorce proceeding. The courts will use "best interests of the child" when considering:

• The wishes of the parents and the child,
• The relationship of the child with parents, siblings, and other significant persons,
• The child’s adjustment to home, school and community, and
• The mental and physical health of all persons involved. Should an adoption occur, all rights terminate.

 

 

 

 

[Colorado Statutes - Article 19 - Section: 19-1-117]

Waiting Period

90 days from filing must have elapsed before a divorce may be granted. Colorado code mandates this length of time to allow for reconciliation to take place if it is possible, and to avoid regrets from an emotionally hasty divorce. No restrictions on remarriage exist once the final decree has been entered.

 

 

 

[Colorado Statutes - Article 10 - Sections: 14-10-106]