Colorado Divorce Procedures

Colorado Divorce Procedures

Complete overview of Colorado divorce laws for people considering a Colorado divorce or filing a Colorado divorce with issues to be resolved about child custody, child support, visitation and alimony.

Colorado State Divorce Residency Requirements

In order to file your Petition for Dissolution of Marriage in Colorado, you must make sure the District Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Colorado residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

The district court shall enter a decree of dissolution of marriage when: The court finds that one of the parties has been domiciled in this state for ninety days next preceding the commencement of the proceeding.

The dissolution of marriage may be filed in the county in which the pretitioner or respondent reside.

(Colorado Statutes – Article 10 – Sections: 14-10-106)

Since dissolution of marriage is governed by state law, it is required that you meet specific residency requirements in order to file for a dissolution of marriage in the state of Colorado. It is most common that people file for a dissolution of marriage in the county in which they live. If you are unsure of whether or not you meet the Colorado residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

Colorado Grounds for Divorce

The Petition for Dissolution of Marriage is the initial document filed with the Colorado court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

The only grounds for dissolution of marriage in Colorado is based on the court finding that the marriage is irretrievably broken. This means that the marital relationship is no longer able to continue due to marital discord and/or marital conflict.

(Colorado Statutes – Article 10 – Sections: 14-10-106)

Every dissolution of marriage case that is filed in the state of Colorado must declare the grounds in which the dissolution of marriage is to be granted. The grounds for dissolution of marriage must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a dissolution of marriage, or agreeing to a dissolution of marriage, make sure that you completely understand the grounds and any potential legal repercussions.

Colorado Uncontested Divorce

This information is an overview of the uncontested Colorado divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Colorado.

Colorado is a No-Fault state. Irretrievable breakdown is the only ground for divorce. In a divorce action, the spouse initiating the action is called the Petitioner; the spouse responding is called the Respondent. The actions are filed in the county court.

To file for divorce in Colorado, a person must have lived there for at least 90 days prior to filing. The divorce may be filed in 1) the county where the Respondent lives, 2) the county where the Petitioner lives if the Respondent has lived in the same county or is a non-resident of Colorado.

Here are the forms used in filing for a divorce:

a) The Petition, which can be filed singly or jointly. There is a form for marriages with children and for those without children.
b) The Case Information Sheet, which is required in many counties. This form summarizes the facts of the case.
c) The Summons, which is required only if the two spouses are not filing jointly.

The Summons gives the Respondent notice of his or her rights, and it gives him or her 20 days to respond or 30 days if the party is outside of Colorado. The Summons also contains a temporary injunction against dissipating assets.

* The Waiver and Acceptance of Service, which is used when the Respondent agrees to accept the Petition without formal notification — a Summons. It also certifies that the Respondent is not entitled to any protections from the Servicemembers Civil Relief Act.

When a Respondent signs the Waiver and Acceptance of Service, he or she agrees to an uncontested divorce. Signing the Waiver preserves his or her rights and positions the action for a default.

* The Petitioner’s Verified Motion and Order for Publication, which is used when the Petitioner does not know the whereabouts of the Respondent.

The Petitioner’s Verified Motion and Order for Publication is used when the Respondent cannot or will not be located. A missing spouse who cannot or will not be located can also move along the default route, but only after good faith efforts have been made to locate him or her.

* The Response, which is used only when the Respondent files an answer to the Petition.

This is used by the Respondent when he or she contests the divorce. He or she may assert that the marriage is not irretrievably broken and that the parties should seek counseling. The course of a contested divorce is impossible to chart because both spouses often negotiate even as they are preparing for trial.

If a couple file jointly, this form is not used because the couple have already agreed at least the divorce and often the terms and conditions of the settlement.

a) Notice to Set, which is used in some counties to notify the other spouse of hearing date and status conference on the divorce action.
b) Notice of Domestic Relations Initial Status Conference, which is required in most counties if a domestic relations conference of the parties is held.
c) Temporary Order Agreement and Temporary Order Forms, which may be used if interim arrangements about spousal and child support and financial affairs are required.

At some point, the parties file

a) A Sworn Financial Statement, which is filed by each spouse. This Statement profiles the finances of the parties — their income and expenses, their separate and joint assets and liabilities.
b) A Certificate of Compliance with Mandatory Financial Disclosures, which each spouse signs attesting that he or she has complied with the mandatory financial disclosures.

If the couple agree (or negotiate their way to an agreement), they can avail themselves of the simplified divorce. Colorado permits a simplified divorce when

a) there are no minor children, the wife is not pregnant, or both spouses are represented by counsel and have entered into a separation agreement and decided custody and child support;
b) there are no disputes;
c) there is no marital property or the spouses have agreed on the division of marital property;
d) the Respondent has been served with the divorce papers;
e) a signed affidavit of facts and a separation agreement has been filed with the petition.

In this event, the couple prepare an Affidavit for Decree without Appearance of Parties, there is no hearing in the action that ends the marriage.

Regardless of whether the couple avail themselves of the simplified route or whether their case requires a hearing, the following papers and forms must be prepared and signed at some point in the course of the action:

a) A Decree, which is the instrument that ends the marriage;
b) A Separation Agreement, which is incorporated by reference in the Decree;
c) A Qualified Domestic Relations Order (QDRO), which is the instrument by which certain interests in retirement plans are transferred from one spouse to the other as part of property settlements;
d) Notice to Set and Notice of Hearing, which may be required to inform a Respondent of a final divorce hearing.

Moreover, if one spouse pays support to the other and/or the couple have children, the following forms may also have to be filed:

a) Worksheet A – Child Support Obligation: Sole Physical Custody, which is if the minor children spend less than a quarter of the overnight stays with the other parent.
b) Worksheet B – Child Support Obligation: Shared Physical Custody, which is required when both parents share custody; that is, 93 or more overnights with the other parent.
c) Support Order, which is used when one spouse pays the other spousal support or maintenance.
d) Parenting Plan, which is incorporated in the separation agreement. The Parenting Plan spells out the terms and conditions of custody and visitation.
e) Notice to Withhold Income for Support, which is used in cases where income and/or child support is assigned to the recipient and conveyed by a third party.
f) Notice to Employer to Deduct for Health Insurance, which is used to insure that health insurance for children is maintained.
g) Notice to Insurance Provider of Court-ordered Health Insurance Coverage, which may be used if the agreement provides that a parent provide for insurance if he or she is not currently covered.

When a spouse cannot or will not be located, the Petitioner must file for a Constructive Service. If this is the case, the Petitioner must file Petitioner’s Verified Motion and Order for Publication. Constructive Service can be done in one of three ways:

* Certified Mail, which means that Petitioner sends the Petition and Summons to the last known address.
If the service is successful, the 90-day waiting period begins after the return of the receipt.

If this fails, the Petitioner may take one of the following steps:

a) Publication by Consolidated Notice, which means that the action is listed in a group notice with other similar actions.
b) Publication of Summons, which means that the Summons is published in a local newspaper for five times at one week intervals.

In both cases, the 90-day period begins after the last date of publication.

Publication of Summons enables the Petitioner to take title to in-state titled property.

Colorado Simplified Divorce Procedures

A dissolution of marriage may be obtained by affidavit of either or both of the spouses if:

a) there are no minor children and the wife is not pregnant or both spouses are represented by counsel and have entered into a separation agreement granting custody and child support;

b) there are no disputes;

c) there is no marital property or the spouses have agreed on the division of marital property; and

d) the adverse party (non-filing spouse) has been served with the dissolution of marriage papers. A signed affidavit stating the facts in the case must be filed with the petition.

[Colorado Revised Statutes; Article 10, Section 14-10-120.3].

Each state has its own unique filing procedure. When filing for dissolution of marriage in Colorado, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory dissolution of marriage documents to the county court. You will discover that some documents may be provided by the Colorado Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Colorado Laws and the filing requirements.

Colorado Property Division Factors

In Colorado, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the District Court within the Decree of Dissolution of Marriage.

Colorado is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the District Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the District Court to be fair.

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

a) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
b) The value of the property given to each spouse in the property award;
c) 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 therein for reasonable periods to the spouse with whom any children reside the majority of the time; and
d) 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.

(Colorado Revised Statutes; Article 10, Section 14-10-113).

Since Colorado is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

Colorado Spousal Support/Maintenance/Alimony Factors

In Colorado the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the District Court will order support from one spouse to the other on a case-by-case basis as follows:

Without regard to marital misconduct, the court will consider all relevant factors when making an award including, but not limited to:

a) The financial status of the party seeking maintenance;
b) The time necessary to gain employment or establish earning capacity;
c) The standard of living enjoyed during the marriage;
d) The duration of the marriage;
e) The age and the health condition of the spouse seeking maintenance; and
f) The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.

(Colorado Statutes – Article 10 – Sections: 14-10-114, 14-10-117)

Colorado Child Custody Factors

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

a) The wishes of the child’s parents as to parenting time;

b) The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;

c) 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;

d) The child’s adjustment to his or her home, school, and community;

e) The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;

f) The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;

g) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;

h) The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;

i) Whether one of the parties has been a perpetrator of child abuse or neglect under section 18-6-401, C.R.S., or under the law of any state, which factor shall be supported by credible evidence;

j) Whether one of the parties has been a perpetrator of spouse abuse which factor shall be supported by credible evidence;

k) The ability of each party to place the needs of the child ahead of his or her own needs.

(Colorado Statutes – Article 10 – Sections: 14-20-123, 14-20-124, 14-20-129)

In Colorado, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Colorado Child Support Factors

The court may order reasonable and necessary child support to be paid by either or both parents, without regard to marital fault, after considering the following factors:

a) the financial resources of the child;
b) the financial resources of the custodial parents;
c) the standard of living the child would have enjoyed if the marriage had not been dissolved;
d) the physical and emotional conditions and educational needs of the child; and
e) the financial resources, needs, and obligations of both the noncustodial and the custodial parent.

Provisions for medical insurance and medical care for any children may be ordered to be provided. There are specific child support guidelines specified in the statute. In addition, standardized child support guideline forms are available from the Clerk of any District Court. Child support payments may be ordered to be paid through the Clerk of the Court. Child support must continue through high school graduation, unless certain factors are met.

[Colorado Revised Statutes; Article 10, Sections 14-10-115 and 14-10-117].

Colorado child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Colorado child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Colorado child support deviation factors that may be applicable to the situation.

Colorado Grandparent’s Rights

Grandparent Rights to Visitation: Parents’marriage has been declared invalid or dissolved, or court order of legal separation entered, legal custody of the child given to a third party or child placed outside home of either parent (except for children who have been adopted or placed for adoption), or the grandparent must be the parent of the child’s parent who has died. Title 19, Article 1, Section 19-1-117 (C.R.S.A. §19-1-117 et seq.). Additional affidavit required.

When Adoption Occurs: Grandparent visitation rights automatically terminate upon completion of adoption by anyone other than a stepparent.

Child Custody Statutes: Best interest of the child considering:

a) parties’wishes;
b) child’s wishes;
c) interaction and interrelationship between child and parties, siblings and other significant persons;
d) child’s adjustment to home, school and community;
e) mental and physical health of all persons involved;
f) custodian’s ability to encourage sharing, love, affection and contact with the other party;
g) evidence of parties ability to cooperate and make joint decisions;
h) evidence of each party’s ability to encourage sharing, love, affection and contact with other party;
i) any history of abuse or neglect;
j) any history of spouse abuse; and
k) various other factors relating to joint custody. C.R.S.A. § 14-10-123 et seq.

Parents May Choose: No

Colorado Military Divorce Laws

A Colorado military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Colorado Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Colorado court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Colorado court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in Colorado
b) You or your spouse must be stationed in Colorado

Grounds for Colorado Military Divorce

The grounds for a military divorce in Colorado are the same as a civilian divorce.

Dividing the Property

Along with the normal Colorado property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Colorado, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Colorado child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Colorado Child Support Guidelines

The Colorado child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Colorado child support order.

Colorado Child Support Guidelines

> Income Share Model: YES
> Percent of Income Model: NO
> Worksheets Available: YES
> Extraordinary Medical Expenses Add on: NO
> Childcare Add on: YES
> Secondary Education Support: YES
> UIFSA: YES

* The Income Shares Model: 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. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Colorado child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.

For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.

As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.

For example: It is not common for a custodial parent to be paying support to a non-custodial parent.

Colorado Child Support Definitions

DEFINITIONS:

Income means actual gross income of a parent, if employed to full capacity, or potential income, if unemployed or underemployed.

A) “Gross income” includes income from any source and includes, but is not limited to, income from salaries; wages, including tips declared by the individual for purposes of reporting to the federal internal revenue service or tips imputed to bring the employee’s gross earnings to the minimum wage for the number of hours worked, whichever is greater; commissions; payments received as an independent contractor for labor or services; bonuses; dividends; severance pay; pensions and retirement benefits, including but not limited to those paid pursuant to article 64 of title 22, C.R.S., articles 51, 54, 54.5, 54.6, and 54.7 of title 24, C.R.S., article 30 of title 31, C.R.S., and section 35-65-402 (2), C.R.S.; royalties; rents; interest; trust income; annuities; capital gains; any moneys drawn by a self-employed individual for personal use; social security benefits, including social security benefits actually received by a parent as a result of the disability of that parent or as the result of the death of the minor child’s stepparent, but not including social security benefits received by a minor child or on behalf of a minor child as a result of the death or disability of a stepparent of the child; workers’ compensation benefits; unemployment insurance benefits; disability insurance benefits; funds held in or payable from any health, accident, disability, or casualty insurance to the extent that such insurance replaces wages or provides income in lieu of wages; monetary gifts; monetary prizes, excluding lottery winnings not required by the rules of the Colorado lottery commission to be paid only at the lottery office; taxable distributions from general partnerships, limited partnerships, closely held corporations, or limited liability companies; and alimony or maintenance received. “Gross income” does not include child support payments received.

B) “Gross income” does not include benefits received from means-tested public assistance programs, including but not limited to assistance provided under the Colorado works program, as described in part 7 of article 2 of title 26, C.R.S., supplemental security income, food stamps, and general assistance.

C) “Gross income” includes overtime pay only if the overtime is required by the employer as a condition of employment. “Gross income” does not include income from additional jobs that result in the employment of the obligor more than forty hours per week or more than what would otherwise be considered to be full-time employment.

D) For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, “gross income” means gross receipts minus ordinary and necessary expenses required to produce such income.

E) “Ordinary and necessary expenses” does not include amounts allowable by the internal revenue service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

F) Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business shall be counted as income if they are significant and reduce personal living expenses.

G) If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income; except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a child under the age of thirty months for whom the parents owe a joint legal responsibility.

Colorado Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Colorado Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Petitioner

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Respondent

The spouse who does not initiate the Divorce with the court.

Court Name:
In the District Court in and for the County of __________ and State of Colorado

The proper name of the court in which a Divorce is filed in the state of Colorado. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Petition for Dissolution of Marriage

The title and name of the legal document that will initiate the Colorado Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Decree of Dissolution of Marriage

The title and name of the legal document that will finalize the Colorado Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
District Clerk’s Office

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

If there has been an irretrievable breakdown of the marriage, the spouses may file for a legal separation. One spouse must have been a resident of Colorado for 90 days prior to filing for legal separation.

[Colorado Revised Statutes; Article 10, Section 14-10-106].

Property Distribution:
Equitable Distribution

The applicable Colorado law that will dictate how property and debt is to be divided upon Divorce.

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