Welcome to the Colorado Divorce & Family Law Guide, a comprehensive collection of Colorado divorce law, and other CO family law articles.
A divorce in Colorado is already about the toughest experience a person can endure, and the Colorado divorce and family court system is not easy to navigate unless you know what to expect, or have an experienced Colorado divorce attorney on your side. The Colorado Divorce and Family Law Guide can help by providing an overview of divorce laws in Colorado.
For people with less complicated family law situations, such as Colorado child support modifications or uncontested divorces, the Colorado Divorce & Family Law Guide may educate you sufficiently to do the case yourself, especially when combined with the new D.I.Y. Divorce Guide, a step-by-step guide for handling your own uncontested divorce in Colorado.
If your case involves the military, see the Military Divorce Guide. A divorce in which a spouse is active duty military or a retiree presents unique issues in Colorado family law cases. The Military Divorce Guide can help by explaining the issues unique to a "Colorado military divorce" case, such as how Colorado family law courts divide military retirements, survivor benefit plan (SBP), VA disability payments, garnishing military pay, the Servicemembers Civil Relief Act of 2003, etc.
A negotiated settlement is almost always better than a contest for both parties, and is easier to obtain with a seasoned, no-nonsense veteran lawyer on your side who knows CO divorce and paternity laws.
If you wish to have an experienced Colorado Springs divorce attorney, contact Black & Graham, PC to arrange for a consultation. We handle cases in El Paso, Teller, Douglas, and Pueblo Counties.
Can you do your own divorce in Colorado? Quite possibly - every year, people who are willing to spend the time to educate themselves, and fill out the forms properly, can, and do, successfully obtain their own divorce without the assistance of counsel. But it's not for everyone. Read the D.I.Y. Divorce Guide, particularly the criteria section, to see if it can work in your situation.
The D.I.Y. Divorce Guide assumes that you have researched your situation, and are comfortable with what to expect. You've read the Colorado Divorce & Family Law Guide cover to cover. If you're in the military, you've read the Military Divorce Guide. You've spoken to people who have been through a Colorado divorce. You've gone to the free pro se clinic at the Courthouse. And finally, once you have everything prepared, you should still consult with an attorney to review everything. Most Colorado family law attorneys (including this firm) charge a consultation fee, but a nominal consultation fee is a small price to pay to make sure you know your rights, and things are done properly.
The D.I.Y. Divorce Guide is aimed at people whose case meets these criteria:
Download the forms that you will need in advance. This Guide references the necessary forms for each step in the process in yellow. The forms can be obtained from:
Colorado State Judicial Branch Forms. The Colorado Supreme Court has all of the basic Colorado family law forms available in both MS Word and Adobe PDF formats. This is your best source for the statewide Colorado divorce forms referenced in this Guide.
4th Judicial District Web Site. The El Paso and Teller County District Courts have a few of their own unique forms - they are available on the court web site in both Word and PDF formats.
Each of these sites also has instruction sheets available for download, which explain both the general process, and also give guidance for filling out specific forms.
The Colorado Judicial Branch has an interactive map of Colorado judicial districts. Simply click on your location on the map, and it will take you to a page with information about the district, and, if applicable, a link to that court's web site, where you can you find out about the specific procedures or forms used by that district.
Note: When local practice is referenced, The D.I.Y. Divorce Guide is based upon the 4th Judicial District forms and procedures. Since each of Colorado's judicial districts can set its own procedures, and may have local supplements to the statewide forms referenced in this Guide, check your local judicial district to make sure you comply with their requirements.
Note that these instructions are for the statewide forms. The few 4th Judicial District specific forms have a bit of a simpler caption on the top, which still requires similar information. Starting on the top left of the caption:
Signature. Once you complete the form, there will be a place for your signature on the bottom of the form. Some forms require your signature to be notarized.
Certificate of Service. Most forms contain a Certificate of Service. Fill out your spouse’s name & address, and method of service. Once you mail the form to him/her, sign that line.
Unless you have access to the Colorado Interactive Filing System (ICCES), the initial pleadings must be filed in person (in El Paso County it's in Room 105), as explained on the next page.
Most subsequent pleadings can be filed in person, or by mailing the pleading to the Clerk of Court at the court address. You'll also need to mail a copy of each pleading to your spouse.
JDF 1000 - Case Information Sheet (Word Template | Word | PDF). This form contains personal. information about the couple which is for the Court's information, but not releasable to the public. The form is self-explanatory, and tick the boxes which say each of you are planning on being self-represented (they won't hold you to that if something changes!). You can stop at the end of the first page, unless there has been other relevant litigation (e.g. parenting case, restraining order).
JDF 1101 - Petition for Dissolution of Marriage or Legal Separation (Word | PDF). This document formally asks the Court to grant a dissolution or legal separation. Tick the appropriate boxes, depending upon whether you're seeking a legal separation or a dissolution, and whether there are minor children of the marriage. Assuming you are filing jointly with your spouse, both of you should then sign/notarize the last page.
JDF 1102 - Summons for Dissolution of Marriage or Legal Separation (Word Template | Word | PDF). This form is only needed if you and your spouse did not sign the Petition jointly. Fill out the caption on both pages, and tick the appropriate box for a dissolution or legal separation. Do not sign this form (that's for the clerk of court), nor complete the second page other than the caption.
FCF 900 - Standard Order to Parents - Fourth Judicial District (Word). 4th Judicial District Only. This form is only needed if you and your spouse have minor children. Complete the caption at the top of this form. This document contains default parenting provisions which are binding on both parties until further order of the Court.
FCF 400 - Domestic Relations Case Management Order Pursuant to Rule 16.2 (PDF). 4th Judicial District Only. Complete the caption at the top of the form. This document advises the parties of the rules governing how the case will proceed.
FCF 700 - Notice of Applicability of Court Forms, etc. (Word). 4th Judicial District Only. Complete the caption at the top of the form. This document is somewhat similar to the Domestic Relations Case Management Order, and sets out procedures for the parties to follow.
If both spouses jointly signed the Petition, skip steps 5 & 6, and go to next page.
If your spouse is cooperative, simply give him/her a copy of the initial pleadings, and obtain his/her notarized signature on the Waiver & Acceptance of Service on the second page of the Summons.
If your spouse is not cooperative, but you're still trying to do this yourself, then you can have any adult who is not a party to the case (i.e. anyone but you) serve your spouse with the initial pleadings. You can also use the Civil Section of the El Paso County Sheriff's Office for a modest charge of $35 or so. Whoever serves your spouse will then sign and notarize the Return of Service on the second page of the Summons. (Note that many process servers will have their own form instead - this is perfectly acceptable to the Court).
Jointly filing the Petition, serving your spouse, or your spouse signing a waiver of service all start the 90-day waiting period before the dissolution or legal separation can be final.
Copy the Summons/Return of Service for your records, then file the original with the Clerk of Court.
Between the time you file the initial pleadings and the Initial Status Conference has been scheduled, you will have about 40 days to complete your financial disclosures.
1. Complete the Children & Families in Transition Seminar. At some point between filing the Petition, and attending the Initial Status conference, you should attend this mandatory seminar. Click on the link for the seminar schedule, so you can plan accordingly. If you live out of state, you will need to ask the Court for permission to take an alternative class offered through the court system where you live. If you are in the military and are deployed, the Court will generally accept a memo from a chaplain indicating that you have received 1 1/2 hours of training in issues that parents and children face during dissolution.
2. Consult Form 35.1, Mandatory Disclosures, which is also attached as the last page of the Case Management Order , contains the list of financial documents the spouses are required to exchange with each other in every case, even if the case is uncontested. The list contains such items as tax returns, pay stubs, credit card and bank statements.
3. Complete JDF 1111 - Sworn Financial Statement (Word | PDF), and, if applicable, the JDF 1111ss Supporting Schedules for Assets (Word | PDF). These two forms advise your spouse of your income, expenses, assets, and debts.
4. Complete JDF 1104 - Certificate of Compliance with Mandatory Financial Disclosures (Word Template | Word | PDF). Tick the boxes of the applicable financial documents you will be providing to your spouse.
5. Provide spouse with a copy of the Sworn Financial Statement, Certificate of Compliance, and mandatory disclosures.
6. File with the Court the Sworn Financial Statement and the Certificate of Compliance.
Note that your tax return, pay stubs, bank statements, and the other mandatory financial disclosures are NOT filed with the Court. Instead, you provide them to your spouse, and simply certify to the Court that you have done so.
Once you have exchanged your financial disclosures, you should download and fill out the following forms:
2. JDF 1113 Parenting Plan. (Word | PDF). This form is only needed if you have children. This fill-in-the-blank form contains your parenting schedule, decision-making designations, and child support issues.
3. JDF 1820E Child Support Worksheet. (Self-Calculating Excel Spreadsheet). This form is only needed if you have children. If support is payable, you must attach a child support worksheet to the parenting plan. There are also manual worksheets, if you're knowledgeable and brave enough to do the calculations - not for the faint of heart: JDF 1820M Worksheet A (Word | PDF) for sole physical care (one parent has fewer than 93 overnights), and JDF 1821M Worksheet B (Word | PDF) for shared physical care (each parent has at least 93 overnights).
5. JDF 1117 Support Order. (Word Template | Word | PDF). This form is only needed if there are minor children, or one spouse will be paying maintenance to the other. Fill out all required information, including which spouse will be providing the children's health insurance.
6. JDF 1201 Affidavit for Decree Without Appearance of Parties. (Word Template | Word | PDF). This form is only used if there are no minor children, and, strictly speaking, is NOT available for Legal Separation cases. Fill out the form, and sign/notarize it. As with the decree, indicate the service of process method, and other necessary information.
Do not file the documents at court yet. Instead, complete them to the best of your abilities, and bring them to the Initial Status Conference for review by the domestic court facilitator.
Approximately 40-50 days after starting the case, you and your spouse will be scheduled to attend the Initial Status Conference.
Note that this step is almost certainly different depending upon your judicial district. In El Paso County, if there are no attorneys on the case, your Initial Status Conference will be conducted in a room with either Michael Vigil, or Nicolle Rugh, the two domestic court facilitators at the courthouse. In other judicial districts, the Initial Status Conference may be conducted in a courtroom in front of a judge or magistrate.
Bring all of your paperwork to the conference, which should take about 10-15 minutes. The domestic court facilitators cannot give you legal advice, nor enter any orders. If you have completed all of your paperwork and brought it with you, they generally can review your paperwork, and the agreements, to make sure they are filled out properly.
A review of documents to ensure they are filled out properly is NOT legal advice. The domestic court facilitator cannot indicate whether your agreements are advisable, or whether you forgot to divide an asset, or tell you what a judge would do. See Legal Advice vs. Procedural Information, from the Colorado Judicial Branch, for more information on what they can and cannot do.
If, after the Initial Status Conference, you need to modify any forms, you should do so before signing and filing them at court.
If you have no minor children, follow the instructions on the next page to finalize your case. If you have children, skip that step, and instead follow the instructions for setting and attending the final hearing.
This step is only for cases without minor children. If you have minor children, skip this page, and instead follow the instructions for setting and attending the final hearing.
The final step is to obtain the Court approval of your dissolution. If you have no children, it is real easy - wait until the required 90 days has elapsed since service of process, and file the following signed & completed original documents at the clerk's office:
Provide two additional copies of the decree and support order, with self-addressed stamped envelopes for each spouse, so the clerk can mail you each a copy once the decree has been signed.
It is important for you to track when the 90th day is. The court may not track that date, and if you submit the documents early, the magistrate may sign them before 90 days have elapsed, which could cause you problems later.
That's it - assuming you properly filled out all of the forms, you should receive a signed copy of your decree within a week or two, and you'll be divorced.
If you have minor children, unless both spouses have counsel, you cannot simply submit the signed paperwork to the court and wait for the decree. Instead, the spouses in Colorado divorces involving children, or if they're getting a legal separation (don't ask - it's a quirk in the statute) are required to attend an uncontested permanent orders hearing.
In the 4th Judicial District, there is a simplified process to obtain an uncontested hearing date:
The court will set the hearing date, and mail you back a copy of the form with the date, time, and place of the hearing.
In other judicial districts, the procedure will vary (see JDF 1122 - Instructions to Set a Hearing and to Complete a Notice of Hearing or Status Conference Form (Word | PDF) for more information), but will probably include steps similar to the following:
A spouse who is not in the local area can generally participate in the hearing by telephone, using this procedure:
Dress respectably. Don't bring your children to the courtroom (Click for more information on Court Care, a free service at the El Paso County Courthouse to watch your children while at court). Arrive at the courtroom at least 5 minutes early. Be polite to the judge or magistrate. For more guidance on courtroom etiquette, review this guide from the Colorado Judicial Branch: What You Need to Know About Representing Yourself in Court.
Bring a copy of all of your pleadings and financial documents to the hearing with you.
The hearing should take about 10-15 minutes, during which the magistrate will ask you and your spouse questions about the marriage, and about the agreements you have reached. Providing that everything was filled out properly and submitted in advance, the court will grant the dissolution, and give you a copy of the decree of dissolution the same day.
Colorado has two ways to enter into a marriage - follow the ceremonial procedure outlined by the Colorado Revised Statutes, or enter into a common law marriage.
Moreover, for those who are unable to marry, or choose not to, there are alternatives to marriage which afford some, but not all, of the rights of marriage.
There are additional prohibitions in C.R.S. 14-2-110, which prescribes the following marriages:
In addition to the potential criminal penalties for bigamy mentioned above, a marriage which is prohibited is void, and therefore subject to annulment (declaration of invalidity of marriage) under C.R.S. 14-10-111.
Colorado is one of a few states remaining which still allows parties to enter into a common law marriage, or a marriage without formal ceremonies.
"A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship." People v. Lucero, 747 P.2d 660 (Colo. 1987).
This is the classic definition of a common law marriage, but as relationships end, there are often disputes as to whether the couple had a common law marriage. There is no hard and fast rule as to what constitutes a Colorado common law marriage, nor even one law which directly covers it. C.R.S. 14-2-104(3), part of the law which establishes the requirements for a Colorado marriage, simply states: "Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman."
Since there's no such thing as a Colorado common law divorce, if the couple breaks up, they also enjoy all of the rights, privileges, and headaches of a formal Colorado divorce or legal separation. Trying to remarry without a formal dissolution would be bigamy, and renders the second marriage void!
www.state.co.us. Information paper on Colorado common law marriages by the Colorado General Assembly's Office of Legislative Legal Services.
www.cdphe.state.co.us. The Colorado Department of Public Health Vital Records Section information page on solemnizing marriages and common law marriages in Colorado.
coloradoattorneygeneral.gov. Link to sample State of Colorado Affidavit of Common Law Marriage on the Attorney General's web site. Note that an affidavit is not required, and this is not an "official" form, but simply a sample people can use if they like.
It is up to the Colorado divorce Courts, with more than a hundred years of legal decisions to draw on, to determine whether Colorado will recognize that a common law marriage exists. The Lucero case outlines the basic criteria for a common law marriage in Colorado. The couple must:
Note that the "agreement" to be married need not be an "express" agreement - it is not common for a couple to execute a formal affidavit of common law marriage, or even have an agreement that they are married, which means proof can be complicated. Unless both parties agree that they had a common law marriage in Colorado, they will inevitably need the assistance of a Colorado divorce or family law attorney who knows Colorado common law divorce issues.
Though living together (cohabitation) is required, no specific duration is necessary. This means that a couple which is clearly girlfriend/boyfriend could live together for 20 years without creating a common law marriage in Colorado. However, a relationship where the couple hold themselves out as married and intend actually to be married could be considered a marriage in a relatively short time. Here is a non-exclusive list of factors Colorado divorce courts look at when determining whether a common law marriage exists:
No one factor is paramount, but typically claiming the other party as a "spouse" simply to gain a private economic advantage (health insurance, joint gym membership, etc), while potentially fraudulent, is not usually sufficient to establish a common law marriage in Colorado. A Colorado common law marriage is not simply living together or a casual relationship - it means the couple tells everyone they are married.
Absent the couple agreeing that they were married, or having a unanimous parade of friends and family testify that they believed the couple was married, filing joint tax returns is widely regarded as the most important of the "objective" factors, since it means the couple is holding themselves out to the government, under penalty of perjury, as being married.
If the couple disagrees as to whether they have a common law marriage, the Colorado family law court is required to conduct a hearing to determine the issue, at which the trial court will determine the facts based upon the credibility of the evidence. In re: Custody of Nugent, 955 P.2d 584 (Colo. App. 1997).
Note that judges scrutinize self-serving common law marriage claims carefully - they require pretty compelling evidence to find that a relationship is actually a common law marriage. As a court long ago said, "evidence to establish a common-law marriage should be clear, consistent, and convincing." Peery v. Peery, 150 P. 329 (Colo.App. 1915).
A Denver Probate Court judge remarked: "marriage is a banquet, not a smorgasbord." A person cannot pick and choose to call himself/herself married only when it's convenient, and then single at other times. So a party asserting a common law marriage claim likely needs something close to unanimity of evidence, and have not claimed to the contrary, to have a decent chance of success. Two documents claiming to be married, and one claiming to be single, probably means you're single!
Spouses in a Colorado common law marriage enjoy all of the benefits of being married. Legally, there is no difference between a married couple who went through a ceremonial marriage, and one with a common law marriage, and it is a violation of the equal protection clause of the U.S. Constitution to treat married couples differently based upon how their marriage was created. Carter v. Fireman's Pension Fund, 634 P.2d 410 (Colo. 1981).
Moreover, thanks to the U.S. Constitution requiring states to give "full faith & credit" to other states' laws, a couple who were common-law married in Colorado are considered married by the federal government, the military, as well as every state, including those which do not themselves authorize common law marriages.
However, to prevent fraud, some institutions require proof of the common law marriage, either by showing joint tax returns, or filling out an affidavit swearing that a couple is married.
In 2006, as a response to a Colorado Court of Appeals decision holding that young teens could enter into a common law marriage, the Colorado legislature enacted C.R.S. 14-2-109.5, which provided two rules for common law marriages in Colorado:
Moreover, same-sex couples cannot marry in Colorado, since C.R.S. 14-2-104 explicitly provides that a marriage in Colorado can only be between one man and one woman, and Colorado will not recognize as valid any marriage performed outside of Colorado to the contrary.
Colorado has adopted the Uniform Marriage Act at C.R.S. 14-2-101, et seq. So the Colorado statutory procedures parties must follow in order to marry may seem familiar to those who have been married in other states.
Ceremonial marriage is what most people think of when getting married, and contrasts to common law marriages, which are also recognized in Colorado.
When one party to a marriage is not available to attend the ceremony, Colorado allows the marriage to be by proxy, which means that a third party stands in for the unavailable party. C.R.S. 14-2-109(2). The following criteria must be met:
Colorado requires that each party to the marriage be at least 18 years-old, or at least 16 years-old if that party has the consent of both parents/guardians, or the parent with decision-making responsibility over the party. C.R.S. 14-2-106. Children under 16 years-old may marry with both parental consent, and permission from a judge.
Judges can approve a party who is 16 or 17 years-old providing that:
Colorado law provides that it is a misdemeanor to attempt to knowingly violate the procedures and requirements for a marriage. C.R.S. 14-2-113.
I was shocked to read an article in Courthouse News Service about a Georgia man being ordered to pay $50,000 for jilting his fiance. It really did seem a throwback to the past when women were regarded as second-class citizens, even as chattel.
In that case, the couple lived together and had a child together, then got engaged, with the man giving his fiance a $10,000 ring. In reliance on that promise, the woman quit her job to raise their child. The problem was that the man couldn’t stop cheating on his fiance, and 7 years after the engagement, when the woman confronted him about it, he threw her and his child out.
She sued, and the trial court awarded $50,000 in damages and attorney’s fees. A divided Georgia Court of Appeals affirmed the judgment. What's more, my research disclosed that Georgia is not alone.
A tort is simply a legal word for a cause of action. The so-called “heart-balm” causes of action read like they’re from the 19th century: alienation of affection, criminal conversion, breach of promise to marry, and seduction.
According to Divorce Source, there are still 9 states that have heart balm torts: Illinois, Hawaii, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah. However, I take this list with a grain of salt, as I've seen other lists with different states listed.
And the noted legal blog Volokh Conspiracy reported recently on a South Carolina case with a similar holding. As recently as 2012, the South Carolina Court of Appeals affirmed in Campbell v. Robinson (S.C. App. 2012) that a 1984 decision, Bradley v. Somers, 322 S.E.2d 665 (S.C. 1984) is still good law. In theBradley decision, the court basically found that the appropriate measure of damages for breach of contract to marry were what the would-be bride when the marriage was broken off:
"She is entitled to recover for the loss of the pecuniary and social advantages of the promised marriage. Also, her mental anguish, humiliation, and injury to health and psyche are elements of damages. In addition, she may recover for losses sustained from expenditures made in preparation of marriage. The jury may consider the monetary value of a marriage which would have given Christine a home."
In 1937, the Colorado legislature abolished "Heart Balm" torts by enacting C.R.S. 13-20-202, which states: "All civil causes of action for breach of promise to marry, alienation of affections, criminal conversation, and seduction are hereby abolished," and C.R.S. 13-20-203, entitled “Breach of Contract to Marry Not Actionable”, which states:
"No act done within this state shall operate to give rise, either within or without this state, to any of the rights of action abolished by this part 2. No contract to marry made or entered into in this state shall operate to give rise, either within or without this state, to any cause or right of action for the breach thereof, nor shall any contract to marry made in any other state give rise to any cause of action within this state for the breach thereof."
The Colorado Supreme Court upheld the constitutionality of this statute in the decision of Goldberg v. Musim, 427 P.2d 698 (Colo. 1967), in a case where a jilted fiance tried to claim that the legislature could not abolish his substantive right to sue for for alienation of affection. He lost.
Prior to the abolition of such causes of action, Colorado allowed this cause of action. One such reported decision is a 1909 case, Harrison v. Carlson, 101 P. 76, 45 Colo. 55 (Colo. 1909), where a woman sued her former fiance for seduction and breach of promise to marry. The court stated that seduction alone was not worthy of damages - the woman actually had to prove she suffered harm:
"It is not the mere fact that a plaintiff claiming to have been seduced under promise of marriage permits the defendant to have intercourse with her which entitles her to damages, but the shame, mortification, humiliation, subsequent status among her friends, and in society, the effect upon her future, and a variety of other circumstances naturally resulting from her seduction, which are to be considered in determining to what extent the damages arising from the refusal of the defendant to fulfill his promise of marriage have been aggravated and increased by his conduct in seducing her under promise of marriage."
While not a reported case, there is even a storied example of a Cripple Creek call girl suing famed Colorado Springs residence Spencer Penrose for $20,000 in 1805 for breach of promise to marry, claiming that he lured her to his bed and impregnated her. According to the book "The Colorado Labor Wars: Cripple Creek 1903-1904, A Centennial Commemoration" by Tim Blevins, et al, her case was dismissed.
There are very few cases in Colorado dealing with gifts conditioned upon marriage, and no reported Colorado decision actually involving engagement rings. But there is a body of law dealing with gifts in contemplation of marriage.
The seminal Colorado case is In re Marriage of Heinzman, 596 P.2d 61 (Colo. 1979). There, the man purchased a residence, and three months later, when the couple got engaged, he conveyed the property to the couple as joint tenants. Shortly thereafter, the woman moved away, and the man subsequently married another woman.
The trial court found that the residence "was a gift conditioned upon the subsequent ceremonial marriage", and that by moving away, the woman had abandoned the engagement. Accordingly, she was ordered to convey her interest in the residence back to the man.
The Colorado Supreme Court upheld that ruling, analyzing the issue nationwide and adopting what it found to be the majority rule:
"The majority rule appears to be that B must transfer back to A a gift received and held under the following circumstances: A and B are engaged to be married to each other. In contemplation of the formal commencement of that life of bliss A makes a gift to B. Later, through no fault of A, B breaks the engagement. The majority of courts reason that such a gift was conditioned upon a subsequent ceremonial marriage."
The woman argued that argued that Colorado’s "Heart Balm" statute, which abolished lawsuits for breach of promise to marry, precluded the man from getting the property back. The supreme court disagreed, holding that the act was intended to preclude lawsuits for the direct consequences of ending the engagement, such as humiliation, but did not preclude requiring the return of a gift conditioned upon marriage.
The issue in Heinzman was real property, not an engagement ring. However, it is hard to imagine a gift more conditioned upon marriage than an engagement ring, so the Heinzman rationale would almost certainly apply to rings as well.
Moreover, the Heinzman decision favorably cited out-of-state decisions in cases that did involve engagement rings, such as De Cicco v. Barker, 159 N.E.2d 534 (Mass. 1959), where the the Massachusetts Supreme Court stated: "an engagement ring is in the nature of a pledge, given on the implied condition that the marriage shall take place. If the contract to marry is terminated without fault on the part of the donor he may recover the ring."
When it comes to divorce, Colorado is strictly a no-fault state. However, that is not the case with breaking an engagement.
Who keeps the engagement ring depends upon whose "fault" it was the engagement ended. If the engagement was broken off through no fault of the would-be groom, he is entitled to have his ring back. Examples of this may be if the woman simply fell out of love with him, or met someone else.
But the woman can keep the ring in the following circumstances:
Back when Colorado required fault to obtain a dissolution of marriage, grounds included adultery, abandonment, habitual drunkenness and mental cruelty. Presumably if those grounds are sufficient to end a marriage, if a man were engaging in that conduct now, the woman could probably break the engagement and keep the ring.
There is no decision on whether the flipside is also true - if the man breaks the engagement because the woman committed a crime against him, is she therefore the one at fault, so must return the ring? Common sense would say yes, but there is no reported CO decision on this point.
In the 20 years since Colorado has addressed the issue of a gift conditioned upon marriage, one article which has analyzed decision has concluded that a majority of states have moved on from fault, and now hold that an engagement ring must be returned, regardless of who was at fault. "This Diamond Ring Doesn’t Shine for Me Anymore: Who is Entitled to Possession of Engagement Presents when No Marriage Occurs."
In Hooven v. Quintana, 618 P.2d 702 (Colo. App. 1980), a man lavished gifts on a woman who was still married to her husband, including buying her a car, paying her bills, and even her legal fees to divorce her husband. Their relationship subsequently ended.
The court found that it would violate public policy to recognize a gift to a married woman was a gift in contemplation of marriage, so the man could recover only the gifts he gave to her after her divorce was final.
In 1995 the Colorado Court of Appeals expanded the Heinzman ruling, applying it to any gift conditioned upon marriage, even if the parties never got engaged. Boydstun v. Loveless, 890 P.2d 267 (Colo.App. 1995).
There, as with Heinzman, the man bought a residence, then transferred it to a joint tenancy with the woman. The woman subsequently moved away.
The court held:
"Despite a formal engagement However, we agree with Keith that the trial court properly concluded that Heinzman is not limited to circumstances in which there is a formal engagement, a transfer of real property in contemplation of marriage, and the breaking of the engagement. Rather, in our view, the holding in Heinzman extends to a situation in which a joint tenancy is created as a gift conditioned upon subsequent marriage of the parties, and such marriage does not occur."
Interestingly, the issue of who was at fault for ending the engagement was not addressed in the court’s holding. The marriage upon which the gift was conditioned never happened, so the gift was deemed revoked and had to be returned.
Per C.R.S. 14-2-111, a putative spouse is "any person who has cohabitated with another to whom he is not legally married in the good faith belief that he was married to that person..." So the two important elements are (1) cohabitation, and (2) a good faith belief of marriage.
Putative spouse cases are few and far between - they are rare enough that most family attorneys, including this firm, have likely not litigated a putative spouse case, and there is also very little guidance from the courts on what facts are sufficient to establish someone as a "putative spouse".
The putative spouse statute may be thought of as a "fallback" in case someone has a good faith belief in marriage, but cannot establish the existence of either a ceremonial or a common law marriage. However, a putative spouse should not be confused with the concept of palimony, where some states (not Colorado) confer financial benefits on a couple who end their relationship, even though the couple themselves knew they were never married.
As indicated, there is very little precedent out there telling people when someone qualifies as a putative spouse. This necessarily means that the outcome of each case will be very fact-specific.
The few cases there are agree on one point, however - if the would-be putative spouse knows that the other party is still legally married to someone else, he/she cannot have a good faith to be a putative spouse. People v. McGuire, 751 P.2d 1011 (Colo. App. 1987). And that applies even if the couple underwent a "celestial" or some other spiritual ceremony - a person cannot have two spouses, so knowledge of another marriage negates a putative spouse claim. Combs vs. Tibbitts, 148 P.3d 430 (Colo. App. 2006).
However, if a would-be spouse who was unaware that the other spouse was still legally married has a putative spouse claim. In Williams v. Fireman's Fund Ins. Co., 670 P.2d 453 (Colo.App. 1983), the couple went through a formal wedding ceremony, lived together, and had a child. But there was a problem - the husband was still technically married, as a California court had previously entered an interlocutory judgment dissolving that prior marriage, but that had never been reduced to writing, as required. The court found that the wife was a putative spouse with all the rights and benefits of a spouse, as she was unaware of the illegality of her marriage.
So who has a potential putative spouse claim? Realistically, it's likely limited to someone who tried to marry, going through a marriage ceremony or meeting the common law marriage requirements and is seemingly married, but is unaware of the facts or legal barriers which would make the marriage void - such as a problem in the ceremony, or the fact that the other party were still married.
Here's a news article about a real-world example of what courts would likely treat as a putative marriage - a couple which went through a wedding ceremony back in 1964, but had apparently not complied with the marriage license requirement. Unbeknownst to them, their "marriage" of the past 5 decades was not legal.
Per C.R.S. 14-2-111, a putative spouse has all of the rights of a legal spouse, including maintenance, property division, etc. However, if the other party actually has a legal spouse, then the putative spouse's rights do not supersede the legal spouse's rights. Instead, the Colorado family law court "shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice."
Once a party learns that the marriage is not valid, he/she ceases to be a putative spouse, and does not acquire any further rights as a putative spouse from that time onwards. Note that this does not take away any putative spouse rights already acquired, however.
The Social Security Administration recognizes a Colorado putative spouse, and confers benefits on a claimant who can establish her/himself as a putative spouse. SSR 80-2. But see PR05705.007 - the federal government is not bound by a determination from a Colorado family law court that someone is a putative spouse, and can substitute its own judgment if it believes that the state court was wrong.
Wikipedia article on Putative Marriage.
Just as there is more than one way to enter into a marriage, Colorado provides spouses with three ways to end marriages:
Each has its advantages and disadvantages, but since all are governed by the same set of statutes (Title 14, Article 10), they have very similar rules and procedures.
Regardless of how the marriage ends, the Colorado family law court In each case will resolve parenting issues, divide marital assets, determine maintenance and child support. So the settlements will look the same regardless of which method one uses to end a marriage.
NOTE: ONLY APPLIES TO DISSOLUTION OF MARRIAGE AND LEGAL SEPARATION. Spouses seeking a Colorado annulment must meet one of the very specific statutory grounds to receive a declaration of invalidity of marriage.
Colorado divorce law is no fault - either spouse can petition for a dissolution of marriage (the legal term for a divorce in Colorado) or a legal separation simply, and only, because the marriage is irretrievably broken. C.R.S. 14-10-106(1)(a)(II). The old grounds of adultery, cruelty, desertion, etc. have been abolished, and likewise the old defenses to divorce, such as condonation, insanity or collusion, have been abolished. C.R.S. 14-10-107(5).
Interestingly, adultery is still technically prohibited in Colorado, per C.R.S. 16-6-501, however no penalty is defined for it, and it appears to have been last prosecuted in 1925!. And if one spouse is in the military, then adultery is still a violation of Article 134 of the UCMJ (see Manual for Courts-Marital, Part IV - Punitive Articles, Para. 62 for more information). However, the fact that conduct may be an offense in the military does not make it relevant to a dissolution in Colorado.
Since Colorado is no fault, Colorado family law courts will "keep it clean", and not even allow a spouse to put on evidence of wrongdoing by the other spouse, with only limited exceptions (e.g. abuse may be relevant on the issue of parenting, or wrongfully disposing of a marital asset may be relevant on the issue of property division).
Colorado has adopted the Uniform Dissolution of Marriage Act, codified at C.R.S. 14-10-101, et seq.
In order for the family law courts here to have subject matter jurisdiction to grant a Colorado divorce or legal separation, at least one spouse must have been domiciled in Colorado for the 90 day period prior to filing. For an annulment in Colorado, there is a 30-day domicile period if the marriage was not entered into in Colorado, and no waiting period at all if the spouses were married in Colorado.
"Domicile" means more than merely living in the state of Colorado. It is the intent for Colorado to be that spouse's permanent residence. This most often affects military couples - see the article Jurisdiction over Servicemembers in the Military Divorce Guide for more information if either spouse is in the military.
Subject matter jurisdiction alone is not sufficient, however, to resolve all of the issues involving a Colorado divorce or legal separation. That simply gives the Colorado domestic relations court the authority to (1) terminate the marriage, (2) divide marital property located in Colorado, and (3) enter custody/parenting orders for children, if Colorado is their home state (six months residence).
Personal jurisdiction over the respondent spouse, and therefore the authority for the Colorado divorce court to divide property outside of Colorado and order the respondent spouse to pay maintenance or child support, requires one of the following:
So even though Colorado can grant a divorce with service outside of Colorado, or with service by publication, some of the issues will have to be reserved for later adjudication by a divorce court which has jurisdiction over the respondent spouse
Your Colorado family law attorney will take care of the divorce procedures for you, so this section is not intended as a "how-to" guide, but is instead a broad overview of what to expect in a Colorado divorce proceeding. For a more detailed explanation of the procedures and forms involved, consult the DIY Divorce Guide.
The first step is to prepare the initial paperwork for filing with the Court. Except for potential issues involving whether Colorado has jurisdiction over a spouse, there is no advantage or disadvantage to being the Petitioner (the party who files the initial pleadings) or the Respondent. A judge will not look less favorably on a spouse who started the divorce, nor vice versa.
Once the initial pleadings are filed, the other spouse must be served with the paperwork, or sign a waiver of service. The date of service starts a mandatory 90-day waiting period before the couple can actually obtain a final decree of dissolution or legal separation (there is no waiting period to obtain an annulment in Colorado). However, unless both spouses agree on everything early on in the process, it typically takes 6 - 9 months to obtain a divorce in Colorado, and sometimes longer.
If your spouse cannot be located, don't worry. I, and several other Colorado Springs divorce attorneys, work with investigators who are skilled at finding the difficult-to-find spouses. If those efforts are ultimately unsuccessful, it is possible to start the process by serving your spouse by publication. It is more complicated, and since the Colorado divorce court lacks personal jurisdiction over the missing spouse, it cannot enter any orders for support or to divide property outside of Colorado. But at least in the end, you end up with a Colorado decree of dissolution.
While the case is proceeding, each spouse must complete a sworn financial statement, and provide exhaustive financial disclosures. See the Financial Disclosures section of the DIY Divorce Guide for more information and links to forms.
These initial financial disclosures are mandatory in all cases, even if everything is agreed. That's because even if the spouses submit a full agreement, the Colorado divorce court is still required to make a finding that the agreement is fair and not unconscionable, before accepting the agreement. C.R.S. 14-10-112. And that necessarily requires a review of the couple's finances.
In some cases, a spouse may need additional disclosures or information, such as if there is a suspicion that an asset may have disappeared, there are questions about where debts came from, or there is a need to look at a spouse's educational or employment history to determine an appropriate income to impute. Consult with your Colorado divorce lawyer if you think you need more, but here are the additional disclosures one can insist one:
If a Colorado divorce case is uncontested, and agreements are reached fairly quickly, then the parties may never even be required to show up in Court. So some, or all, of the following proceedings may not be necessary for a particular case.
Note that Colorado family law proceedings are bench trials only - issues are decided by judges or magistrates, not by juries.
The same caveat applies here as with court proceedings - some of these may not apply to cases where issues are resolved quickly. Colorado state divorce law emphasizes settlement over litigation, so before the divorce court gives the parties time on the crowded docket, they will be required to meet and discuss the case several times in an attempt to resolve the issues themselves, outside of the courtroom.
In addition to these formal meetings, the attorneys will typically communicate numerous times during the process to discuss issues, procedures, etc. Additionally, if the spouses are getting along well, there is usually nothing stopping them from talking directly to each other to settle issues.
Most normal people (i.e. non-lawyers) think of a divorce as the action which ends a marriage, however Colorado uses the legal term "dissolution of marriage" instead. The terms are interchangeable for all practical purposes.
A divorce is just one way to end a marriage - the others are a Colorado annulment, which is used in limited circumstances to not only end the marriage, but to pretend that it never occurred, and a Colorado legal separation, which technically does not end the marriage, but still finalizes financial and parenting issues.
With a Colorado dissolution of marriage, the parties are legally divorced for all purposes. They file separate tax returns, they are free to remarry, etc.
A divorce and legal separation share the fact that there are no specific grounds required other than the marriage being irretrievably broken. However, in contrast to a legal separation, a divorce is permanent and final.
Similarly, while both a divorce and an annulment are final, and sever the marital bonds for all purposes, most marriages don't qualify for an annulment, so a divorce is the only sure way to end a marriage.
Most marriages which are terminated end in divorce, not an annulment or legal separation, but if you're interested in exploring your options, discuss the pros and cons of each method with your Colorado family law attorney.
Divorce Mediation - Denver, Colorado Family Lawyer-Mediators. An alternative to litigated divorces is one mediated by experienced professionals. This web site also has excellent information on Colorado divorce law.
A legal separation in Colorado is an alternative to a Colorado divorce or annulment. The advantage is that Colorado legal separation law finalizes all child custody and financial arrangements (including child support, division of property and debt, and maintenance, etc), but the spouses are still technically married for purposes of some health care plans, insurance, military benefits, or religions which frown upon divorce.
But this also means that the parties are still technically married, so neither spouse can remarry without first obtaining a dissolution.
If spouses are seeking to obtain a legal separation in Colorado thinking that it might be simpler than a divorce, they will be disappointed. A legal separation has the same procedures as a divorce, and just as final a resolution of all issues - property & debt division, parenting issues, maintenance, support, etc.
The disadvantage of legal separation in Colorado is that the process is no easier than a Colorado divorce. Aside from the lack of a waiting period, the process is procedurally identical and involves all of the same issues. In the end, however, the parties have a decree of legal separation, not a decree of dissolution.
After filing a petition for Colorado legal separation, either spouse can ask the Colorado family law court to grant a divorce instead of a legal separation. C.R.S. 14-10-106(2).
Plus, once a Colorado decree of legal separation has been issued, either party can convert it to a decree of dissolution after six months has passed, usually with the same terms as the legal separation. C.R.S. 14-10-120.
NOTE: ONLY APPLIES TO DISSOLUTION OF MARRIAGE AND LEGAL SEPARATION. Upon the other spouse being served, or signing a waiver, in a Colorado divorce or Colorado legal separation case, C.R.S. 14-10-107(4)(b)(I) puts an automatic injunction in effect which prohibits both spouses from:
Note that the prohibited list of actions does not explicitly include canceling a power of attorney (POA), canceling joint credit cards, opening a new bank account and having one's paycheck deposited into the new account, or taking one's name off from utility or other bills connected with a residence where the other spouse is residing.
However, there is a heated debate amongst Colorado family law attorneys about whether the injunction prevents any of these actions. So while immediately canceling the POA is fine, before taking any irregular financial action, or closing off any joint accounts, consult with your Colorado divorce attorney to make sure the action is permitted, advisable, and also would not leave your spouse in the lurch (don't want to find out the credit card was canceled when driving in the middle of nowhere with three kids and no cash!)
Though the injunction does not explicitly prohibit transfers prior to service of process, don't do it. Every family lawyer has had a client who thought he/she could beat the system, and transferred the $30K mutual fund to a brother or other family member before filing, thinking no one would know, or that the Court could do about it. As indicated in the section on the division of marital property, such dissipation of marital assets invariably land that spouse in hot water.
Finally, as indicated above, the injunction only applies to dissolution of marriage and legal separation cases. It is a curious distinction, since an annulment case involves the property division issues as in a divorce, and a parent in an allocation of parental responsibilities case would not want to see the other parent move the child out of state while the case was pending. If you have a family law case not covered by the injunction, but have reason to believe the other party may remove the children from the state or dispose of joint assets, your Colorado family law attorney may be able to ask the court for a similar injunction as the case commences.
Many people assume that a Colorado annulment is simply an easy way to end a brief marriage. The reality is that a declaration of invalidity of marriage (the legal term for an "annulment" in Colorado) is a somewhat rare proceeding, and thanks to no-fault divorces, it is seldom easier than obtaining a divorce. And reading about celebrities annulling brief marriages in just a few days only fuels the misconception that any brief marriage can be ended by annulment.
From a practical perspective, there is no difference in outcome between an annulment and a dissolution in Colorado. The legal distinction is that in an annulment, the marriage effectively never happened, which may appeal to those who would rather avoid a divorce for religious reasons, or perhaps to reinstate benefits or payments lost when one party marries.
It’s harder to get an annulment in Colorado than a divorce, because simply proving that the marriage is broken is not sufficient. Instead, a spouse seeking a declaration of invalidity of marriage in Colorado must prove one of the specific legal grounds. Talk to a Colorado family law attorney who knows Colorado annulment laws to see if your case meets one of the following criteria outlined in C.R.S. 14-10-111(1):
a. A spouse lacked the mental capacity to consent at the time of the marriage (e.g. mental incapacity, drugs, or alcohol),
b. A spouse lacked the physical capacity to consummate the marriage (i.e. cannot have intercourse), and the other did not know this at the time of marriage,
c. A spouse was under the age to consent to marriage (18, or 16 with consent, for a marriage in Colorado) and did not have consent from parents, guardians, or a Colorado family law court to marry,
d. One spouse married in reliance on the other's fraudulent act or misrepresentation which went "to the essence of the marriage",
e. One or both spouses married under duress,
f. One or both spouses married as a jest or dare, or
g. The marriage was void due to: bigamy/polygamy, incest (ancestor & descendant, siblings, uncle/niece, or aunt/nephew), or any other reason under the laws of the place where the marriage was entered into.
There are very few reported cases on what constitutes sufficient grounds for an annulment, because the grounds are either black & white (e.g. whether a marriage was void), or the grounds were factual determinations for the trial court, and not overturned on appeal unless they were "clearly erroneous"). But there are a couple of cases that provide good examples of a fraud which goes to the “essence of the marriage.”
An annulment in Colorado must be initiated within the following timeframes, and only by the persons indicated:
The standard of proof in an annulment case is the same as most other civil matters - preponderance of the evidence (i.e. greater than 50%). In re: Marriage of Farr, 228 P.3d 267 (Colo. App. 2010). The Court of Appeals rejected the husband’s assertion that “clear and convincing evidence” was required, holding that a 1961 Colorado decision to the contrary was overturned by statute.
The procedures for a Colorado annulment are identical to those for a divorce or legal separation, except that there is no requirement that one spouse be a resident for 90 days prior to commencing the annulment, and there is no statutory 90-day waiting period between commencement and the decree of invalidity of marriage.
Pursuant to C.R.S. 14-10-111(7), if the marriage was entered into in Colorado, an annulment can be initiated at any time within the deadline period referenced above. If the marriage was entered into outside of Colorado, at least one of the spouses must have been a Colorado resident for 30 days prior to commencing the annulment proceedings.
However, except for the briefest of marriages not involving children, the Colorado family law court may still need to resolve issues pertaining to the division of marital property and debts, maintenance, and, if there are children, parenting rights and responsibilities and child support. So realistically, a contested annulment will take as long as a divorce or legal separation.
And even with an uncontested annulment, most people have less success than celebrities at finding a Colorado family law judge or magistrate who will grant an annulment as quickly as is popularly depicted.
Even though Colorado will invalidate a marriage, retroactive to the date it was entered into, any children born of the marriage are still considered legitimate. C.R.S. 14-10-111(4). But while this may have mattered in the past, these days one would be hard-pressed to find a statute which distinguished between children born in or out of wedlock.
“[T]he fraud of one party in inducing a marriage is dispositive. Property should not be divided in a manner that effectively treats the marriage as valid where doing so would reward the guilty party for his or her fraud.” In re: Marriage of Joel, 2012 COA 128. In the Joel case, a wife who fraudulently induced the husband to marry her was denied both maintenance and the award of any marital property, other than any property acquired due to her own financial contribution. Similarly, “if a party committed fraud in inducing another to enter into a marriage, an award of maintenance to that party would not be equitable or ‘just’.”
Pursuant to C.R.S. 14-10-122(2), an obligation to pay maintenance ends when the recipient spouse remarries. But what happens if that remarriage ends by annulment? The Colorado Supreme Court held that the prior maintenance obligation may be reinstated. In re: the Marriage of Cargill, 843 P.2d 1335 (Colo. 1993).
In Cargill, the spouses divorced after a 13-year marriage, and the husband had a 6-year maintenance obligation. The wife remarried 3 years later, and that remarriage ended by annulment one year later with the court finding that the wife’s new husband had committed fraud which went to the essence of the marriage.
The trial court had ordered the first husband’s maintenance obligation reinstated, but the Court of Appeals reversed that on the grounds that the word “remarriage” in C.R.S. 14-10-122(2) meant the act of remarrying, even if that remarriage ended by annulment.
A deeply-divided Colorado Supreme Court reversed the Court of Appeals, holding that “remarriage” did not mean simply going through the ceremony of marriage, but meant the status of being married. So if the remarriage ended by annulment, it was deemed to have never happened, and maintenance could be reinstated.
But reinstatement is not automatic, as the Court recognized that the first husband could have moved on, and made rational decisions based upon the expectation of no longer having a maintenance obligation. So instead, the family law judge is required to consider a variety of factors including the length of the second marriage, whether the annulment was proper or itself collusion between the spouses, whether the spouse was receiving maintenance from the invalidated second marriage, the parties’ financial circumstances, etc.
If a servicemember’s marriage is annuled because a marriage is simply voidable (mental capacity, fraud, jest/dare, etc), then the servicemember remains entitled to all BAH paid until the decree of declaration of invalidity of marriage. DOD Financial Management Regulation, Vol. 7A, Chapter 26, Para. 260403, and Table 26-7, Rule 3. In other words, the military will treat such an invalidated marriage the same as one which ended in divorce.
However, the situation is different for an annulment on the grounds that the marriage is void (bigamy, incest, etc). There, the entitlement to BAH ends upon the servicemember discovering that his/her spouse was still married at the time of the marriage, or was a prohibited family member. So any BAH paid between that time and the declaration of invalidity of marriage must be repaid. DOD Financial Management Regulation, Vol. 7A, Chapter 26, Para. 260403, and Table 26-7, Rule 4.
Additionally, BAH payments paid on the basis of a void marriage may be subject to repayment, unless the court finds that the servicemember entered the marriage in good faith, or the military investigates and determines that the servicemember entered it in good faith, and therefore “validates” the prior BAH payments. DOD Financial Management Regulation, Vol. 7A, Chapter 50, Para. 5006.
Under the Uniform Parentage Act, adopted in Colorado, either parent may file a petition to establish a father's paternity in Colorado. If the Colorado family law court finds the alleged father really is the child's father, then it will issue orders pertaining to parenting and financial rights and responsibilities. Colorado paternity is a complicated area, and the result depends upon a variety of issues, such as genetic testing, the name on the birth certificate, whether the mother is married to someone else, whether there has been an acknowledgment of paternity, the age of the child, etc.
If the El Paso County Child Support Enforcement Unit (or your local CSEU) is unable to assist (and while they help a parent establish paternity strictly for child support purposes, the CSEU cannot get involved in issues involving parenting rights and responsibilities), a Colorado family law attorney who knows paternity laws is indispensable.
Legally establishing Colorado paternity is a good idea, even if the parents get along. It cements the father's bond to his child and gives him legal rights. Should the parties disagree in the future, it ensures the parent with primary residential responsibility receives child support, and it allows the child to grow up with certain knowledge of who his/her parents are.
The parties can voluntarily execute a joint Acknowledgment of Paternity. This acknowledgment legally establishes the father's paternity, and is legally binding after 60 days have elapsed. Note that the acknowledgment itself does not establish a child support amount, custody rights or a parenting schedule - if the parties disagree on them, they will need a family law court order in Colorado.
In order to be on the birth certificate, Colorado requires a father who is not married to the child's mother to execute an acknowledgment of paternity. Since the practical effect may be the alleged father cannot later challenge paternity, think carefully before signing the form with smiley faces the nurse may bring at the hospital!
Colorado child support arrangements are similar to those in a Colorado divorce, legal separation, or annulment, with one important caveat: the obligor may have to pay back support retroactive to the child's birth, plus the child's birthing costs! Back support is mandatory to repay Colorado social services for payments, and at the discretion of the Colorado paternity court in other cases.
If you are a potential father served with a paternity summons, just like any other summons, do NOT ignore it. Doing so risks the Colorado family law court imposing a very one-sided decree against you, so contact a Colorado paternity lawyer if you have questions.
www.genelex.com. Information on paternity genetic testing.
Colorado has adopted the Uniform Parentage Act, codified at 19-4-101, et seq. Under that statute, and under the "Colorado long-arm statute" at C.R.S. 13-1-124, the Colorado paternity court has jurisdiction if the child or one of the parents lives in Colorado, and one of the following conditions is met:
Colorado paternity jurisdiction means Colorado can adjudge paternity, order the child's birth certificate changed, and order child support and birthing costs. Under the UCCJEA, only the child's home state can adjudicate custody and parenting issues. If Colorado is the child's home state, the Colorado paternity judge can also determine those parenting issues.
On May 29, 2008, Governor Ritter signed SB 08-183, Concerning the Effect of DNA Evidence of Nonparentage on Child-Related Orders, which modifies Colorado's adaptation of the Uniform Parentage Act.
The act changes C.R.S. 19-4-107.3 to provide for an order determining parentage to be set aside if:
A motion to set aside the parenting determination must be brought within two years of the determination. For orders entered before August 15, 2008, there is a two-year "open season", seemingly allowing an adjudicated father to challenge a paternity determination with a motion filed by August 15, 2010.
The right to reopen the parenting determination does not apply to:
The act also adds a subsection (6) to C.R.S. 14-10-122, providing that a man whose parenting determination has been set aside shall be relieved of his child support obligation for all installments accruing after the motion to set aside was filed, and may, in its option, set aside any child support arrears outstanding from prior to the motion being filed.
There is no provision to recoup support which the adjudicated father has paid prior to the motion to set aside being filed.//-->
Though not the most romantic concept in the world, a couple contemplating marriage in Colorado may enter into a prenuptial agreement, or a contract before marriage. Such agreements, though not common, are typically signed when one party has, or expects to have, substantial property or income. They address property and financial issues upon the couple's dissolution or legal separation, although Colorado divorce courts will not enforce prenuptial agreements in an annulment action, except as necessary to avoid injustice.
This firm does not draft prenuptial agreements, but if you are going through a dissolution and there is a prenuptial or a post-nuptial agreement, I will litigate whether the agreement is enforceable.
The requirements for a prenuptial agreement in Colorado are similar to a standard contract, with the following exceptions:
A prenuptial agreement may address the following issues:
Colorado will treat as void any provisions concerning children, such as child custody & visitation or child support. That's because the Colorado family law court is required to consider the best interests of the children at the time of divorce or legal separation, independent of any agreement between the parties.
A post-nuptial agreement in Colorado is identical to a prenuptial agreement in terms of what it may address. The difference is that the spouses are already married at the time the post-nuptial agreement is signed.
What separates this agreement from a separation agreement made while the parties are divorcing is that with a post-nuptial agreement the spouses have not filed for dissolution, nor is the agreement being signed in anticipation of a divorce. Instead, the purpose of a post-nuptial agreement is to preserve the marriage, albeit on new terms, not to dissolve it.
If the parties are preparing for a divorce, they should have a separation agreement, prepared in anticipation of divorce. A post-nuptial agreement which was prepared as part of the divorce process, rather than to preserve the marriage, may not be enforceable if a separation agreement should have been used instead.
If a couple divorcing in Colorado has a prenuptial agreement from another state, Colorado will generally enforce the agreement, providing that it followed the law of the state where it was created. Note that any maintenance provision is treated like a Colorado prenuptial agreement - it must not be unconscionable at the time of the Colorado divorce or legal separation.
This article is a brief overview of how bankruptcy may impact your family law case, and not a complete primer on bankruptcy. Note that this firm practices Colorado divorce & family law, not bankruptcy, so please consult with a bankruptcy attorney about the facts of your case for specific guidance. If one spouse is considering filing for bankruptcy, the other spouse needs to consult with a bankruptcy attorney for advice about the impact on that spouse.
For individuals, there are two primary types of bankruptcy:
If a debtor files for Chapter 7 bankruptcy, Colorado law provides that certain property is exempt from liquidation. If the debtor owns a home, then $60,000 of the equity is exempt (the "Homestead Exemption"), pursuant to C.R.S. 38-41-201.
Additionally, under C.R.S. 13-54-102, several items of property are exempt from liquidation. The most common ones are:
(a) Clothing, up to a value of $1500
(b) Watches & jewelry, up to a value of $2000.
(c) Photographs & books, up to a value of $1500.
(d) Burial Sites for the debtor plus each dependent.
(e) Household Goods, up to a value of $3000.
(f) Food & Fuel, up to a value of $600.
(h) Military Retirement
(j) Vehicles or Bicycles, up to a value of $5000 ($10,000 if elderly or disabled)
(l) Life Insurance Cash Surrender Value, up to $50,000.
(n) Personal Injury Claim Proceeds.
(s) IRA, 401(k) or pension plan
(u) Child Support or Maintenance Payments received.
For a complete list of exempt property, together with statutory references, see this handy chart on www.coloradobankruptcy.com. Note that the chart's citations are accurate, but the values contained in the chart are a bit out of date.
Upon filing a bankruptcy petition, an automatic stay goes into effect which prevents most collection actions against the debtor. however, there are exceptions which are important for family law: actions to establish paternity, start a dissolution, and to establish or modify a maintenance or child support obligation. 11 U.S. Code §362(b)(2)(A).
But note one important aspect of family support - the Colorado family law court can establish a support order, but not necessarily enforce it while bankruptcy is proceeding. Pursuant to §362(b)(2)(B), the stay only permits property which is NOT part of the bankruptcy estate to be attached for family support obligations. In the context of a Chapter 7 bankruptcy, this means the list of exempt property described above, plus and post-petition earnings.
With a Chapter 13 bankruptcy, no enforcement action to collect family support obligations is permitted while the bankruptcy is pending.
While the automatic stay restricts or prevents the enforcement of family support obligations while the bankruptcy is pending, the debtor's relief is only short-lived. Among the list of obligations which cannot be discharged in bankruptcy are a:
Colorado has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at C.R.S. 14-13-101, et seq. The statute provides that Colorado has jurisdiction to enter or modify parenting orders if one of the following conditions is met:
1. Colorado is the child's home state, which means the child has lived here with a parent or acting parent for the six-month period immediately preceding the filing of a Colorado child custody action (or for the child's life, if the child is less than six months old),
2. Colorado was the child's home state within six months prior to the filing of a custody action, and a parent/acting parent still lives in Colorado,
3. No other state has jurisdiction, or the child's home state has declined to exercise jurisdiction on the grounds that Colorado is a more convenient forum, and the child has a significant connection to Colorado,
4. Colorado initially entered parenting orders (e.g. a Colorado divorce or paternity action), and either the child or one of the parents has lived in Colorado continuously since then, or
5. Temporary emergency jurisdiction exists because the child is physically present in Colorado and has been abandoned or some other emergency, such as abuse, threatens the child.
Though one parent may have more parenting time than the other, generally under Colorado family law the parents share decision-making responsibilities over the children (sometimes referred to as "joint legal custody"). What that means is that neither parent can unilaterally make major decisions for the children - instead, the other parent must be consulted. Joint decision-making obviously works best when the parents share similar child-rearing values, and it helps if they get along.
Colorado child custody law defines major decisions as those affecting health, education, spiritual upbringing, and general welfare. So don't plan on home-schooling children, changing their religion, putting them in therapy, or having a child undergo elective surgery without the consent of the other parent. In an emergency, either parent can consent to necessary surgery or medical treatment, however.
The parent who the children are staying with at the time typically makes the day-to-day decisions regarding them, such as household hygiene & discipline, bedtimes, studying vs. television, etc.
It is difficult to share in major decision-making without information pertaining to the children. Colorado family law already guarantees the rights of parents to obtain medical, school, and other records. But without knowing who is providing services to the children, this right can be difficult to enforce. A well-written parenting plan should require the parents to provide each other with the contact information for any third party providing education, medical, therapeutic, or other services to the children, and execute any forms necessary so the other parent can independently obtain information.
The best time to address decision-making issues is when the parents are obtaining a divorce in Colorado. As an example, the parents may anticipate some of the issues which will arise, and set up rules in advance, such as what religion the children will be, whether they'll be educated in public or private schools, etc. The parents can also define any issue as a "major" issue requiring joint decision-making, such as exposure to firearms, the age to start driving or dating, body art & piercing, etc.
Finally, if the parents ultimately disagree, a Colorado parenting plan should contain a dispute resolution process to avoid the parents having to run to their divorce lawyers and the Colorado family law court every time a dispute arises. The dispute resolution may require consultation, but give one parent the ultimate decision in case of disagreement. Or it may solicit the assistance of a third party to act as a parenting coordinator, mediator, or even an arbitrator (akin to a private judge).
Under C.R.S. 14-10-131, a Colorado domestic relations court shall not modify decision-making responsibility absent a change in circumstances making the modification necessary to serve the best interests of the child. The standard for modifying decision-making responsibility is similar to modifying the majority parent - the established allocation of decision-making responsibility should be retained unless:
In every Colorado divorce, legal separation, annulment, or paternity case involving children, Colorado courts will consider the "best interests of the child" to determine Colorado child custody and visitation (the legal term in Colorado is "parenting rights and responsibilities"). On paper, Colorado family law is gender-neutral between the mother and father. That means that. under Colorado child custody laws, each parent theoretically has an equal opportunity of obtaining primary residential responsibility.
The reality of parenting time in Colorado is that mothers still tend to win more "custody battles" than fathers, but the playing field is more equal now than ever before. And the advantages mothers still have are really more a factor that they are more likely to have stayed at home or worked fewer hours than fathers. Black & Graham has obtained primary parental responsibility for fathers - generally in cases where the father fulfilled that role instead of the mother. The younger the children are, the more likely it is that the children will spend a majority of the time with one parent, rather than equally.
As a child gets older, he/she has more input into which parent exercises child custody in Colorado. However, the myth that a child over 12 decides which parent has custody in Colorado is just that - a myth. No child has an absolute say, though any parent with teenagers knows that they can be unmanageable if they do not live with the parent they choose.
Children are not property, and the standard is the best interests of the children, not the parents. Previously, most experts believed that it was in the best interests of children to have the stability of residing with one parent most of the time, and seeing the other parent less frequently. However, Colorado divorce courts are increasingly moving towards equal parenting time for each parent, particularly when children are of school age.
If parents live further apart, such as 1-4 hours away from each other, it would not be in the children's best interests to divide parenting equally (as an example, imagine the commute the child would have from a parent who lives in Denver going to a school in Colorado Springs). In this situation, the absent parent typically would have parenting every other weekend, a 2-4 week block of time in the summer, then divide the other vacations and major holidays equally. Typically, the parents divide the physical burden of driving the children between their residences equally.
When parents live in different states or countries, routine weekend parenting is generally not practicable, so the absent parent necessarily sees the child much less. Typically, that parent would have a larger block of the summer (most commonly half to two-thirds), then alternate spring, Thanksgiving, and winter/Christmas breaks. The parents would divide the costs of flying the children proportional to their incomes.
Bear in mind that the duration of the breaks may further be limited by the age of the children - since younger may develop more attachment to one parent, the parenting time may be shorter with preschool children.
Denver, Colorado Mediation Resources: Child Custody, Parenting Plans and Family Information. Consider mediation as an alternative to litigation, and the site has excellent information on parenting arrangements, including suggested parenting time schedules.
Connecting With Your Kids. An extremely detailed (243 pages, including forms) booklet highlighting the various laws and factors which affect parenting time, including sample plans, etc.
Custodysource.com. National child custody resource, with a very eclectic organization.
Under C.R.S. 14-10-129, the standard to modify child custody/visitation ("parenting time") in Colorado is generally whether the change is in the best interests of the children. However, if the requested modification would also change the majority residential parent, a Colorado court can only change it if new facts have arisen since the original decree, and:
A parent cannot file a motion to modify parenting time which also seeks to change the majority residential parent within two years after a prior motion to modify the majority parent has been ruled on, absent endangerment. C.R.S. 14-10-129(1.5).
A parent can seek, under C.R.S. 14-10-129(4), to restrict the other's parenting time by filing a motion alleging a child would be in imminent physical or emotional danger due to the parenting time. By filing the motion, the other's parenting time is automatically required to be supervised for a seven-day period, during which the court must hold a "forthwith" hearing and rule on the motion to restrict parenting.
If the court fails to conduct a hearing within seven days, the requirement that the other's parenting is restricted is automatically terminated. In re: Marriage of Slowinski & Pagnozzi, 05CA 2523 (Colo. App. 2008). If, at the hearing, the court concludes that the motion was substantially frivolous or vexatious, the court is require to impose attorney's fees on the person who filed it.
With today's increasingly mobile society, one of the most hotly-contested areas of post-divorce litigation in Colorado has become the issue of whether a parent can relocate out of Colorado with the children (also known as "removal from Colorado"). This is especially true in El Paso County, with its numerous military installations and tens of thousands of military personnel.
While a Colorado divorce or legal separation is pending, Colorado law prevents one party from removing the children from Colorado, even temporarily, without either permission from the other party or from the Colorado family law judge. Once a Colorado divorce has been granted, parties can take the children out-of-state for visits (unless prohibited by the decree), but permanent removal still takes permission - and that permission is increasingly hard to obtain.
In Colorado divorce, legal separation, annulment, and paternity cases involving children, the law concerning child custody & visitation has long recognized that the parents should not be geographically tied to one-another. Just as the parent without custody ("primary residential responsibility") is free to move at will, the parent with the children has traditionally been able to move as well. However, in those cases Colorado courts balance the right to move with the inevitable decrease in parenting time for the parent who remains in Colorado.
When the majority residential parent, or a co-equal parent with 50/50 parenting time seeks to relocate with the children to a location which substantially changes the geographical ties between the children and the other parent, under C.R.S. 14-10-129(1)(a)(II) the parent seeking relocation must, as soon as practicable, provide the other with:
Hearings on child relocation are given priority on the Colorado family law court's docket. At that hearing, the judge must decide whether the proposed relocation is in the children's best interests.
A recent Colorado Supreme Court decision, In re: the Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005), held that no presumptions in favor of either parent apply in a removal case. This means that there is no presumption that the child remains with the primary caregiver, which would place the burden on the other parent to try to stop the removal, and similarly, there is no presumption in favor of the parents remaining in close proximity, which would place the burden on the parent wishing to relocate.
There is a long list of factors in C.R.S. 14-10-129(2)(c) the court is required to consider at a removal hearing, including:
A relocation does not just mean moving out of state - any move which substantially changes the geographical ties between the child and the other party requires consent from the other party or permission from the court.
As an example, even a move from one suburb to another within the same metropolitan area could separate the parents by as much as 45 minutes or more. If both parents have overnights on school nights, it would result in either (1) the children having a lengthy commute twice per day when with one parent, or (2) one parent loses school-night overnights. Thus, this relocation would trigger the permission requirements of C.R.S. 14-10-129.
However, if the other parent only has weekend parenting, Colorado divorce courts are usually more lenient with requests to relocate within the state.
If a parent wishes to move the children to a new location as part of the initial custody determination, the Colorado family law court is required to accept where each party wants to live, then make appropriate parenting time decisions which are in the best interests of the children. Spahmer v. Gullette, 113 P.3d 158 (Colo. App. 2005).
What this means in plain English is that the Court cannot require a parent to live in a specific location, but must, in essence, pretend that the parent has already relocated to his/her desired location, then make an appropriate custody determination. So if, immediately upon a divorce or legal separation being completed, a parent wants to leave, it's not a relocation case, but simply part of the initial custody determination, and the only standard is best interests of the children. So the procedure and criteria outlined by C.R.S. 14-10-129 do not apply, and instead, the Court only considers the "best interests of the children" under C.R.S. 14-10-124.
ColoradoDivorceMediation.com has an excellent article on relocation.
To help prevent international parental kidnapping, since July 2001 federal law has required the consent of both parents for a child under 14 to obtain a passport. There are exceptions, such as proof of the other parent's death, a divorce or family law court order granting the applying parent sole custody, or a court order specifically permitting the applying parent to travel overseas with the child.
Note that this applies to all foreign travel, including visits, not just permanent relocations. How well enforced it is at our borders with Canada and Mexico, however, will likely vary.
A well-written parenting plan will address the issue of international travel and passports. Typically, a Colorado parenting plan grants to each parent the right to visit abroad with the children during that parent's parenting time, as long as they provide the other parent with an itinerary, and plenty of notice (at least a month, so that parent has the opportunity to challenge in court the wisdom of a spring break jaunt to the latest war zone as unsafe).
If the parenting plan does not address foreign travel, a parent who wants to visit overseas must act well in advance, contacting the other parent for consent. If that parent refuses, then the remedy is to request permission to travel overseas from the Colorado divorce or family law court which has jurisdiction over your case.
This is especially important to military personnel who have primary residential responsibility over their children. Unless the original decree of dissolution allows that parent to travel overseas with the children, upon notification of an overseas PCS he/she should contact the other parent as soon as possible for permission. If that parent refuses, the custodial parent must request an order from the Colorado divorce or family law court to apply for passports and move overseas with the children.
U.S. Department of State. Web site with information on bringing children abroad, and the forms to obtain passports for children.
The Colorado legislature has determined that children have the right to have determinations involving them be based upon the "best interests of the children". C.R.S. 14-10-123.4.
The problem is obvious - when the two parents who know the children best disagree, how is a stranger in a black robe supposed to know what is in the children's best interests? Simple - pass another law.
C.R.S. 14-10-124(1.5)(a) outlines the criteria to determine whether a parenting schedule is in a child's best interests:
C.R.S. 14-10-124(1.5)(b) outlines additional criteria, in addition to the criteria outlined above, for a court to consider when determining parental decision-making responsibility:
C.R.S. 14-10-124 prohibits courts from considering the following in determining the best interests of a child:
In contested parenting cases which are either higher-conflict, or involve deeper issues (an unfit parent, relocation, parental alienation, domestic violence, etc), the Colorado domestic relations court may appoint an expert to assist.
The expert may be intended to assist the parties - such as a parenting coordinator to help resolve disputes, or a decision-maker to actually decide contested issues. Or the experts could be intended to assist the Court in reaching a decision by investigating issues and making recommendations - such as a child & family investigator or a parental responsibilities evaluator.
In most cases, one of the lawyers will request the appointment of an expert, or the parties will agree to have one appointed. Less commonly, the Court will decide on its own to appoint an expert without being asked.
Typically, when the parents agree on a professional, the fees are divided proportional to incomes. When one party files a motion seeking the appointment of one, the Court may allocate the fees to that party initially (subject to reallocation at the actual hearing), or divide the fees between the parties.
PAGE UNDER CONSTRUCTION - MORE ARTICLES ON THE WAY SOON.
C.R.S. 14-10-116.5 authorizes the Colorado family law court to appoint a Child & Family Investigator (CFI), either upon request of one (or both) of the parties, or on its own.
In addition to the C.R.S. 14-10-116.5 referenced above, there are additional sources of guidelines applicable to CFIs:
Regardless of who requests the CFI appointment, the Court may apportion the CFI's fees and costs to both of the parties, or to one of them. If either of the parties is indigent, the state of Colorado may pay that party's fees under the state rate.
Section III of CJD 04-08 caps the CFI fees at $2000. If the fees are going to be higher than that, the CFI needs to go back to Court to justify what extraordinary circumstances exist, and the Court must enter a detailed order showing the specific special circumstances which justify the higher amount.
A CFI may be an attorney or a mental health professional, or anyone else with appropriate training acceptable to the Court. Mental health professionals are most common.
The 4th Judicial District has a set of minimum qualifications and standards which are even more specific, as well as a list of approved CFIs. (Note that in view of CJD 04-08 now capping fees at $2000, not only are the fees referenced out of date, but some of the providers may no longer provide CFI services).
The CFI is tasked with investigating, reporting, and making recommendations in the children's best interests on issues as specifically directed by the Court. As such, even if paid by one party, the CFI is effectively the neutral investigative arm of the Court, responsible to the Court, not to either parent. After issuing a report, the CFI may be called as a witness to testify.
Whereas a parental responsibilities evaluator can look into everything, the scope of the CFI investigation is limited to the specific issues in the appointment order).
As an "investigative arm of the Court", the CFI may not simultaneously serve in any role which could compromise that neutrality, such as a mediator, therapist, arbitrator, or later serve as a Child's Legal Representative (if the CFI is an attorney). Standard 4, CJD 04-08. However, the CFI may transition into a parent coordinator, decision-maker or arbitrator after conclusion of his/her role as CFI. Standard 5, CJD 04-08.
The CFI may not conduct psychological or drug/alcohol testing, but must instead report back to the Court and recommend such testing. Standard 13, CJD 04-08. Note that this is a new rule as of 2011 - prior to that it was typical for CFIs to perform such testing when deemed appropriate.
Should the parties or Court desire a more in-depth evaluation of the parenting issues, an expert must be appointed to conduct a parental responsibilities evaluation.
In 2012, the Colorado Assembly enacted S.B. 12-56, which amended C.R.S. 14-10-116.5 to require that a Child & Family Investigators (as well as other parenting professionals) must be a "neutral third person", and within 7 days of appointment, provide the parties, counsel and court with a disclosure of the nature of any familial, social, or financial relationship with a party, counsel, or judge.
The court may then, on its own, terminate the appointment, or either party may file an objection to the appointment within 7 days (or the objection is waived), and the court then has 7 additional days to confirm or terminate the appointment.
It is unclear what resulted in this legislation. In El Paso County, counsel and parenting professionals generally know each other fairly well, work together on a number of cases, attend similar conferences, etc. But those are normal professional relationships that would likely not trigger the disclosure requirement.
Finally, note that this obligation only applies to appointments after July 1, 2012.
Often, children are old enough to express their own views (typically, the opinion of teenagers matters more than younger children), and there are no psychological issues which need investigating. In such cases, having a lawyer appointed for the children may make more sense than having a psychologist appointed as a CFI or Parental Responsibilities Evaluator.
In cases with disputed parenting issues, either party may request, or the Court may, on its own, appoint a lawyer to serve as Child's Legal Representative, or CLR. The same person cannot serve both as CLR and as a CFI.
The Court may allocate the CLR costs to either party, or both of them.
A Child's Legal Representative is an attorney appointed pursuant to C.R.S. 14-10-116 to represent the best interests of the child. Note that the lawyer does not represent the child, but the child's "best interests".
Previously, a Guardian Ad Litem (GAL) was appointed to represent the children. But the CLR's client is the more nebulous concept of "best interests". While the distinction may seem subtle, imagine a 14 year-old who wants to live with his father, because his father has no curfew, lets him drink and smoke, and does not make him do his homework. While the child may want to live in that environment, it's hard to argue that it's actually in his best interests. The CLR may consider the child's wishes, but is not bound by them.
It's unusual to have such stark facts at the hypothetical just presented. More commonly, CLRs are appointed to speak for the children when the parents disagree about what the child wants.
The CLR actively participates in all aspects of the case, but unlike a CFI or a PRE, is not a neutral expert who can testify. Instead, as with any other attorney, at a hearing the CLR examines witnesses, and argues for a certain outcome.
However, once a CLR is appointed, he/she is "first among equals", and has a greater say on parenting time than one of the attorneys representing the parents. So a CLR can often work with all counsel to facilitate settlement, since the CLR's views are given greater weight.
In 2012, the Colorado Assembly enacted S.B. 12-56, which amended C.R.S. 14-10-116 to require that a Child's Legal Representative (as well as other parenting professionals) to provide, within 7 days of appointment, the parties, counsel and court with a disclosure of the nature of any familial, social, or financial relationship with a party, counsel, or judge.
The court may then, on its own, terminate the appointment, or either party may file an objection to the appointment within 7 days (or the objection is waived), and the court then has 7 additional days to confirm or terminate the appointment.
It is unclear what resulted in this legislation. In El Paso County, counsel and parenting professionals generally know each other fairly well, work together on a number of cases, attend similar conferences, etc. But those are normal professional relationships that would likely not trigger the disclosure requirement.
Finally, note that this obligation only applies to appointments after July 1, 2012.
Pursuant to C.R.S. 14-10-127, the Court may appoint an expert to conduct a parental responsibilities evaluation (PRE) which, as the name suggests, is a comprehensive parenting/custody evaluation. (This contrasts to a Child & Family Investigator (CFI), which is intended for a quick and inexpensive investigation of specific issues).
A PRE is typically used in higher-conflict custody cases, or where there are multiple issues which need investigating. Either party can request that one be appointed, or, less commonly, the Court may, on its own, direct that one be appointed.
C.R.S. 14-10-127 states that a Court "shall, upon motion of either party or upon its own motion, order the court probation department, any county or district social services department, or a licensed mental health professional qualified pursuant to subsection (4) of this section to perform an evaluation and file a written report concerning the disputed issues relating to the allocation of parental responsibilities for the child, unless such motion by either party is made for the purposes of delaying the proceedings."
While it appears from this language that Courts have very little discretion to reject the appointment of a PRE, the motion seeking the appointment must comply with the Court's case management order. So if a case has been pending for months, but a parent waits until the week, or even the month, before a hearing to request that a parental responsibilities evaluator be appointed, that request may well be denied.
C.R.S. 14-10-127(1) provides that the Court may order the reasonable charge for the evaluation to be assessed between the parties, although many judges will require the party requesting the appointment to pay initially, subject to allocation at a later hearing.
Costs depend upon the complexity of the case, who conducts the evaluation, and whether psychological evaluations are conducted. In El Paso County, one would typically pay about $3500 to $5500 for a parenting responsibilities evaluation.
The PRE must be a licensed mental health professional - this is a more restrictive requirement than that required to serve as a CFI, so not all CFIs would be qualified to serve as a PRE.
Furthermore, pursuant to C.R.S 14-10-127(4), the PRE must be qualified as competent by training an experience in such areas as the effects of divorce & remarriage on children, appropriate parenting techniques, child development, psychology, etc.
A typical PRE takes about 90 days to complete, and the actual process depends upon the policies of the specific PRE. By law, the PRE may consult anyone with information about the child, and refer the child to other professionals for diagnosis.
A PRE will typically meet with both parties individually at the outset, talk about the case, and give them questionnaires for the party and his/her collateral contacts (family members, teachers, day care providers, etc) to complete. The PRE will also meet with each party together with the child to observe parent-child interaction, and except with real young children, meet with the child individually.
Some PREs may do home visits, others may not unless there are concerns about a parent's home. Some PREs will talk to collateral contacts personally, whereas others will simply review the questionnaires. The PRE may review academic, medical, or therapy records, should they be relevant to the case, or recommend professional intervention, such as therapy.
A written report of the evaluation is due to the Court and parties at least 20 days before the hearing, and should include a description of the procedure, the data collected, a conclusion explaining how the recommendations were reached, and the actual recommendations.
The PRE may be called as a witness to testify at a hearing as to the evaluation.
A party who is dissatisfied with the initial evaluation may request that the Court appoint someone with the requisite qualifications to perform a supplemental evaluation, at that party's expense. The Court shall not order a supplemental evaluation, however, if any of the following applies:
In 2012, the Colorado Assembly enacted S.B. 12-56, which amended C.R.S. 14-10-127 to require that a Parental Responsibilities Evaluator (as well as other parenting professionals), within 7 days of appointment, provide the parties, counsel and court with a disclosure of the nature of any familial, social, or financial relationship with a party, counsel, or judge.
The court may then, on its own, terminate the appointment, or either party may file an objection to the appointment within 7 days (or the objection is waived), and the court then has 7 additional days to confirm or terminate the appointment.
It is unclear what resulted in this legislation. In El Paso County, counsel and parenting professionals generally know each other fairly well, work together on a number of cases, attend similar conferences, etc. But those are normal professional relationships that would likely not trigger the disclosure requirement.
Finally, note that this obligation only applies to appointments after July 1, 2012.
Colorado Marital Property
Colorado is a marital property state. That means that the "marital estate" will be divided equitably. C.R.S. 14-10-113. While in a community property state, the community property is divided equally, Colorado's division of marital property need not be exactly equal - just fair. In most cases, that will result in an equal division of the marital estate, but under C.R.S. 14-10-113(1) the Court will consider a variety of factors when determining a fair division, including:
In every Colorado divorce, legal separation or annulment case, the family law court will divide marital property and allocate responsibility for payment of debts incurred during the marriage.
Marital Property in General
Property acquired during marriage is generally marital property, regardless of how it is titled (with limited exceptions, as noted below).
Marital property includes any equity in a marital residence, stocks/mutual funds, retirement plans (including military retirement), bank accounts, the increase in value of one spouse's separate property, and tangible property such as vehicles and household goods. A Colorado divorce court will divide the marital property equitably (almost always means equally), based upon the value on the day of dissolution unless the parties agree otherwise.
Separate Property in General
Separate property is a surprisingly complicated concept. While one can point to a car, sofa, or painting, and say that one spouse owned it before marriage, so it is separate property, that's not the end of the analysis. Generally, property which either spouse brought into the marriage is the separate property of that spouse, however, consider numerous circumstances you'll need to discuss with your lawyer.
In every Colorado divorce, legal separation or annulment case, the family law court will divide marital property and allocate responsibility for payment of debts incurred during the marriage.
Property acquired during marriage is generally marital property, regardless of how it is titled (with limited exceptions, as noted below).
Marital property includes any equity in a marital residence, stocks/mutual funds, retirement plans (including military retirement), bank accounts, the increase in value of one spouse's separate property, and tangible property such as vehicles and household goods. A Colorado divorce court will divide the marital property equitably (almost always means equally), based upon the value on the day of dissolution unless the parties agree otherwise.
A spouse's separate property includes:
If the original property inherited has been invested or exchanged, the property thereby acquired remains separate property providing it can be traced, through a series of exchanges, to the original separate property. This can be extremely difficult if, e.g., one has an active stock portfolio which included constant reinvestments, splits, etc.
Titling separate property in joint names creates a presumption that the spouse who had the separate property intended to make a gift of it to the marital estate. This is one of the only instances where how property was titled matters for a divorce.
Finally, any increase in value of separate property is marital. As an example:
Pat owns a house at marriage worth $200,000, with a mortgage of $150,000. His separate property interest is the net equity, or $50,000.
Upon divorce, the house has appreciated to $300,000, and the mortgage has decreased to $100,000. The net equity is now $200,000.
The marital share is the increase in net equity ($50,000 to $200,000), or a total of $150,000.
Neither spouse may dissipate marital property once a party has filed for dissolution. Furthermore, if during the marriage one spouse improperly used marital property for non-marital purposes, a Colorado divorce court may "recapture" the value of that property into the marital estate. This means if $100,000 was improperly spent or wasted, the other spouse receives $100,000 from the marital estate, before the remainder is divided.
It is rare to see dissipation cases, since the purchases made during the marriage, even if they only benefited one spouse, are presumptively marital. So generally, one spouse's trips to Vegas will still be considered marital. But if a spouse bought expensive presents for a mistress, those would obviously not be marital, and subject to recapture.
If property may have been dissipated, or is just being hidden, your Colorado divorce attorney can help by tendering financial releases, Requests for Production of Documents, and Interrogatories. It should be possible to uncover improper transactions, at least in the previous few years.
If the parties cannot agree on the value of a marital asset, they may get it appraised. This is done most often with real estate (either a comparative market analysis from a real estate agent, or a full-blown appraisal), antiques, and business interests. Sometimes even household goods have to be appraised! Your Colorado divorce lawyer should have the names of appraisers, if needed (and, under new court rules, hopefully the two attorneys can agree on one appraiser).
The value of a business includes not only the "tangible" assets such as furniture and fixtures, but intangible assets such as accounts receivable, the value of work in progress, and "goodwill." Believe it or not, even a business with no assets has a value, as long as it generates a good revenue stream for its owner.
Marital debts are those debts either spouse incurs during marriage, again without regard to whose name the debt is in. Debts are also allocated equitably in Colorado, which may result in an allocation which is equal, one where the higher income earner assumes a greater responsibility, or one where the party who incurred the debt incurs a greater responsibility.
Kelley Blue Book. Indispensable tool for calculating vehicle values.
Yahoo Finance. Find current and historical stock values.
At dissolution, one spouse has $40,000 of student loans incurred during the marriage, and is still in school, so that amount is only going to increase. What is the court to do?
There are two considerations - is the student loan a marital debt, and what impact does it have on maintenance?
Upon dividing the marital estate, the trial court is required to allocate the marital estate equitably. C.R.S. 14-10-113. Debts are in the nature of a property division. In re: Marriage of Booker, 811 P.2d 405 (Colo.App.1990), rev'd on other grounds, 833 P.2d 734 (Colo.1992).
The seminal case on the characterization of student loans is In re: Marriage of Speirs, 956 P.2d 622 (Colo. App. 1997). There, the wife earned a law degree during marriage, incurring $54,000 of student loans in the process. The husband unsuccessfully argued that because the wife’s degree was not a marital asset, In re: Marriage of Olar, 747 P.2d 676 (Colo. 1987), any debt incurred to attain that non-marital assets should be hers alone.
The Court of Appeals found that a spouse’s pursuit of higher education is often the common goal of both spouses during marriage, and both spouses expected to share in the rewards of the degree. Moreover, it is not unusual for student loan proceeds to provide general support for the family, beyond covering educational expenses. Accordingly, the court held that student loans incurred during marriage are indeed marital.
In 2016, the Court of Appeals revisited the issue of student loans in a case concerning the characterization of loans incurred by a wife after separation, but before the decree of dissolution. In re: Marriage of Morton, 2016 COA 1.
The trial court had found that the wife’s $33,000 of student loan debt incurred after separation was her own debt, and she should be responsible for paying it. The Court of Appeals found this to be an abuse of discretion, citing both Speirs and In re: Marriage of Burford, 26 P.3d 550, 560 (Colo. App. 2001) to hold all debt incurred prior to dissolution is marital debt, including student loans incurred after the spouses separated.
Yes. Colorado law provides that marital debts must be allocated equitably, not necessarily equally. C.R.S. 14-10-113. This means the division must be fair. But unlike most debts incurred during marriage where both spouses likely benefited in some way from the proceeds, as pointed out above an educational degree earned during marriage is not marital property.
While a spouse who earned a degree during marriage likely had a higher earning capacity which directly benefited the other spouse, that is only indirectly true in the context of a degree earned near the end of marriage or after dissolution.
A degree should enhance earning capacity, so if the spouses have children, then the family as a whole benefits from the higher earnings of the spouse who earned the degree. And that means the spouse with the degree pays more child support (if the child support obligor), or receives less support (if the child support obligee). The same is true with respect to maintenance - the spouse who earned the degree will have higher earnings, which will either (1) increase that spouse’s ability to pay maintenance, or (2) diminish that spouse’s need for maintenance from the other.
While a degree earned after divorce still confers some benefit on the other spouse, it is undeniable that the bulk of the benefit will flow to the spouse with the degree. For that reason, a court may conclude that it is equitable to allocate more of that student loan debt to the spouse who will most directly benefit.
The Speirs court, while holding that student loans incurred during marriage were marital debt, nonetheless pointed out that its holding does not preclude a court from awarding the debt to the spouse who actually incurred it. Speirs, 956 P.2d at 624. And the court upheld the trial court allocating $37,000 of the $54,000 debt solely to the Wife. See also Morton, 2016 COA ¶ 9 (“The determination that a student loan is marital debt, however, does not foreclose a trial court from allocating responsibility for payment of the loan entirely to the party who incurred it.”)
The Colorado maintenance statute sets forth a number of factors the court is required to consider when determining a maintenance award, among them the parties’ “financial resources.” C.R.S. 14-10-114.
In the Morton case, the trial court had considered the wife’s ready access to additional student loans as a financial resource that diminished her need for maintenance. The Court of Appeals reversed, holding that: “that term [financial resources] cannot reasonably be understood to include loan proceeds.” 2016 COA 1 ¶ 18.
The reasoning is simple - taking out a loan is a zero sum game: “it would be misleading to consider loan proceeds as a financial resource unless the court also considers the associated liability, in which case (and in virtually every case) the net asset value is zero.” 2016 COA ¶ 23. As the court pointed out, a spouse can almost always borrow money, for instance from credit cards, and requiring a spouse to go into debt would run afoul of the rule that a spouse cannot be required to deplete his/her share of the marital estate in order to qualify for maintenance. In re: Marriage of Yates, 148 P.3d 309, 313 (Colo. App. 2006).
401(k) plans are the most common retirement plans offered by private employers, having surpassed the traditional defined benefit plans long ago. Just like with an IRA, a Colorado divorce court can divide a 401(k) between the spouses, again without regard for which spouse was the employee and which was not. And it is also not a taxable event, nor one for which an early withdrawal penalty applies.
Unlike an IRA, however, the division of a 401(k) requires a separate court order, called a Qualified Domestic Relations Order, or QDRO. Samples are usually available from the plan administrator upon request, however great care should be taken when completing them - you not only have to comply with the plan requirements, but also with the specific provisions of the Colorado divorce decree.
Once divided, the non-employee spouse owns his/her interest in the 401(k), which then grows separately from the employee's portion. However, while the employee spouse can continue investing in his/her portion, the non-employee spouse former spouse may have to rollover the 401(k) into a different plan which allows investments.
PERA, or Colorado's Public Employees' Retirement Association, is the pension plan covering most government employees in Colorado. Public employees essentially opt out of the social security system, and instead pay into PERA and receive employer matching.
PERA consists of two components: a defined benefit pension plan, and a 401(k).
Defined Benefit PERA
This is the traditional PERA. Unlike a 401(k) or IRAs, where the employee has a fund with money invested in it which is readily ascertainable (they're called "defined contribution plans"), PERA is a "defined benefit plan". Under PERA, the employer pledges to pay a specific monthly stipend upon retirement, depending upon employee's years of service, salary, and age at retirement.
Once defined benefit plans were the most common retirement plans around, now they are most often seen with public employees or large corporate employers.
A Colorado divorce court can divide PERA, and allocate benefits to the non-employee spouse. PERA even has a deceptively simple fill-in-the-blank order for the family law attorneys to fill out for the judge's signature. However, there is a strict 90-day deadline from the date of the decree of dissolution for PERA to receive the order, signed by the judge. And PERA will reject the form if it contains the slightest of mistakes. So make sure your Colorado divorce lawyer is diligent, and pays attention to detail.
When a defined benefit plan is divided, the non-employee spouse will receive his/her portion of the retirement benefits only when the employee-spouse receives his/her benefits.
PERA is typically divided using the time-rule formula - months of marriage overlapping the employment divided by the employee's total months of employment at the time of retirement. And be careful if you have unique situations, such as an employee who purchased additional PERA time during the marriage - that's where having a Colorado Springs family law attorney who knows what he/she is doing will help.
PERA also contains a traditional 401(k) component to it, which employees may voluntarily participate in. This is similar in concept to any other 401(k) plan, except that attorneys will need to use the standard PERA agreement and order to divide it, just as with the defined benefit component of PERA.
Divorce/Domestic Relations Orders - straight from PERA, a helpful page with information, and links to publications explaining how to divide PERA, as well as the model agreement and order to divide PERA.
One of the most common methods of saving for retirements, IRAs also have penalties for early withdrawal. However, in a Colroado divorce or legal separation, a division of property is simply awarding a spouse his/her property interest, even though the account may be in the other spouse's name. That means that transferring the IRA between spouses pursuant to a divorce court order is NOT a taxable event.
Regardless of whether an IRA is a Roth IRA or a Traditional IRA, the method of division is the same. To allocate a portion of an IRA to the spouse who is not named on the account, the Colorado divorce court order should specify either the dollar amount owing to that spouse, or the percentage of the IRA owing to that spouse. The advantage (or disadvantage) of using a percentage is that the spouse will share in any increases or suffer any decrease in value if the value of the IRA has changed between the date of the decree of dissolution of marriage and the actual division of the account.
Example: At dissolution, the IRA is worth $10,000, and each spouse is awarded 50%. The lawyer forgets to advise the clients how to divide the retirement (neither client used Black & Graham!), so several months later when the IRA is finally divided, it has appreciated in value to $15,000. Each spouse now gets $7500, rather than $5000. Of course, the same is true in reverse, should the IRA decrease in value.
Typically, fund management companies will require a copy of the court order allocating some or all of an IRA to the other spouse, along with their own form, usually signed with a medallion signature guarantee (not simply a notary - think of it as a "super notary"), which formally transfers the IRA.
Federal law (42 U.S. Code §407(a)) prohibits states from dividing Social Security benefits. In In re: the Marriage of Morehouse, the Colorado Court of Appeals ruled that Social Security benefits are not marital property which can be divided. The divorce court had put a value on the husband's right to receive social security, and awarded the wife extra marital property to compensate her for the value of the husband's anticipated social security benefits. Awarding a spouse the exact present value of social security benefits constituted an improper offset of the social security benefits, which was tantamount to dividing the social security itself.
The court did not prohibit Colorado divorce courts from considering the right to receive social security benefits entirely. On the contrary, the potential that one spouse may have a financially secure retirement is a "relevant economic circumstance" a trial court may consider when trying to fashion an equitable division of property, similar to one spouse receiving an inheritance or having a greater earning capacity. This means that while a dollar-for-dollar offset is impermissible, Social Security benefits are not entirely invisible to a Colorado divorce court.
A spouse who is not otherwise entitled to Social Security can receive social security benefits on his/her former spouse's record as long as the claimant spouse was married to that spouse for at least 10 years, is at least 62, and is unremarried (a remarriage terminated by death, divorce or annulment generally restores that spouse's entitlement).
Generally, property settlements are not modifiable after 6 months has passed. So if one party got a bad deal at divorce, that party is stuck with it. There are exceptions - if a party committed fraud or deliberately concealed an asset, the decree may be modifiable for up to five years. And the decree itself may allow for modification, if the parties both agreed to it at the time of the Colorado dissolution.
Introduction to Stock Options
Some companies offer their employees stock options as part of the compensation package. A typical employee stock option has the following components:
Example - if at the vesting date the employee has an option to purchase 1000 shares of the company at $30 each, and the shares are being publicly traded at $40 each, the value of the option on that date is $10 per share, or $10,000 total.
As a Colorado court once put it, an employee stock option is simply "a contractual right to purchase stock during a specified period at a predetermined price." In re: the Marriage of Miller, 915 P.2d 1314 (Colo. 1996).
A complete explanation of stock options, and of the various complex methods of valuation, is beyond the scope of this article. But for more information, Wikipedia has a good article on Employee Stock Options.
Colorado Division of Employee Stock Options
Though most employee stock options are non-transferable, they are still a marital asset which can be divided by the Colorado domestic relations judge. But the question which has resulted in much litigation is when they are subject to division - when earned, when vested, when exercised, etc.
In Colorado, an "employee stock option constitutes property for the purposes of dissolution proceedings only when the employee has an enforceable right to the options." In re: the Marriage of Balanson, 25 P.3d 28 (Colo. 2001).
What does this mean? Not whether the options are presently exercisable (usually they won't be, since the option typically vests in the future), but whether they are presently "enforceable". This means looking at what conditions the employee must satisfy to "earn" the vesting - if it's a signing bonus, then it's enforceable when joining the company. But if it's based upon future performance, then the option may not yet be enforceable, or only be partially-enforceable. E.g. if at the time of dissolution the employee is one year into a 5 year employment period required for the options to vest, then 20% of the options would be marital.
Note also that options which are awarded after-the-fact based upon a prior job well done are not enforceable until actually awarded. In re: the Marriage of Powell, 220 P.3d 952 (Colo. App. 2009). While an employee may have an expectancy that options will later be awarded, until they are actually formally awarded, they are not divisible property. But like most bright-line rules, the results may not make perfect sense. An option awarded during the marriage based upon work performed prior to the marriage is divisible marital property, and consequently an option awarded after the marriage for work done during the marriage is not a divisible asset.
The sworn financial statement form (JDF 1111) approved by the Colorado Supreme Court requires the spouses to disclose their "Accrued Paid Leave (sick, vacation, personal)", and then to put on a supporting schedule the value of that leave. In some cases, this could be substantial - e.g. an employee who earns $240,000 per year, or $20,000 per month, and has accrued a month of paid leave, potentially has an additional $20,000 asset.
The Colorado Supreme Court held that accrued vacation is marital property only when there’s a right to cash it out: “where a spouse has an enforceable right to be paid for accrued vacation or sick leave, as established by an employment agreement or policy, such accrued leave earned during the marriage is marital property for purposes of the UDMA.” In re Marriage of Cardona & Castro, 2014 CO 3, ¶ 2.
How the accrued time is treated depends upon whether the value can be ascertained: “Where the value of such leave at the time of dissolution can be reasonably ascertained, it must be equitably divided as part of the marital estate. However, in the event that a court cannot reasonably ascertain the value of such leave at the time of dissolution, the court should consider a spouse’s right to such leave as an economic circumstance of the parties when equitably dividing the marital estate.” Cardona, at ¶ 2.
“Where an employee has an enforceable right to receive payment for accrued leave under an employment agreement or policy, the employee has a vested interest in that compensation when it is earned. Importantly, this enforceable right is a fixed interest that is not converted to a mere expectancy simply because the employee may elect to receive this compensation in the form of time off instead of a cash payment. In other words, the time off is itself “compensation” that has value.” Cardona, at ¶ 29.
In Cardona, the wife ultimately lost because she failed to put on evidence that the husband had the right to cash in his leave (husband’s testimony that he “thinks” he could was only a guess, so was insufficient), and also failed to put on evidence as to value (her attorney’s calculation multiplied husband’s hourly rate by his accrued hours, but that failed to take into consideration that some employers may split vacation vs. sick leave vs. personal leave, some employers allow accrued leave to roll over, whereas others have a “use it or lose it” approach, some employers may limit when leave can be cashed in, etc). Cardona, at ¶ 33.
The bottom line? “Whether an employee has an enforceable right to be paid for accrued leave will depend on the terms of any agreement between the employee and the employer.” Cardona, at ¶ 30.
PRACTICE POINTER: Reviewing the pay stub to determine how many hours of accrued leave a party has is the beginning of the inquiry, not the end. Requesting a copy of the spouse’s employment agreement of office manual is critical to prove both (1) right to cash in the leave, and (2) value of the accrued leave. Without the agreement/manual, the court cannot speculate that there is any property interest in the accrued hours.
If one spouse is in the military, he/she has the right to cash in accrued military leave in some circumstances, such as when leaving active duty, or when an enlisted person reenlists. If one of those circumstances applies, then the Colorado domestic relations judge is more likely to treat the leave as a divisible asset. See the article on Cashing in Military Leave in the Military Divorce Guide for more information on a servicemember's rights to cash in leave.
No doubt about it - pets are very important to a lot of families, and often regarded as an integral part of the family. For couples with kids, child custody arrangements mean the kids will also be separated from their pets. And couples without kids may well think of their cats or dogs as quasi-children.
America is a pet nation. Americans spend about $60bn per year on their pets, and recent surveys showing that almost 2/3 of households have pets (which includes not just cats & dogs, but fish, birds, reptiles, etc). Most of those households consider their pets to be a member of the family, analogous to children.
We get it - most of us here at Black & Graham have pets as well.
But the law doesn't get it. There is no Colorado law setting forth a standard on how to treat pets in a divorce proceeding. Period. No statute, and no reported cases.
The majority rule in the U.S., including Colorado, is summed up in the words of one treatise: "At common law, people have a martial right to property and this includes the right to ownership, control and absolute possession of pets." Even though some municipalities may enact companionship ordinances which refer to pet owners "guardians," divorce is a state, not a local issue, so those ordinances have no impact.
A 2016 decision from the Queen’s Bench for Saskatchewan in Canada opened with these words, evidencing an understanding of the special status pets enjoy: "Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live." Henderson v. Henderson, 2016 SKQB 282.
After this encouraging start, the judge then spent 15 pages analyzing the law to support his legal conclusion: "My present task is not to act with emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply the law. And for legal purposes, there can be no doubt: Dogs are property."
Pets are not children to the court, but just another item in dispute, albeit a very sentimental one that generates strong feelings. In other words, a pet is chattel, property that is to be divided as part of the marital estate, along with retirement accounts, furniture and photographs. Since the judge lacks the authority to order a pet visitation schedule, you're not going to get a canine custody hearing.
And a judge has no practical way of knowing which spouse "deserves" the pet. I’ve heard anecdotally of a case where a judge, in an effort to find out which spouse the pet was more attached to, summoned the dog into his courtroom to see which one the dog ran to first. And in some versions of the story, the spouse who "won" had cheated by having bacon in his pocket. This is probably just a legal urban myth.
More credibly, there have been cases where judges, with an abundance of time and patience, have allowed a little time for evidence of who picked out the pet, which spouse primarily took care of the pet, i.e. who took the pet to the vet, groomers, etc. And other times, when the children reside primarily with one parent, the judge may well award the family pet the house where the children live.
In January 2017, Alaska made headlines with a law to treat pets more like children, the first in the nation to do so. House Bill 147 amended Alaska law, and now provides:
The Alaska law is still too new to know how it will impact cases, and while a full-blown cat custody case is unlikely, it sounds like courts will at least hear evidence as to which spouse the pet is better off with.
As indicated, Alaska is a trailblazer. While American judges recognize that pets have a special status, they are already overwhelmed with child custody and other disputes in domestic relations proceedings, so do not entertain pet disputes.
In the absence of a court granting a pet custody hearing, what can spouses with pet disputes do? Two options come to mind:
Under C.R.S. 19-1-117, a grandparent can petition a Colorado family law court for reasonable grandchild visitation rights in the following situations:
There is no automatic right to grandparent visitation - the Colorado family law court must find that it is in the best interests of the child to have grandparent visitation. And, once granted, Colorado grandparent visitation may be modified or terminated if it is in the best interests of the child. Note that this is not the end of the inquiry, however - see the next article on Colorado Grandparent Rights Legal Standards for important cases interpreting the "best interests" standard.
Finally, Colorado grandparent rights and visitation are terminated by the child's adoption, or termination of the parental rights of the child's parent who is the child of the grandparent.
In February 2005, the Colorado Court of Appeals issued a ruling, In the Matter of D.C. and D.C., 04CA0249 (Colo. App. 2005) which reiterated that a grandparent in Colorado could not seek visitation with grandchildren when both of the children's natural parents were alive and there had been no prior Colorado family court actions.
The grandparent argued that the family was not intact, since the children lived with their mother, and not the father. However, the absence of a court action was fatal to that argument. Citing the Troxel decision, the Court of Appeals stated: "[T]he statute ensures that grandparent visitation decisions made by parents of intact families, where there has been no prior court intervention, are not challenged."
Grandparent visitation rights were thrown into a state of confusion by the U.S. Supreme Court. In a 2000 case, Troxel v. Granville, 530 U.S. 57 (2000), the Court ruled that states which allowed grandparents visitation rights against the wishes of a child's parent violated the Constitutional right of a parent to raise the child. Bottom line - fit parents are presumed to be acting in their child's best interests, and while family law judges may order grandparent visitation, they must give due deference to the wishes of the child's parents.
There have been multiple cases litigated at the Colorado Court of Appeals and Colorado Supreme Court over the past decade struggling with how to apply the Troxeldecision. And the legal standards changed every time a different court issued an opinion.
The definitive word on grandparent visitation in Colorado came from the Colorado Supreme Court in a 2006 decision, In re: Adoption of C.A., 137 P.3d 318 (Colo. 2006). There, the Court stated that "a dispute between parents and grandparents regarding grandparent visitation is not a contest between equals." On the contrary, the Court could only order grandparent visitation after adhering to the following requirements:
"Clear and convincing evidence" is a high burden. While not as hard to meet as the "beyond a reasonable doubt" standard required in criminal cases, it's more than the preponderance of the evidence standard typically required in civil cases. One civil jury instruction describes it as follows:
"The clear and convincing standard requires evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof. To be clear and convincing, the evidence must be so clear as to leave no substantial doubt and be sufficiently strong to command the unhesitating assent of every reasonable mind."
What does this mean? While grandparent visitation is not technically dead in Colorado, it's far from easy. In my own experience, it's harder now than ever for grandparents to obtain visitation rights in Colorado, and whether they do depends a lot upon the individual judge assigned to the case.
Reasonably, unless the grandparents have had a major role in the child's life, and have uncontroverted evidence that the parent is acting unreasonably in denying visitation, seeking grandparent rights may be an expensive, and losing, proposition.
Though not strictly speaking a means of obtaining grandparent visitation, grandparents today often end up raising their grandchildren, and may seek to obtain physical care (the term Colorado uses for "custody") over them.
There are three primary avenues through which a grandparent in Colorado may obtain custody over a grandchild:
Colorado grandparent custody rights are not automatic. Rather, like a parent seeking custody, the Colorado family law judge must determine first whether the grandparent would be a suitable custodian. Courts may consider any credible evidence of past child abuse or neglect by the grandparent in determining whether to award custody.
In Colorado divorce, legal separation and annulment cases, the family law judge will determine whether to award one spouse alimony (called "maintenance" in Colorado, and also known as "spousal support").
Alimony is intended to assist a spouse who lacks sufficient property to provide for his/her reasonable needs, and is unable to support himself/herself through employment. There is no automatic right to alimony in Colorado, even if one spouse needs it. Rather, the Colorado divorce court will look at a variety of factors set out in C.R.S. 14-10-114, such as the parties' standard of living before the marriage, and the other spouse's ability to pay before deciding whether alimony is appropriate under Colorado law.
Generally, the longer the marriage, the more likely the court is to award alimony in Colorado. Though there is no set standard, spouses married just a couple of years do not often receive maintenance upon divorce in Colorado. If the marriage was long enough (typically at least 20 years or more), the Colorado divorce judge may even award one spouse lifetime alimony. Maintenance in Colorado is terminated by the death of either party, or the remarriage of the spouse receiving alimony.
There is a presumed level of temporary alimony in Colorado, in cases where a couple's combined gross annual income is under $75,000. Unless evidence shows a different amount is warranted, at a temporary orders hearing the Colorado family law magistrate will award maintenance equal to 40% of the higher income earner's gross monthly income minus 50% of the lower income earner's gross monthly income. This Colorado alimony formula applies regardless of the length of the marriage.
Example: Pat earns $4000 per month, and Jan earns $1500 per month. Pat's presumptive temporary maintenance payment will be $850 ($1600 - $750) per month, until the permanent orders hearing.
For couples where the combined gross annual income exceeds $75,000, there is no set standard for temporary alimony in Colorado, and instead the courts are supposed to utilize the factors set out for post-dissolution maintenance (see section below). Note that this creates less predictability - while some Colorado divorce magistrates may use the 40% minus 50% formula as a starting point, other magistrates will disregard it altogether.
When the family law judge is considering what maintenance should be payable after a dissolution, there is no formula to guide him/her. Instead, Colorado divorce law sets out the factors to consider when determining an award, including the following:
(a) The financial resources of the party seeking maintenance, including marital property apportioned to such party, and the party's ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and that party's future earning capacity;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age and the physical and emotional 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.
What does all of this mean? It depends upon the judge. In the absence of specific numerical guidance, some judges are more generous than others when it comes to maintenance, and the size of the award then depends in part upon the "luck of the draw", i.e. which family law judge was randomly assigned to hear the case.
Finally, note that Colorado divorce law is consistently no-fault. C.R.S. 14-10-114(4) requires that maintenance be determined "without regard to marital misconduct."
Often during a marriage, one spouse may not be fully and gainfully employed, and instead may be a homemaker, work part-time, or simply be capable of working in a higher capacity than his/her current employment.
These common situations further complicate the maintenance picture, as the court considers whether to impute minimum wage to a non-working spouse or whether to impute a higher income for the purposes of establishing a maintenance award.
As a result of Amendment 42, which was approved by Colorado voters in November 2006, the Colorado minimum wage as of January 1, 2008 is $7.02 per hour ($1217 per month), or $3.83 per hour for tipped employees. This figure will be increased annually in accordance with the Denver-Boulder-Greeley consumer price index.
Imputing income, as the term suggests, means pretending that a spouse earns a different income than the spouse actually earns. Whether to impute income depends upon a variety of factors, such as the expectations established during the marriage, whether a spouse could be earning more, the availability of suitable employment, whether the spouse has sought more lucrative employment, etc.
Resolving the issues is not easy, and maintenance is often the most contested issue in a dissolution case, and may involve a vocational assessment to determine a spouse's "employability", proof of a job search for suitable employment, or other evidence your Colorado divorce lawyer can discuss with you.
When a Colorado divorce court awards alimony, this shifts the tax burden from the paying spouse to the recipient spouse (note this is for maintenance only, and not child support). Depending upon the facts of a case, the premiums on life insurance ordered by a Colorado divorce court may also be deductible.
Unless the divorce decree restricts a court's authority to review Colorado alimony ("maintenance"), under C.R.S. 14-10-122 the standard for modification of Colorado maintenance is whether there has been a substantial and continuing change in circumstances which renders the original amount unfair. A Colorado divorce court will look at all circumstances in determining this, but even if it now would have awarded a different amount, that is not sufficient to modify the decree - the original amount must now be unconscionable.
The parties, however, can agree at the time of dissolution that maintenance cannot be modified for any reason, or that it may be modified with a more relaxed standard. Finally, they may agree that maintenance shall be reviewed upon the occurrence of a specific event (e.g. one party's retirement).
In every Colorado divorce, legal separation, annulment or paternity case involving children, the Colorado family law court will determine whether one parent owes the other child support under Colorado child support law (C.R.S. 14-10-115).
The starting point for child support calculations in Colorado is the gross (pretax) incomes of each parent. Generally, this is calculated by looking not only at pay stubs, but investments, retirements, social security, etc. Note that if one party has remarried, the income of the new spouse does not count for child support in Colorado, and is even protected from discovery by the other party.
Once the parents' incomes have been hammered down, that does not end the analysis for Colorado state child support. Numerous issues affect Colorado child support, such as the costs of day care, health insurance, support for children born before the children at issue, and extraordinary medical or other expenses.
Child support law in Colorado can get complicated when both parents are not in full-time, salaried positions. As an example, if a party is self-employed, the Colorado family law court must analyze what business expenses are legitimate (and they are not necessarily the same deductions as the IRS may allow).
Other complications under Colorado state child support law are the uncommon situations where the children are divided between the parents households - one lives with the mother, and another with the father. Child support in Colorado is not simply a wash - instead, it requires calculating multiple Colorado child support worksheets, taking care not to duplicate expenses on each, which are then offset against one another.
Colorado divorce courts may not allow the parties to waive child support altogether, even if both agree. But generally deviations from the Colorado Child Support Guidelines are permissible for good cause.
If a party is unemployed or underemployed, Colorado child support law may impute income to a person who took a job in bad faith to shirk his/her child support obligations (i.e. pretend that the party earns more than he/she really earns). People v. Martinez, 69 P.3d 1029 (Colo. 2003). An extreme example of that would be a neurosurgeon working at a gas station, thereby working way below his/her potential income level.
At a minimum, an able-bodied parent should expect to have minimum wage imputed to him/her, unless that parent is in school or the stay-at-home parent caring for a child of the parties who is under 30 months.
As a result of Amendment 42, which was approved by Colorado voters in November 2006, the Colorado minimum wage as of January 1, 2007 is $7.02 per hour ($1217 per month). This figure will be increased annually in accordance with the Denver-Boulder-Greeley consumer price index.
You can calculate your own Colorado child support on these sites, but remember these caveats - first, they may not be up to date with statutory changes in child support law in Colorado, so treat them as estimates. And also, while they might work for simple cases, unless you have the assistance of a Colorado divorce or family law attorney, you may miss a factor or miscalculate the totals.
www.courts.state.co.us. Colorado child support calculator in MS Excel format, from the Colorado Supreme Court. Very comprehensive, and considers the common factors which impact child support in Colorado.
In Colorado, the child support obligation is a fixed monthly amount, constant throughout the year, even when the children are staying with the obligor. However, Colorado support law gives credit, in the form of reduced child support, to the obligor in situations involving "shared physical custody", defined as 93 overnights or more per year. That means if one parent has 92 or fewer overnights, he/she receives no credit for the time spent with the children.
The practical effect of this, however, is that a parent without primary residential responsibility who lives in another state is unlikely to reach 93 overnights, and therefore receives no credit under the child support law in Colorado for time spent with the children.
Colorado family law judges will order one parent to pay child support to the other, but does not give the obligor any ability to control how the money is spent. Fair or not, Colorado child support law simply presumes, without the right to question, that child support is spent on the children.
Colorado state child support law also prohibits in-kind support, so the obligor cannot buy diapers, toys, or even give the children money directly and count it as support. Rather, Colorado family law courts treat such expenses as gifts to the children, which parents are expected to do anyway.
Unless the parents agree otherwise, Colorado child support law provides that the expenses of transporting the children from one parent to the other are allocated in accordance with their proportional incomes. A good parenting plan will include not only this provision, but will also address the physical burden (i.e. who drives which half of the journey, or who escorts the children on flights).
Unreimbursed medical expenses should also be addressed. Child support law in Colorado typically divides routine expenses (co-pays, infrequent medical assistance) in accordance with the parties proportional incomes, after the parent receiving support has paid the first $250 per child per calendar year.
If medical expenses are regular and recurring, they may be considered extraordinary expenses, and factored into the Colorado child support worksheet.
Finally, in very limited circumstances a Colorado divorce or family law court may order the payment of other expenses, such as private education or extracurricular activities. But these situations are rare - typically, Colorado courts cannot order payment for extracurricular expenses, children's vehicle expenses, etc.
The child support obligation in Colorado is owing until the child's emancipation, which is generally the earliest of the child turning 19, marrying, joining the military, or graduating from high school and becoming self-sufficient, or death.
In rare cases, child support may extend beyond the child's 19th birthday, such as the child still being in high school or equivalent (support continues until the month after graduation), or the child being physically or mentally unable to support himself or herself (in which case a court may continue support indefinitely).
For child support orders entered after July 1, 1997, the support obligation terminates automatically once the last child reaches 19 absent court order to the contrary. C.R.S. 14-10-115(1.6). But be careful before trying to take advantage of automatic termination - it does not apply to these situations:
Formerly, Colorado divorce and family law courts could order child support to continue while a child was in college, and even order payment of college expenses. After many legislative changes in the 1990s, the end result is that a Colorado court no longer has the authority to order payment towards college expenses, unless the parents have voluntarily written such a provision into their parenting plan.
If the parents have a Colorado decree adopted before July 1, 1997 which requires college expenses to be paid, that clause is no longer enforceable as written unless it was the result of the parties' voluntary agreement. However, even if not enforceable as written, the Colorado divorce or family law court has discretion to order limited contributions towards college expenses (just tuition, books & fees, but not room & board) until the child is 21.
This issue is experiencing an increase in litigation, as children who were of pre-school age when their parents divorced in the late 1980s through June 1997 are beginning to enter college.
The obligee cannot link parenting time to receipt of child support, or deny visitation to a "deadbeat" parent. Thus, if the obligor is behind in payments, other enforcement methods must be used.
In case of arrears, and even modifications in some instances, the obligee may wish to contact the local Child Support Enforcement Unit (CSEU). For a nominal $25 fee (far cheaper than hiring a private Colorado child support lawyer), the CSEU child support lawyers will help pursue the obligor and enforce payment of both the arrears and current support. The CSEU has some enforcement measures not available to private attorneys, such as revoking drivers' licenses, attaching tax returns, or even revoking professional occupational licenses. The downsides, though, are that the CSEU can take a year or more to navigate through their bureaucracy, and they do not collect interest on arrears.
An alternative, which is likely quicker, and has the additional benefit of collecting not only the arrears, but the statutory 12% interest, is to retain a private Colorado child support attorney. We can assist with some effective mechanisms such as contempt of court proceedings (where the family law judge threatens to throw the obligor in jail unless he/she pays), an income assignment, or even putting a lien on the other party's residence!
But the obligee should never expect immediate results - Colorado domestic relations courts are swamped, so individual cases take months to filter through the system.
Child support is not tax-deductible (unlike maintenance).
Unless the parties otherwise agree, upon request the Colorado child support law requires courts to allocate the children's tax dependency exemptions in accordance with the parties' proportional incomes. In order for the noncustodial parent to claim the exemptions, he/she must be current with that year's support obligation, and the parent with majority residential responsibility should execute an IRS Form 8332.
, for enforcing Colorado child support arrears, and modification or paternity issues.
Colorado Family Support Registry A centralized registry through which Colorado child support and maintenance may be paid. Using this method means Colorado will track child support payments, and protect both parties if a dispute arises as to what was paid.
Colorado has adopted the Uniform Interstate Family Support Act (UIFSA), codified at C.R.S. 14-5-101, et seq. That act allows Colorado divorce and family law courts to establish a child support order against a non-resident parent if one of the following conditions is met:
Once a Colorado family law court has acquired jurisdiction to adjudicate child support, it retains continuing, exclusive jurisdiction to modify its order if Colorado remains the residence of the child or one of the parents, or if the parents consent to Colorado exercising continuing jurisdiction.
The standard to modify Colorado child support under C.R.S. 14-10-122 is that there has been a "substantial and continuing" change in circumstances, which means there would be at least a 10% difference in the child support owing. The parties cannot agree to make child support non-modifiable, though they do have flexibility to incorporate either an automatic modification provision, or clauses which make modification more difficult.
Typically, factors which lead to a Colorado child support modification include a significant change in income, reduced day care costs as the children get older, a changed parenting schedule, or fewer supported children when one emancipates. Having a child from a new relationship after the children covered by the support order cannot reduce support, however it can help to prevent a support increase.
The Colorado family law court will ordinarily modify child support retroactive to the date the motion to modify support was filed, unless:
The tax exemption allocation is also subject to modification - even if the decree assigns the exemptions a certain way. Unless the parties agree otherwise at the time child support is modified, a Colorado divorce court is required to reallocate the tax exemptions in accordance with their proportional incomes.
Support terminates automatically under Colorado law (C.R.S. 14-10-115(13)(a)), without the need to file a motion to terminate support, upon the last or only child reaching 19 years of age, unless:
Note that the automatic termination provision is only for the last child reaching 19. If there are still younger children for whom support is being paid, the obligor cannot unilaterally stop, or even modify, the support. Instead, he/she must file a motion to modify the child support obligation based upon there being fewer children to support.
The Colorado Family Support Registry (FSR) (https://childsupport.state.co.us) is a central registry that is maintained and operated by the state Department of Human Services to collect and disburse court ordered child support (child support combined with spousal support), child support arrears and/or child support debt. FSR’s sole purpose is to process and track these support payments, as well as protect the parties should a dispute over the payments arise. FSR is also responsible for address changes, payment inquiries and payment records. (C.R.S. 26-13-114)
When a domestic relations case that involves children (divorce, allocation of parental responsibilities, etc.), is initially filed with the Court, a FSR account number is generated and can be found at the top of the receipt (see example receipt that reflects the FSR account number) that is provided at the time of filing the case (this receipt also reflects the initial filing fees paid). If that number is lost, it can be obtained by contacting the Court Clerk or the division that the case is/was held in; if your case is pending in El Paso County, the Court Clerk’s main line is 719-452-5000. This number can also be obtained by contacting the Court Child Support Enforcement Unit (CSEU) at 719-457-6331 or, toll free, at 866-270-2606.
Once the court enters orders that require support payments be processed through FSR and all of the required information is provided on the order (required information is all of the parties names, social security numbers and addresses), you will receive a “new account notice letter” from FSR (See example new account notice letter from FSR), which will again provide the FSR account number. Support payments will not be remitted through FSR until they have received notification from the Court regarding its order. The Court has 7-10 days from the date of the Support Order to notify that FSR division that support payments are to go through them. Until the FSR account is properly established, the Obligor (the one whom is ordered to pay the support) must continue to send the payments directly to the Obligee (the one whom is owed the support).
After the new account notice letter has been received, the parties can set up an online FSR account by going to www.childsupport.state.co.us. A separate letter will be sent with a password that will be required for viewing this online account. The online account allows the parties to review the account summary (for example, the date and amount of the last payment made and the disbursement method), as well as the disbursement history. This online account also allows the parties to download and print a complete record of all disbursements.
Support payments that are being paid through FSR are accurately recorded (alleviating the need to track the payments that are made or received directly from the Obligee) and all payment details are easily accessible. Once a FSR account has been established, this information can be accessed by contacting the local FSR unit, Monday-Friday from 8:00 am to 6:00 pm at 1-800-374-6558, by email at CDHS_FSRCustomerService@state.co.us, or by logging in to your account on the FSR website.
If the CSEU becomes involved in your case to enforce the court ordered support obligation, it will be required that all payments be submitted through FSR. The FSR will ensure the payments are being made and that the Obligor receives credit for all payments that have been made. If the CSEU is not involved (referred to as “Registry Only” Accounts or Non IV-D accounts), the Obligee has the option to elect their support payments be remitted through FSR.
The FSR accepts checks, money orders, automatic withdrawals (EFT’s), pay-by- phone, direct deposit, and they also offer a FSR card as options to both make and receive payments. DO NOT SEND CASH!!!
When making a support payment by check or money order, be sure to make it payable to Family Support Registry. The FSR account number, Obligor’s name, court case number and the amount remitted must be included. Be sure to also enclose the payment coupons that are provided by FSR. These payments should be sent to FSR at PO Box 2171, Denver, CO 80201-2171 (Overnight Express or drop off to FSR at PMB 262, 1550 Larimer St., Denver, CO 80202-1610.
Automatic withdrawals allow for support payments to be paid on a regular schedule by withdrawing the funds from a bank account. There are no fees for this service and this option prevents the inconvenience of mailing a check or money order. Automatic withdrawals also guarantees that the payments are always received on time. FSR can stop these payments with 3 days advance written notice. This notice can be sent by fax to FSR, Attn: Financial Services at 303-299-9122 or PO Box 2171, Denver, CO 80201-2171.
Payment by phone is similar to the automatic withdrawal, except that the Obligor decides when to submit the support payments. FSR will record the Obligor’s bank information and will issue a personal PIN. Contact the ‘Interactive Voice Response Unit’ at 303-299-9123 or 800-374-6558 to make payments. Payments can be made up to 30 days in advance.
For “Registry Only” accounts or Non IV-D accounts, FSR will provide payment coupons to the Obligor to help insure accurate and timely processing by the FSR. However, it is the responsibility of the Obligor to ensure that the payments are made with or without the payment coupons. These payment coupons will be sent to the Obligor within two weeks after the FSR account is set up. FSR will continue to provide payment coupons so long as the Obligor returns the coupons with the payments. If the Obligor does not return the payment coupons with their payment, FSR will stop providing the payment coupons.
Instead of FSR mailing the support payments to the Obligee, they can deposit the funds electronically into the Obligee’s bank account. This option saves the Obligee the time and inconvenience of having to take a check or money order to the bank.
The FSR Card is a more convenient way to receive support payments. The support payments are automatically deposited directly to the FSR Card. The FSR Card is like a debit card and can be used for services anywhere that VISA is accepted.
An application must be completed for each payment method, except for payments that are made by check or money order. These applications can be found at https://childsupport.state.co.us.
Payments that are received through the FSR, with the account number included, are typically processed the same business day and are typically disbursed the following business day. If the support payments are disbursed by direct deposit, the deposit is typically available within 2 business days.
If a support payment has not been received and the case is being enforced by the CSEU, contact CSEU for help. If this is a Non IV-D account, contact the Obligor or the Obligor’s employer.
Please always ensure you have your FSR account number available anytime you contact the FSR regarding your account.
A civil protection, also known as a restraining order, is requested by an individual seeking to prevent contact (the protected party) from another party (the restrained party). They may be sought by an individual in a domestic relationship, i.e. boyfriend/girlfriend, husband/wife or a non-domestic relationship, i.e. neighbors, work colleagues, parents/children. There are various consequences to the retrained party when a Temporary or Permanent Protection Order is entered. See http://www.colorado-criminal-law.com/colorado-civil-protection-orders/civil-protection-order-consequences.htm
This article focuses specifically on Civil Protection Orders and their role in a domestic relations case (i.e. divorce or allocation of parental responsibilities). It’s important to understand the consequences of a civil protection being entered between a couple divorcing reach not only to the couple but also their children.
The first step is for the party seeking the restraining order (the protected party) is to file a Verified Complaint/Motion for a Temporary Protection Order. All the forms necessary to complete a request for a protection order may be found on the Colorado Judicial Branch website under the ‘Forms’. (See: http://www.courts.state.co.us/Forms/Index.cfm). The party seeking to be protected needs to complete the Verified Compliant, listing pertinent information such as:
*Practicing Point: If an attorney’s information is listed on the Verified Complaint/Motion for Temporary Protection Order filed by the protected party, that attorney will be expected to appear at the hearing for a Temporary Protection Order.
Once the complaint has been filed with the Court the protected party will appear in front of a District Court Magistrate, usually the same day. This hearing is generally held ex parte, meaning the party sought to be restrained is not present. The Magistrate will ask a few, limited questions specifically whether the protected party is in imminent (immediate) fear for their safety. Where the Magistrate finds an immediate danger exists and the protection order is needed to: prevent assaults and threatened bodily harm, domestic abuse, emotion abuse of the elderly or of an at-risk adult, sexual assault or abuse and/or stalking, a Temporary Protection Order will be entered.
Once entered, the protected party is responsible for having the Temporary Protection Order personally served on the restrained party. Personal service is achieved when the Temporary Protection Order and accompanying documents are personally handed to the named restrained party by a disinterested third-party over the age of 18. Colorado Rules of Civil Procedure (C.R.C.P.) Rule 4This happens most commonly with the assistance of the El Paso County Sheriff Department, as the protected may apply to their office for personal service upon the restrained party.
A Temporary Protection Order takes immediate effect upon service. The restrained party is immediately prohibited from contacting any person listed a protected party and from going within 100 feet of any cited addresses. The Court sets a hearing on making the Temporary Protection Order permanent within 14 days of entering the Temporary Protection Order.
Not only can a spouse seek a Temporary Protection through the Civil Court as outlined above, they may also seek the same protection order from the District Court hearing their divorce action. Pursuant to C.R.S. §13-14-104.5(5)“Any district court, in an action commenced under the “Uniform Dissolution of Marriage Act”…shall have authority to issue temporary and permanent protection orders pursuant to the provisions of subsection (1) of this section.” (outlined above)
The spouse seeking the protection order files a motion with the Court with a verified (sworn under oath, in the presence of a notary) affidavit detailing the reasons the protection order being requested and is necessary in preserving the safety of the named protected parties such as the parties’ minor children.
Where a protection order becomes necessary in a divorce action, the named protected parties generally includes not only the soon-to-be-ex but the parties’ children as well. The result being the restrained party is prohibited from seeing his/her children until the next court appearance at which time the Court may opt to modify the Temporary Protection Order. Another practical effect is the restrained party is prohibited from being with 100 feet of the parties’ marital home, if that address is listed on the protection order.
In some cases, cross-complaint Protection Orders becomes an issue. This scenario results when both spouses seek, and are granted protections orders against the other spouse. Cross-complaint Protection Orders are usually rare as parties’ are required to disclose any on-going protection orders when seeking their own from the Court. Therefore, when the seeking party comes before the Magistrate, they are already aware of any protection orders involving the named parties that may be currently pending.
At the first hearing after the Temporary Protection Order is entered the Court will address how to proceed with the children who are named protected parties. The Civil Protection Order court has jurisdiction to enter orders regarding the minor child for 120 days. After the 120 day mark, jurisdiction falls to the domestic court or, if there is not domestic case pending there are no court orders regarding the children at all. Depending on the severity of the allegations raised in the Complaint specifically, whether the children witnesses the incident or were victims themselves, the Civil Protection Court will try to establish some contact for the restrained party. Where the children witnessed the incident or were themselves victims the Civil Protection Court may allow for supervised parenting time through CASA. (http://www.casappr.org/programs/supervised-exchange-parenting-time-sept/) The parties may be ordered to share the cost of these visitations or one party may be ordered to shoulder the entire cost.
Where the allegations do not directly involve the minor children the Civil Protection Court may be more likely to modify the Temporary Protection Order to allow some communication between the parties regarding the children. The Civil Protection Court cannot enter orders regarding parenting time however, if the parties are able to agree on parenting time, the Civil Protection Court can modify the Temporary Protection Order to allow contact for those exchanges.
After the Temporary Protection Order is entered the Court sets a hearing to make the Temporary Protection Order a Permanent Protection Order within 14 days. At that time the Temporary Protection Order may either enter or be dismissed by default or after the Court has heard evidence.
Default proceedings occur when one of the parties fails to appear at the hearing. *Practicing Point: the Civil Protection docket at the El Paso County Judicial Complex begins promptly at 8:30 a.m. A few minutes prior the court clerk opens the doors to the courtroom and instructs parties there for a restraining order to enter the courtroom and not leave. When the Judge takes the bench she will begin calling cases. If the one of the parties is not there when the case is called the Judge will generally wait 15 minutes and recall the case. When the case is recalled and one of the parties is still not present the Court will proceed with a default hearing.
If the protected party fails to appear for the initial Permanent Protection Order hearing the Court will dismiss the action without prejudice. This allows the protected party to re-file if they wish. At the time the Temporary Protection order is dismissed all the restraints attached are dismissed as well. If the restrained party fails to appear for the initial hearing the Court will enter the Permanent Protection order without any admission by the restrained party. A copy of the Permanent Protection order will be mailed to the restrained party at the address listed on the Temporary Protection order.
C.R.S. §13-14-106(1)(b) outlines two the requirements for a continuance. Each party is permitted one continuance for no more than 2 weeks (14 days) where the party can show good cause for the continuance. (See C.R.S. §13-14-106 (1)(b)) Good cause warranting a continuance generally includes a party’s need to retain counsel, have evidence ready for presentation and witnesses ready to testify. When a 2 week continuance is granted it is imperative to be ready for the hearing at the next appearance as the Court is unlikely to grant further time to prepare for hearing.
In some cases, where the parties agree to a continuance of the permanent restraining order hearing, the Court may allow for more than 2 weeks. The Court can continue the hearing up to one year if the Court “finds the continuance would be in the best interests of the parties and if both parties are present at the hearing and agree to the continuance.” C.R.S. §13-14-106(1)(b) during this one year period the Temporary Restraining Order and it’s restrictions remain in place. This continuance can sometimes work to the benefit of both parties. It gives the protected party piece of mind of no immediate contact with the restrained party. It gives the restrained party an opportunity to show there is no further need for a restraining order as long as there is no contact between the parties.
Permanent, as it relates to protection orders, does not mean forever under Colorado law. After a permanent protection order is entered it may be modified and/or terminated. C.R.S. §13-14-108details how the protected party or the restrained party may seek the modification or termination of a permanent restraining order.
Divorce. When the court enters orders regarding civil protection orders, temporary or permanent, they are subject to orders entered regarding the same subject matter under the Uniform Dissolution Act (see C.R.S. §14-10-101et. all), the Uniform Child-Custody Jurisdiction and Enforcement Act (see C.R.S. §14-13-101et. all) or the Colorado Children’s Code (see C.R.S. Title 19)
Let’s say, Husband and Wife have filed for divorce and prior to filing Wife sought and was granted a Temporary Protection Order against Husband. Husband and Wife have two children, Barry and Gina who have also been named on Wife’s Temporary Protection Order as ‘protected parties’. At temporary orders the domestic court, pursuant to the Uniform Dissolution Act, orders Husband will have parenting time with Barry and Gina. This order takes the place of the civil protection order listing Barry and Gina as ‘protected’ parties.
Nothing under C.R.S. §13-14-108 prohibits the protected party from seeking the modification or termination of the protection order at any time. Modifications can include but are limited to, how long the protection order remains in place, what places the restrained party is prohibited from going to and the dismissal of the temporary protection order.
The restrained party may seek the modification and or termination of a permanent protection order. There are a few more elements the restrained party needs to demonstrate before the Court grants their request.
Time Frame:A restrained party may apply for a modification, including the dismissal of the permanent protection order, within in two (2) years of the permanent protection order being entered. Further, where the restrained party files for a motion to modify, whether or not that motion is granted, the restrained party may not file another motion to modify or dismiss within two (2) years after the disposition of the prior motion. (See C.R.S. §13-14-108(2)(b))
Other criminal charges: The Court may not modify or dismiss the permanent protection order where “the restrained party has been convicted of or plead guilty to any misdemeanor or any felony against the protected person, other than the original offense, if any, that formed the basis for the issuance of the protection order.” (See C.R.S. §13-14-108(3)(a)(I))
Going back to Hypothetical 1, let’s say the basis for Wife’s complaint in seeking the temporary protection order was a claim of domestic violence against Husband. (See Assault Charges in Colorado Springs) Husband is charged with and pleads guilty to domestic violence in criminal court. This guilty plea does not preclude Husband from seeking the dismissal of the permanent protection order as the charge was the basis of Wife’s complaint.
However, if the charge of domestic violence between Wife and Husband came after the protection order was entered, the Court would not be permitted to modify or dismiss the protection order.
Filing the Motion: The restrained party must submit with their motion to modify/terminate the protection order the results of a finger-based criminal history record check. The criminal history check “must include a review of the state and federal criminal history records maintained by the Colorado Bureau of Investigation and the Federal Bureau of Investigation.” (See C.R.S. §13-14-108(3)(b)) This check must be conducted within ninety (90) days prior to filing the motion.
The motion to be filed by the restrained party must be personally served upon the named protected party. The rules for service are governed by the Colorado Rules of Civil Procedure; Rule 4(e) (See C.R.C.P. Chapter 1, Rule 4) Personal service is easily completed by having a process server, or the El Paso County Sheriff hand delivering a copy of the motion upon the protected party.
The Court looks at a number of factors in determining whether the restrained party’s request to modify or terminate the permanent protection order should be granted. The restrained party has to show by “preponderance of the evidence” (i.e. more likely than not), that a modification or termination is appropriate. Factors considered by the Court are outlined in C.R.S. §13-14-108(6)(a – j), and include:
After careful consideration of these factors the Magistrate will make findings if, by the preponderance of the evidence it is appropriate to modify or dismiss the permanent protection order.
Links to: Colorado Bureau of Investigation Fingerprint-Based Criminal History Check: http://www.colorado.gov/cs/Satellite/CDPS-CBIMain/CBON/1251622155214
Federal Bureau of Investigation Fingerprint-Based Criminal History Check: http://www.fbi.gov/about-us/cjis/criminal-history-summary-checks/submitting-a-criminal-history-summary-request-to-the-fbi
Uniform Matrimonial & Family Laws Locator at Cornell. Find out which states have adopted the UCCJEA, UIFSA, etc, and where the statutes are.
Colorado Courts Home Page. Has information on the judicial system, and click on "Forms and Self Help" to access forms and information on Colorado divorce laws, paternity, child custody, and other areas.
4th Judicial District Courts Home Page. Covers El Paso and Teller Counties. Search for records, pay fines, see judge biographies, and learn about the self-help center where you can obtain instructions and forms for divorce in Colorado Springs, as well as other areas of Colorado law.
Free Colorado Divorce Forms, at the Colorado Center for Divorce Mediation, contains the most frequently-used Colorado Family law forms available for download.
WomansDivorce.com. Divorce information and resources for women covering the divorce process, with articles on child custody and support, separation, and mediation, as well as advice for coping with divorce and starting over.
ourfamilywizard.com. Provides families with secure online tools to help with coordinating schedules and important family information.
Over the past 20 years, same-sex marriage has exploded. Initially, it was a “hot potato” issue that politicians shied away from and only the courts would touch, though in more recent years voters and state legislators have brought same-sex marriages into the mainstream.
In 1996, as a reaction to Hawaii's pending legalization of same-sex marriages, Congress passed the Defense of Marriage Act (DOMA), which codified two provisions into federal law:
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife." 1 U.S. Code §7. This means that the federal government will not recognize any marriage other than one between one man and one woman, regardless of whether a gay/lesbian couple is legally married under the laws of their state.”
“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. 28 U.S. Code §1738C. This section therefore authorizes states to not recognize as valid same-sex marriages performed elsewhere.”
In recent years, DOMA has been rejected by several federal district and appellate courts, and in June 2013, the U.S. Supreme Court issued a decision in United States v. Windsor overturning §3 of DOMA which barred federal benefits to same-sex couples who are legally married under state law.
In 2006, Colorado voters passed, by 55-45, Amendment 43, which added a new section 31 to Article II of the Colorado Constitution, reading: “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”
C.R.S. 14-2-104(1)(b) similarly prohibits same-sex marriages between gay or lesbian couples, by specifying that a marriage is between one man and one woman.
There have been several attempts in recent years to create additional protections for same-sex couples, starting in 2006. The same year voters defined marriage as a male/female union, they defeated, by a narrower 53% to 47%, a ballot initiative which would have authorized domestic partnerships (a precursor to civil unions, but much more limited).
In 2009, the legislature enacted the Colorado Designated Beneficiary Act which, like a power of attorney, would effectively let a couple contract to hold property jointly, make end-of-life decisions, etc. Notably absent from this first step, however, is the right to be covered by health insurance, owing obligations to the other (such as maintenance), and therefore, a dissolution process to end such a contract. For more information, see Designated Beneficiary Agreements in the Colorado Divorce & Family Law Guide.
Until 2013, a couple with an out-of-state civil union or same-sex marriage could not dissolve their relationship in Colorado, because C.R.S. 14-2-104(2) does not recognize a valid a same-sex marriage performed outside of Colorado. However, with the enactment of the civil union statute, such marriages are treated as civil unions here, and may be dissolved under Colorado’s Uniform Dissolution of Marriage Act. For more information, see the Dissolving a Civil Union article in the Colorado Divorce & Family Law Guide.
In May 2012, a bill to establish civil unions in Colorado in 2012 died on procedural grounds, even though it had majority support in the Colorado legislature. Finally in 2013, Colorado passed the Colorado Civil Union Act which gives same-sex couples most of the rights of a married couple under state law (except for joint tax filings), but no federal rights thanks to current federal law.
In 2013, Colorado finally enacted the Colorado Civil Union Act, which creates civil unions and grants to same-sex partners most, but not all, of the rights of married couples. For more information, see the Colorado Civil Unions article in the Colorado Divorce & Family Law Guide.
Wikipedia has an exhaustive article on the Defense of Marriage Act, including its legal challenges.
Colorado has legalized civil unions, and for virtually every purpose under state law, a couple in a civil union has the rights and benefits of a married couple.
In March 2013, the Colorado governor signed into law SB 13-011, the Colorado Civil Union Act, which added a new Article 15 to Title 14 of the Colorado Revised Statutes. Colorado has now become one of the growing number of states (18, as of March 2013) that provides for either same-sex marriages, or civil unions.
During the 1990s, some cities in Colorado began enacting domestic partnership registries, but they did not provide any meaningful rights to same-sex partners.
In 2006, the voters rejected 53-47 the “Colorado Domestic Partnership Benefits and Responsibilities Act of 2006”, which would have established domestic partnerships, a more modest version of civil unions.
That same year, voters also approved Amendment 43 (http://en.wikipedia.org/wiki/Colorado_Amendment_43_(2006)), which modified the Colorado Constitution to provide that a marriage was a union between a man and a woman.
In 2009, the Colorado legislature enacted the Colorado Designated Beneficiary Act, created a legal status which falls far short of a marriage or civil union. For more information, see the Designated Beneficiary Agreements article in the Colorado Divorce & Family Law Guide.
A bill to establish civil unions in Colorado died on procedural grounds in the Colorado Assembly in 2012, after passing the Senate, and the three House committees which were required to approve the legislation. As the bill had majority support among legislators, observers correctly predicted that the next legislative session would see civil unions finally legalized.
“Civil Union” means a relationship established by two eligible persons pursuant to this article that entitled them to receive the benefits and protections and be subject to the responsibilities of spouses.” C.R.S. 14-15-103.
In other words, a civil union is tantamount to a marriage, but because Amendment 43 defined marriage as a male/female union, it could not be called a “marriage”.
Colorado Civil Union Act, an excellent article in the July 2013 Colorado Lawyer by Angela Forss Schmit and Kim Willoughby, reprinted here.
Wikipedia article on Colorado civil unions.
C.R.S. 14-15-104(1) sets forth the requirements to enter into a civil union - essentially, the same as for a marriage, except for the gender issue:
(a) Adult, regardless of gender. (And C.R.S. 14-15-106(1)(a) clarifies this as 18 years or older).
(b) Neither party is already in a civil union.
(c) Neither party is married to another.
Moreover, C.R.S. 14-15-105 prohibits the same incest relationships as are prohibited for marriage - no civil unions with an ancestor or descendant, a brother or sister, an uncle or aunt, or a niece/nephew.
The procedure to enter into a civil union is similar to that of a marriage:
The El Paso County Clerk & Recorder has a useful web page on civil unions which sets forth the exact requirements, fees, and has links to the necessary forms.
The civil union statute recognizes as a civil union relationships from other states which are substantially similar to civil unions, regardless of moniker, such as same-sex marriages, civil unions, domestic partnerships, etc. C.R.S. 14-15-116.
As a civil union is a superset of the rights granted by a designated beneficiary agreement, these agreements are likely to fade into obscurity.
Moreover, entering into a civil union automatically revokes a designated partnership agreement of either party. C.R.S. 15-22-111.
For more information about Designated Beneficiary Agreements, see the Designated Beneficiary Agreements article in the Colorado Divorce & Family Law Guide.
Per C.R.S. 14-15-107, the parties to a civil union have “all the rights, benefits, protections, duties, obligations, responsibilities, and other incidents under law as are granted to or imposed upon spouses.”
In other words, with only a couple of exceptions highlighted below, a civil union partner is married in all but name. See C.R.S. 14-15-107 for the complete list of rights and responsibilities, but here are some of the highlights:
Spouse/Family Definition. The definition of immediate family member now includes a civil union partner. C.R.S. 2-4-401. This is an important “catch-all”, as the term is used throughout the Colorado Revised Statutes, and means that a civil union partner is now treated as family. C.R.S. 14-15-107 further states that “spouse” includes a civil union partner.
Employment Benefits. A “partner in a civil union” is now in the same category as spouse, and may receive benefits such as workers’ compensation, health care, survivor benefits, unemployment, family medical leave, etc. C.R.S. 8-73-108.
Spousal Communications Privilege. A civil union partner has the same protections that a spouse has not to testify against one-another or to reveal confidential communications between the partners. C.R.S. 13-90-107 (a.5).
Marital Agreements. Civil union partners can enter into pre-nuptial or post-nuptial agreements just as spouses can. (P.13). C.R.S. 14-2-307.5, c
Probate Proceedings. A civil union partner is a spouse for purposes of guardianship, conservatorship, wills/trust/inheritances, etc. C.R.S. 14-15-107(5).
A civil union partner has the same presumption of paternity that a spouse has - a child conceived to one partner in a civil union is presumptively the child of the other, even though there is no biological relationship. C.R.S. 19-4-105.
For purposes of adoption, a civil union partner is treated as a spouse. Civil union partners can adopt a child jointly, C.R.S. 19-5-202(4), and if one partner already has a child, his/her civil union partner can adopt the child through the same stepparent procedures set forth in C.R.S. 19-5-203 (which makes adoption easier than it would be for non-spouses).
Parties to a civil union do not have any of the rights of a married couple under federal law, such as federal income tax filing, survivor benefits of federal pensions, social security, certain bankruptcy protections, etc.
The federal Defense of Marriage Act (DOMA) defines a marriage as a union between a man and a woman. However, U.S. Supreme Court recently overturned §3 of DOMA which bars federal benefits to same-sex couples who are legally married under state law. United States v. Windsor. This decision does not explicitly apply to civil unions, only actual marriages, which still leaves civil union partners in a limbo so far as federal law is concerned.
And because Colorado income tax filings are tied to federal law, with further statutory change in Colorado, or change at the federal level to cover civil union partners, this prevents parties to a civil union from filing a joint state tax return as well. C.R.S. 14-15-117.
In 2009, Colorado enacted HB 1260, the Colorado Designated Beneficiary Act, which is codified at C.R.S. 15-22-101, et seq. It gives some of the rights of marriage to unmarried couples, including same-sex couples, but falls far short of the full protections of marriage. However, Colorado has rectified that by legalizing Civil Unions, so gay and lesbian couples have more options than a simple Designated Beneficiary Agreement.
The law provides for numerous benefits, which are outlined in C.R.S. 15-22-105, including:
There are also other rights not outlined in this article - check the statute for more information. Also, note that a particular Designated Beneficiary Agreement may exclude any of the rights/benefits provided by the statute.
A Designated Beneficiary Agreement may be a baby-step towards affording some of the rights of marriage to unmarried or same-sex couples, but its rights are far from those of civil unions or domestic partnerships in other states. Among the important rights not granted to designated beneficiaries are:
Pursuant to C.R.S. 15-22-104(1)(A), the parties to a Designated Beneficiary Agreement must meet the following criteria:
Pursuant to C.R.S. 15-22-104(2), in order to be valid the agreement must:
As a Designated Beneficiary Agreement is a contract, and not a marriage or civil union, either party may revoke it at will. He/she need simply follow the format specified in C.R.S. 15-22-111(4), and the revocation is effective when the County Clerk & Recorder receives it.
Additionally, a Designated Beneficiary Agreement is deemed revoked if either party marries or enters into a civil union.
Colorado's Designated Beneficiaries Law. A site with FAQs and forms.
The procedures to dissolve a marriage and a civil union in Colorado are virtually identical, except as noted below. Additionally, civil union partners in a dissolution proceeding have the same substantive rights as spouses going through a dissolution, so the articles in this guide, even though they refer to “marriage” or “spouses”, apply equally to civil union partners.
Colorado’s adaptation of the UDMA has been amended to include dissolving civil unions. To preserve the technical distinction between a marriage and a civil union, the caption reads “In re: the Civil Union of...”, rather than “In re: the Marriage of...” C.R.S. 14-10-105. In fact, the Colorado Supreme Court web site has been updated to include forms with the new caption.
Other than that, the procedural and substantive requirements to dissolve a civil union are the same as for a marriage. C.R.S. 14-10-106.5. They are dissolved, annulled, and partners can be legally separated, the same as with married spouses. Assets, debts, children, support, etc. are handled the same.
This also means that you don’t need to see a same-sex specialist to dissolve a civil union. From a legal perspective, dissolving a civil union is identical to dissolving a marriage, so any domestic relations attorney should be able to assist, even if the attorney doesn’t necessarily know that!
If you enter into a civil union in Colorado, Colorado forever retains jurisdiction to dissolve the civil union, even if one or both parties have left the state. C.R.S. 14-10-106.5(1).
This contrasts to dissolution of marriage, where Colorado only has subject matter jurisdiction to grant a dissolution if one spouse still remains in Colorado, and the court may lack personal jurisdiction over the spouse who left the state. Presumably this is to address the concern that a couple who entered into a civil union may move to a state which does not recognize civil unions, and without this broad jurisdiction, could be left with no way to dissolve their civil union.
The law provides that out-of-state same-sex marriages, civil unions or domestic partnerships are treated as civil unions in Colorado. C.R.S. 14-15-116. This means that same-sex spouses cannot dissolve their marriage, but they can dissolve their civil union, thereby achieving the same legal result.
Benefits Issues Arise When Same-Sex Relationships End, a comprehensive article addressing complications which can arise, in the August 2013 Colorado Lawyer by Kristi Anderson Wells.
Non-citizen and immigrant spouses can add a unique level of complexity to any family law. Typically, the citizen spouse has a misguided belief that having the spouse deported is the best option to avoid financial responsibility and to gain an upper hand in custody determinations. Unfortunately, it is not this simple.
Attempts to deport a spouse can lead to criminal liability on the part of the citizen spouse.
Additionally, citizen spouses can also have an indefinite support obligation that exceeds in amount and time what the spouse may have been ordered to pay through Colorado’s Spousal Maintenance Law (C.R.S. 14-10-114). This increased support obligation is often a result of the I-864, a contract between the citizen spouse and federal government that can be enforced in any state or federal court.
In child custody determinations, immigration status has been determined to be only one factor the court is permitted to consider out of several and status alone cannot be a factor to deny a parental responsibilities. If an immigrant spouse returns to their home countries and the children are there with them or will travel internationally for parenting time, special considerations and language should be added when crafting parenting time plans.
Every year, hundreds of thousands of United States citizens petition the United States Government for their family members to obtain legal permanent residence status. Under the national immigration law, the United States government breaks down the relationship between the petitioning citizen and sponsored citizen into two groups, immediate relatives and family preference. (Immigrant Categories) Annually there are no quantitative limitations on the number of immediate relatives that can qualify and be granted conditional resident status, however there are quantitative limitations on the number of family preference applications that can qualify annually for admission. Spouses of United States citizens are considered “immediate relatives” and thus are exempt from a variety of the limitations placed on other petitioning foreign-born nationals, including the quantitative limitations imposed by the United States government.
Spouses who immigrate to the United States based upon marriage are given a two year conditional permanent residence status. This status last for two years and is subject to termination if the marriage if found to be a “sham” marriage. Other than being subjected to having their status terminated after two years, conditional resident status recipients are afforded the same legal rights and responsibilities as legal permanent residents. After the two year period they must apply under 8 CFR 216 to have the conditions lifted. If they are unsuccessful in removing the conditions or if their petition is denied, the alien will lose their status and be subjected to deportation.
Ninety-days prior to the anniversary of being granted conditional resident status, the immigrant must file a petition with the INS to remove the conditions on residency by filing an I-751 Form. If the marriage is still intact, the United States citizen spouse must jointly file the petition. If the marriage has been dissolved then there is a risk that the immigrant spouse can lose their status and become deportable. This risk to the immigrant spouse led to immigrant spouses to stay in abusive marriages out of fear. The United States addressed this concern by allowing certain conditions which would allow an immigrant spouse to file a petition for legal permanent resident status unilaterally.
This requirement may be waived if 1) you entered the marriage in good faith and the spouse died 2) you entered the marriage in good faith but the marriage was terminated by divorce or annulment 3) you entered the marriage in good faith but are a battered spouse or have been subjected to extreme cruelty by your US citizen spouse or 4) termination of your status and removal would result in extreme hardship. Waiver of Condition I-751 Evidence of the immigrant spouse entering the marriage in good faith must be presented. Examples of sufficient evidence are: birth certificates of children, documentation of joint occupancy/ownership of residence, financial records showing joint liabilities and assets, sworn affidavits of at least two people who have known both of you since your conditional residence was granted and have personal knowledge of your relationship and marriage, or other documents considered relevant. The test is was the marriage entered into in good faith on the date of the marriage, not when then party is filing for the conditions to be removed.
Out of all of the ways to waive a requirement of a joint petitioner, the easiest to prove are that you entered the marriage in good faith but that the other party died or your marriage was annulled or ended in divorce. Good faith can be proven by birth certificates of children, documentation of joint occupancy/ownership of residence, financial records showing joint liabilities and assets, photos of your marriage, and any other proof that the marriage was not a “sham” marriage. The test of “good faith” is based upon what the intentions were on the date of the marriage.
Conversely, a claim of extreme hardship is a very tough burden to prove and is the least likely to be able to be proven by an immigrant spouse.
A claim of being a battered spouse is easier to prove. Immigrant spouses are often times considered to be more vulnerable to abuse and cruelty. The inequality of power in the relationship is one factor to consider. Economic dependency, unfamiliarity with American culture, concerns of deportation, and fear of the legal system often cause immigrant spouses to not report abuse. Due to the concerns surrounding immigrant spouses subjected to abuse, Congress added the abuse provision to I-751 in 1990.
INA section 216 allows conditions on residency to be removed if petitioning spouse can show entered marriage in good faith but spouse either physically abuse the conditional resident or the conditional resident’s child or subjected them to extreme mental cruelty. Physical abuse or extreme mental cruelty may include: sexual abuse/exploitation, forced prostitution, incest, rape, psychological abuse/exploitation, forced detention resulting or threatening to result in physical or mental injury, and being the victim of any act of violence. The petitioning immigrant only need credible evidence of the abuse and a totality of the circumstances are considered. INA regulations provide for confidentiality of the information and documentation submitted in these applications to assist in protecting the applicant.
Another protection allowed via VAWA (Violence Against Woman Act) is a provision that allows the immigrant spouse to self-petition to gain legal permanent resident status. This provision is not the same as a waiver of the joint petition and is extended to spouses, children and in some cases to parents of US citizens. Evidence needing to apply for a self-petition via VAWA are that of: a good faith marriage, qualifying relationship (parent/child relationship with claimant is parent/child), abuse (including physical battery or extreme cruelty), joint residence and good moral character.
Family law attorneys can help victims of abuse and cruelty to obtain evidence of abuse through court transcripts. This evidence cannot only be used to establish a pattern of abuse, but can help obtain protective orders for the abused spouse and assist in obtaining documentation of the relationship that can help establish a bona fide relationship as required by immigration
When applying for immigration status for a foreign-born spouse, the United States Citizen must execute an Affidavit of Financial Support or a Form I-864. This form has been held by several U.S. Courts to be an enforceable contract between the citizen spouse and the federal government that the citizen spouse will provide support for the immigrant spouse at or above 125% of the federal poverty guidelines for his/her household size until one of several qualifying events occur. Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D.Cal.2008); Montgomery v. Montgomery, 764 F.Supp.2d 328, 331 (D.N.H. 2011); Younis v. Faraooqi, 597 F. Supp.2d 552 (D.Md.2009);
Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012). In re Marriage of Sandhu, 207 P.3d 1067, 41 Kan.App.2d 975 (2009); Love v. Love, 33 A.3d 1268, 1273 (Pa. Super. Ct. 2011); Naik v. Naik, 944 A.2d 713 (N.J. Super. Ct. App. Div. 2008);Davis v. Davis, 970 N.E.2d 1151 (Ohio Ct. App. 2012); In re Marriage of Kamali and Alizadeh, 356 S.W.3d 544 (Tex. App. 2011); Barnett v. Barnett, 238 P.3d 594 (Alaska 2010); Iannuzzello v. Lovett, 981 Do.2d 557 (Fla. Dist. Ct. App. 2008).
These qualifying events are under Form I-864 are:
1. 40 qualifying quarters towards Social Security eligibility
2. Death of a sponsor
3. Naturalization of the immigrant spouse
4. Death of immigrant spouse
5. Immigrant spouse returns to their native country and forfeits legal permanent resident status
Divorce and legal separation does not terminate an obligation of a citizen spouse and a citizen spouse may not withdraw their obligation. An immigrant spouse can raise an enforcement claim in their petition or answer. In re Marriage of Sandhu, 207 P.3d 1067 (2009). Additionally, remarriage of the immigrant spouse also does not terminate the citizen sponsor's obligation.
This contract can be enforced by a sponsored immigrant or third party (public entity that provides financial assistance to the immigrant spouse). 8 U.S.C. §1183a(4)(C)(ii) The immigrant spouse is considered a third party beneficiary of the contract between the citizen spouse and federal government thus can seek enforcement based upon basic contract law principles. Any party seeking enforcement can attempt to have this contract be enforced in any state or federal court that has jurisdiction of a lawsuit against the sponsor. 8 U.S.C. §1183a(1)(c) Love v. Love, 33 A.3d 1268, 1273 (Pa. Super. Ct. 2011); Naik v. Naik, 944 A.2d 713 (N.J. Super. Ct. App. Div. 2008);This includes the Colorado District Court in dissolution of marriage proceedings. In dissolution of marriage proceedings this contract can provide for support of an immigrant spouse where other support provisions under the UMDA may not.
Read this article for more information.
The purpose of the contractual obligation by a citizen spouse under the Immigration and Nationality Act is to support an immigrant spouse at or above 125% of the federal poverty guidelines applicable to the size of her household, is to prevent the immigrant spouse from becoming a public charge. 8 U.S.C. §1183a(1)(B). By setting a floor of 125% of the federal poverty guidelines the federal government has established where the determination of support begins. However, the language “at or above” clearly indicates discretion in the amount to be set by the Court. Love v. Love, 33 A.3d 1268, 1273 (Pa. Super. Ct. 2011); Naik v. Naik, 944 A.2d 713 (N.J. Super. Ct. App. Div. 2008);Davis v. Davis, 970 N.E.2d 1151 (Ohio Ct. App. 2012); Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D.Cal.2008);
Many courts have followed Naik in determining how much support a sponsor owes to a sponsored spouse. In Naik, the Court held that if a sponsored immigrant’s sources of support exceed 125% of the federal poverty guidelines applicable to the size of her household, then no I-864 support is mandated by the INA. Additionally, if there are other sources of support (ie. income of the immigrant spouse or property owned by the immigrant spouse), a sponsor’s support is limited to cure the deficiency between the sponsored immigrant’s income and the appropriate guideline amount. See also Younis v. Faraooqi, 597 F. Supp.2d 552 (D.Md.2009); Shumye v. Felleke, 555 F.Supp.2d 1020 (N.D.Cal.2008); Barnett v. Barnett, 238 P.3d 594 (Alaska 2010)
In enforcement of the I-864, the Court must consider the sponsor's assets which are deemed available to help meet their obligation. Property of the immigrant spouse is also considered and may reduce the amount of contractual support awarded. Whether or not the immigrant spouse is working is also a consideration in the enforcement of the contract. Case law throughout the country has provided that if the immigrant spouse is actually working, the citizen spouse is entitled to a credit for the immigrant spouse's earnings against their obligation. Love v. Love, 33 A.3d 1268, 1273 (Pa. Super. Ct. 2011)Wenfang Liu v. Mund, 686 F.3d 418 (7th Cir. 2012)Conversely, other courts, such as the Naik Court, have held that an immigrant is expected to engage in gainful employment to mitigate the damages and potential support obligation owed under the I-864. Colorado is one of the states which has not established how to calculate the amount of an award and whether or not an immigrant spouse has a duty to mitigate damages.
Under 8 U.S.C. §1183 (a) c states that if enforcement of the I-864 through court action is necessary, the sponsor is obligated to pay the immigrant spouses attorney fees and costs, which can be an added financial burden to the citizen spouse. The citizen spouse is also forewarned of this exposure on the I-864.
When dealing with an immigrant spouse or citizen spouse where there is an I-864 support obligation, attorneys should consider:
· How the foreign born national has assimilated to their community
· General physical and mental health of the parties
· English language skills of the immigrant spouse
· Currency skills of the immigrant spouse
· Education of the immigrant spouse (foreign and domestic)
· Experience in local job market
· Adaptation to local cultural and social climate
· Differences in foreign education and work experience which is usually not transferable to the American job market
Additionally, family law attorneys should look for ancillary evidence in the I-864 if a financial affidavit of assets filed by the citizen spouse with the federal government that has all of the citizen spouse's assets itemized. In dissolution cases this affidavit can provide valuable information. Part of the discovery process in dissolution proceedings should be to obtain it to compare to the financial affidavits filed in domestic matter and the petition for legal permanent resident status. These can be obtained via a FOIA request from the Federal Immigration Department. These requests can take up to two (2) years to obtain and typically are produced no sooner than six (6) months from the date of the requests. Such requests can be expedited if there is a demonstrated special circumstance that relates to the need to obtain it. In most Courts, a motion to produce the I-864 may be sufficient.
"Gross income includes income from any source, except as otherwise provided in subparagraph (II)..." So begins the child support statute provision on income, C.R.S. 14-10-115(5)(a)(I).
The maintenance statute has the same definition, and can be found at C.R.S. 14-10-114(8)(c)(I).
Sounds pretty simple, right? You earn money, it is income. But if it were truly that simple, the statute would not need a laundry list of 26 examples, literally from A to Z, of what constitutes income, and there would not be hundreds of cases trying to decipher what should count as income.
A common misperception is that if money is not taxable, it is not income. So, for instance, even though gifts received or 401(k) increases are not taxed, they still count as income, as do untaxable military allowances, such as BAH and BAS, or VA disability payments. One’s tax return is the starting point for determining income, not the end of the inquiry.
This section explores some of the quirks in income, so click on the links below for more information on various income situations, including:
Interest & Dividends
Rents & Royalties
Employee benefits, such as health or retirement contributions.
State benefits (social security, unemployment, etc)
(Note - this section is under construction, so the links will become live as the articles are written).
Understanding Military Pay, in the Military Divorce Guide.
The most common forms of a return on investment are dividend and interest income, both of which count as income for purposes of child support and maintenance pursuant to C.R.S. 14-10-115(5)(a)(I)(F) and (K) respectively.
The simple rule is that if you invest your money in and receive interest on a 1099-INT or dividends on a 1099-DIV, those payments are included as income. See also In re Marriage of Jaeger, 883 P.2d 577 (Colo. App. 1994), where the court added actual interest income to an obligor’s income.
Don't forget that during an initial dissolution, accounts tend to be divided somewhat equally. So unless a spouse has substantial separate property investments, both spouses should initially start out with comparable investments, so the interest income will likely be somewhat of a wash.
Previously, interest and dividends that were earned by a retirement account, such as an IRA, would still count as income, even if the person were still working and could not withdraw the appreciation without incurring tax penalties. See In re: Marriage of Tessmer, 903 P.2d 1194 (Colo. App. 1995).
However, effective January 1, 2014, the legislature added a provision to the statute to overturn that ruling. C.R.S. 14-10-115(5)(II)(E) now excludes from gross income: "Earnings or gains on a retirement account, including an IRA, which earnings or gains must not be included in income unless or until a parent takes a distribution from the account. If a distribution from a retirement account may be taken without being subject to an IRS penalty for early distribution and the parent decides not to take the distribution, the court may consider the distribution that could have been taken in determining the parent's gross income if the parent is not otherwise employed full-time and the retirement account was not received pursuant to the division of marital property."
One issue with interest and dividend payments is that they may not be consistent. But just as courts average variable bonus payments over a number of years, the same is done with returns on investment. The court in In re Marriage Rice & Foutch, 987 P.2d 947 (Colo. App. 1999) addressed a situation where an obligor had investment income which fluctuated significantly over the previous 4 years from a $1350 loss to a $31,000 gain in the year immediately prior. The investor was seeking to have all four years averaged together, the other party wanted just the most recent $31,000 gain to count. The trial court ended up averaging two years of returns, and the court of appeals approved that.
Finally, just as a court can impute income to a person who is voluntarily underemployed, so too can a court impute a reasonable rate of return on an investment that is under-utilized. So a person who distrusts financial institutions and has a substantial nest egg in a shoebox, earning nothing, may well find that the court decides the money is not properly invested, and should be earning an income.
In In re: Marriage of Armstrong, 831 P.2d 501 (Colo. App. 1992), the obligor inherited almost $400,000, and used it for a combination of gifts, loan repayments, and investing, so that while the inheritance was not actually gone, the obligor had changed its nature.
The trial court added to the obligor’s income what the inheritance reasonably should have generated, and found a reasonable rate of return to be 9%. (Note the date of this decision - these days a reasonable rate of return would be much lower).
The court of appeals upheld the imputation of income, but excluded the amounts which the obligor used to repay the loans (as they were a condition of the inheritance), as well as the amounts he gifted, as it was within his discretion to give away money. But the remaining amount was subject to a 9% imputation.
“Gross income” includes "Expense reimbursements or in-kind payments received by a parent in the course of employment... if they are significant and reduce personal living expenses.” C.R.S. 14-10-115(5)(I)(X).
It is well-established that regular housing allowances paid by an employer count as income, even if such allowances are not cash, but “in-kind”, i.e.. the employer provides the housing for an employee. In re: the Marriage of Long, 921 P.2d 67 (Colo.App. 1996). See also the Understanding Military Pay article in the Military Divorce Guide.
Some employers vary the pay of their employees depending upon where they are located. The federal government is the largest example of this, both with civilian employees (where the GS pay scale has locality adjustments), as well as with military personnel, which has a Basic Allowance for Housing which varies, depending upon the member’s duty station.
An example of different pays based upon location is that in 2015, a married Army Colonel stationed at Fort Polk, Louisiana received BAH of $1803, whereas that same Colonel stationed in Honolulu, Hawaii would receive a BAH of $4305.
Unfortunately for that Colonel, though that additional $2500/mo is considered by the military to be necessary to put him in the same financial position as a Colonel at Fort Polk, the Colorado courts treat it as additional income for purposes of maintenance and child support. So that $2500 increase in BAH means a $1000 increase in maintenance!
The same principle applies to overseas payments. When an employer sends someone to a foreign country where the cost of living is higher, it is not unusual to pay the employer allowances in addition to salary which are intended to help defray those higher costs.
Such allowances may be known as Cost of Living Allowances (COLAs), Overseas Housing Allowances, tax equalization payments, etc. Their purpose is to try to put the employee on level footing as his/her peers living in the United States.
And again, unfortunately for the employee, such allowances also count as income for purposes of maintenance and child support. The Father’s employer in In re: the Marriage of Stress, 939 P.2d 500 (Colo. App. 1997), transferred him to Canada, where upon he received a foreign service premium, a commodities and services allowance to offset the higher cost of living in Canada, and his employer paid his Canadian income taxes with an “expatriate tax equalization”.
The Father argued that these thousands of additional dollars per month did not result in any higher net income, as his expenses were higher. The Court of Appeals was not impressed, finding that the only exceptions to counting a source of income as “gross income” under C.R.S. 14-10-115 were those exceptions specifically enumerated in the statute.
The Court held: “We perceive no basis under the statute upon which the trial court could exclude from father's gross income the monies paid directly to him to compensate for the cost of living in a foreign locale. Such monies serve the same function as the balance of father's compensation, that is, to fund his chosen lifestyle and financial obligations in the geographic area in which he resides.” Id. at 502.
There is one situation where a court has recognized that the location of a parent may have an impact on how much support should be paid. In People ex rel. A.K., 72 P.3d 402 (Colo. App. 2003), the mother and children had moved to Russia, and then applied for child support in Colorado, where the father lived.
The mother’s income was $77/mo, a pittance by American standards, but in line with Russian salaries. The Father’s obligation per the Child Support Guidelines was $1412/mo, a figure he argued was outrageously high by Russian standards, and the children needed a much lower amount to have a comparable standard of living. The trial court rejected the father’s request for a downward deviation from the guidelines.
The Court of Appeals held the door open a little to consider the cost of living issue:
"In declining to depart from the guidelines, the trial court found that the evidence presented did not support a conclusion that economic circumstances in Russia were so dissimilar to those in Colorado that reliance on the guidelines would be unreasonable or unfair. The evidence relating to the economic needs of the children came from the parties and the testimony of a witness testifying by telephone from Russia. Father had identified an expert on the political and economic situation in Russia, but he was not available at the time of the hearing. Given the complexity of comparing the economic circumstance in Colorado to those in Russia, expert testimony would have been useful.
Given the difficulty in applying Colorado child support guidelines to the needs of children in Russia, we conclude that the trial court should have considered the evidence referenced above in deciding whether application of the guidelines "would be inequitable, unjust, or inappropriate."
So while the Court of Appeals did not explicitly find a deviation appropriate, it did require the trial court to give the father the chance to present evidence and make the argument for a downward deviation from the Colorado Child Support Guidelines based upon Russia’s lower cost of living.
Understanding Military Pay, in the Military Divorce Guide, for a discussion of military pay and allowances, including overseas allowances.