Divorce or Legal Separation in Colorado
By: Joo Y. Park, Esquire
• Where and how do I begin?
Once you have decided to dissolve your marriage, you have the option of filing a petition for dissolution of marriage or legal separation, either individually or jointly with your spouse. For some individuals, due to religious, emotional, financial or other personal reasons, they want to obtain legal separation rather than divorce. Ultimately, either party may request a final divorce decree 6 (six) months after obtaining legal separation. (C.R.S.14-10-107.)
• Does the court consider who’s at fault for the breakdown of the marriage?
No. Colorado is a no-fault divorce state. In other words, the court does not factor into consideration either party’s marital indiscretions or specific acts that may have caused the breakdown of the marriage. The required ground for divorce/legal separation is irretrievable breakdown of the marriage. (C.R.S.14-10-106, 107, and 113.)
• Can my spouse and I reach an agreement of our own?
Yes. In fact, courts encourage parties to reach an amicable resolution. The parties may do so either through mediation or other type of alternative dispute resolution process. Whatever agreement they reach, the parties may submit their agreement to the court for approval. The parties should however, consider having their own respective attorneys throughout such process so that they are properly informed of their rights regarding division of marital property, spousal maintenance/alimony, parenting time, and child support. If the parties are unable to reach an amicable resolution of their own, they will need the court’s intervention. (C.R.S.14-10-112)
• What is the affect of divorce or legal separation on all of the assets and liabilities in my name, my spouse’s name, or in our joint names?
All assets and liabilities in your name, your spouse’s name, or in joint names are deemed “marital property” and should be divided between you and your spouse. Your first step in this process is to identify all sources of income as well as assets and liabilities you and your spouse have accrued and incurred during the marriage. What are deemed assets? Bank accounts, retirement plans, investment accounts, real property (marital residence, vacation homes, investment property, etc.), business interests, personal property, etc. Such exchange of financial information is mandatory and required in every case. Both you and your spouse should cooperate in exchanging the necessary documents that will identify your respective income(s), all marital assets and liabilities, and their values. Keep in mind – the less you cooperate, the longer it will take for you to get divorced and the more you will incur in legal fees. (C.R.S.14-10-113.)
• Does everything get divided 50/50 in property distribution?
No. Contrary to the popular belief among many divorcing parties, not all marital property gets divided 50/50 or equally between spouses. The court must take into consideration all relevant factors including the following:
(a) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(b) The value of the property set apart to each spouse;
(c) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time; and
(d) Any increases or decreases in the value of the separate property* of the spouse during the marriage or the depletion of the separate property for marital purposes. (*See below regarding “separate property”; C.R.S.14-10-113.)
Generally, the value of marital property subject to division will be the value as of the date of hearing (or as close to the hearing), NOT the date you and your spouse physically separated or expressed to each other a desire to separate.
• Is there any asset or liability that should be excluded from divorce and property distribution?
Yes. The following are deemed “separate property” and excluded from divorce and property distribution:
(a) Property acquired by gift, bequest, devise, or descent;
(b) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(c) Property acquired by a spouse after a decree of legal separation; and
(d) Property excluded by valid agreement of the parties.
The increase in value of any of the property listed above during the marriage will be deemed marital property and subject to distribution.
Also keep in mind that all liabilities incurred prior to the marriage and/or after the divorce should be excluded from your marital estate. In other words, you should not be responsible for your spouse’s debts incurred prior to the marriage and/or after the divorce. (C.R.S.14-10-113.)
Please note that all information contained herein is general and should not be considered as customized legal advice for you. Should you have any questions regarding your case, please call our office at (970) 340-4977 to schedule a consultation with attorney Joo Y. Park.