Dissolution of Marriage (Divorce)
There are few events in one's life that are as stressful and emotionally draining as going through a divorce. On top of that, Colorado divorce law has become increasingly complicated, and navigating the process requires the assistance of an experienced Colorado domestic relations attorney.
A divorce involves not only severing the marital bond between the parties, but the financial ties as well. Additionally, divorces can become increasingly difficult when the parties have minor children, particularly when the parties are not in agreement as to decision making and custodial arrangements for the children.
Jim has handled all types of divorces, from uncontested "simple" matters to divorces involving the valuation of business interests, other complicated property division issues, and the tracing of assets to determine whether they are marital property subject to a fair and equitable division or nonmarital property not subject to such a division. Additionally, he has successfully negotiated favorable parenting arrangements for his clients in the most difficult of cases, i.e. those involving allegations of domestic violence, child abuse or both.
If you are considering initiating a divorce action in Colorado, or have been served with divorce papers, contact Jim today for a free consultation.
In Colorado there are two ways one can marry - either by fulfilling the statutory requirements or by satisfying the requirements for a common-law marriage. Colorado is one of a minority of states which still recognizes common-law marriage.
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. Although mutual consent or agreement is an essential element of a common-law marriage, that agreement does not have to be in writing or even in words. In the absence of an agreement to enter into a common-law marriage, the two factors cited mot by Colorado courts are co-habitation and a general reputation in the community that the parties hold themselves out as husband and wife. The Colorado Supreme Court has held that open cohabitation is a necessary component of a common-law marriage.
The determination of whether a common-law marriage exists requires the court to conduct a fact-specific inquiry. Factors a court may look at and questions the court may ask include the following:
Whether two individuals were common-law married, particularly if they later entered into a formal marriage, can have a major impact in a divorce proceeding. Contact Jim today and let him help you determine if you may have entered into a common-law marriage.
A legal separation provides an avenue for a husband and wife to formally separate, both physically and financially, by a court decree without an actual termination of the marital relationship. Under Colorado law, a legal separation may be obtained upon the same grounds as those available for a divorce.
A common misconception is that a legal separation may be obtained more quickly or more easily than a divorce. This is generally not the case.
The most significant distinction between a legal separation and a divorce is that the parties to a legal separation may not thereafter remarry. The same type of division of assets and liabilities, parenting time and parental decision-making (custody), and spousal maintenance (alimony) take place in a legal separation as they do in a divorce. Additionally parties to a legal separation are treated as unmarried for federal tax purposes. Pursuant to Colorado law, the accumulation of marital property is stopped by the entry of a decree of legal separation. However, parties to a legal separation are treated as husband and wife for purposes of inheritance rights upon the death of one of them.
If you are considering a legal separation contact Jim today for a free consultation.
Under Colorado law, a child has a legal right to support from both parents, and accordingly both parents have a continuing duty to provide reasonable support for their child or children. The Colorado Child Support Guidelines are used to determine the appropriate amount of child support, and the guidelines apply to all child support obligations established or modified as part of any proceeding, whether a divorce action, allocation of parental responsibilities action, or otherwise.
Colorado's Child Support Guidelines are based on what is called the income shares model. The guidelines employ the income shares model by calculating child support based on that portion of the parent's combined adjusted gross income estimated to have been allocated to the child if the parents and children were still living together.
Colorado employs two worksheets for calculating child support. Worksheet A is used if the child resides primarily with one parent and spends less than 93 overnights a year with the other parent. Worksheet B is used where each parent has the child overnight for more than 92 nights in a year. This type of shared physical arrangement has two effects upon the child support calculation. It assumes that certain expenses for the child will be duplicated and thus an adjustment for shared physical care is made by increasing the basic child support obligation. Additionally, in a true shared physical care arrangement both parents must contribute must contribute to the expenses of the child in addition to the payment of child support. The amount of child support arrived at by employing the guidelines are presumptively the appropriate child support amount.
Child support in Colorado is computed based on the gross income of the parties. For child support purposes, gross income includes income from any source and includes, but is not limited to, income from salaries; wages, including tips declared by the individual for purposes of reporting to the Federal IRS or tips imputed to bring the employee's gross earnings to the minimum wage for the number of hours worked, whichever is greater; commissions; payments received as an independent contractor for labor or services; dividends; severance pay; pensions and retirement benefits; royalties; rent; interest; trust income; annuities; capital gains; any monies drawn by a self-employed individual for personal use; social security benefits; worker's compensation benefits; unemployment insurance benefits; disability insurance benefits; funds held in or payable from any health, accident, disability or casualty insurance to the extent that such insurance replaces wages or provides income in lieu of wages; monetary gifts; monetary prizes; taxable distributions from general partnerships, limited partnerships, closely held corporations or limited liability company, and alimony or maintenance received.
For purposes of calculating child support, a parent's gross income included spousal maintenance (alimony) received. When the spousal maintenance arises from the same divorce proceeding in which child support is being computed, the amount of the maintenance is subtracted from the payor's income and added to the recipient's income.
Certain types of expenses have been identified in the Colorado child support statute which are treated as additions or adjustments to the basic child support obligation. Among those are net child care costs incurred on behalf of the children due to the employment or job search or the education of either parent are added to the basic child support obligation and divided between the parents in proportion to their adjusted gross income. The cost of health insurance and certain health care expenses are an additional addition to the basic child support obligation.
Parental Rights and Responsibilities
What used to be referred to as "custody" in Colorado domestic relations law now is referred to as parental rights and responsibilities. In 1999 the Colorado Legislature largely replaced the term "custody" within Colorado statutes to "parental responsibilities," and the concept of custody has been replaced with two different areas of focus - the allocation of parenting time (previously referred to as "physical custody"), and the allocation of parental responsibility or decision-making ( previously referred to as "legal custody").
Decision making responsibility relates to responsibility to make decisions on issues affecting the child. The relevant Colorado statute gives the court the discretion to make different allocations of responsibility relative to different decision making issues or areas. As an example, one parent may be granted sole decision making responsibility as to educational decisions regarding the child or children while both parents may be granted joint decision making responsibility as to extracurricular or religious decisions. The allocation of decision making responsibility has no relation to the amount of time the child or children spend with one parent or the other.
In allocating decision-making responsibility between the parties the court shall do so based on the best interests of the child. In so doing, the court shall consider the statutory best interest factors (discussed below) as well as all relevant factors, including:
Spousal Maintenance (Alimony)
Spousal maintenance, sometimes referred to as alimony or spousal support, can be sought and awarded to in a divorce action or a legal separation proceeding. There is no absolute entitlement to spousal maintenance under Colorado divorce law. A spouse seeking maintenance must first meet the statutory threshold in order to be awarded maintenance. Pursuant to the statutory threshold requirement, the court is required to determine whether the spouse seeking maintenance:
If the spouse seeking maintenance is able to satisfy the statutory threshold, the court must then determine the amount and length of the maintenance award. This second step is again guided by statute and requires the court to consider all relevant factors, which under Colorado law include the following:
The amount and duration of any maintenance award shall be determined without the court considering any alleged marital misconduct. The duration of a maintenance award can be through the conclusion of the proceedings, for a set number of years, or until some condition occurs, such as the death or remarriage of the recipient spouse.
In a Colorado divorce action assets and liabilities are to be equitably divided between the parties. As to the division of property, the first inquiry is whether the property is "marital" and thus subject to a fair and equitable division, or whether it is "nonmarital" and thus not subject to division.
Pursuant to Colorado law, any and all property acquired by either spouse, or both spouses, subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property. The marital classification includes assets and liabilities that were acquired in just one spouse's name subsequent to marriage and prior to the entry of a decree of legal separation or dissolution of marriage. It includes property acquired or liabilities incurred without the other spouse's consent.
Separate property, meaning nonmarital property, is defined by Colorado law as follows:
Under the statue any asset that was acquired prior to the marriage is nonmarital property, including property that was acquired during a period of premarital cohabitation. An increase in the value of separate property during the marriage is considered marital property unless the increase in value is excluded from the marital estate by a valid agreement of the parties. That being said, a single asset may have both a marital and nonmarital component. In that instance, the asset is the separate property, which is awarded to the original owner, and only the appreciation is marital subject to a fair and equitable division.
Property which starts out as nonmarital can become marital as a result of acts during the marriage. This can occur due to comingling, gifting, or title changes. The most common way for nonmarital property to lose that characterization and thus become marital property occurs when property is commingled. Commingling occurs when nonmarital property is mixed with marital property, such that the property becomes intertwined to the extent that its separate character is unidentifiable. In those circumstances it can be argued that the separate property has lost its nonmarital character and, thus, the entire asset has become marital property subject to an equitable division.
As to gifts between spouses, the Colorado legislature has created a rebuttable presumption that gifts from one spouse to another are marital property and thus not the separate property of the recipient spouse. However, under the applicable statute the presumption does not apply to "gifts of nonbusiness tangible personal property." Examples of such property are furs and rings. Under the statute those types of gifts presumably are the separate property of the recipient.
Modification of Child Support
Child support provisions of a divorce decree may be modified upon a showing of changed circumstances that are substantial and continuing. One paying child support is obligated to do so until the child reaches the age of majority, which under Colorado law is currently nineteen years of age.
Child support does not automatically terminate upon the death of the parent who is paying support. Instead, upon the payor's death the amount of support may be modified, revoked, or modified to a lump sum payment, to the extent that it is just and appropriate under the circumstances.
The party filing a motion for modification of child support bears the burden of proof, which is to say that that party must show changed circumstances that are substantial and continuing.
A child support modification generally requires at least a 10% change in the amount of support called for in the original decree. Although there are limited exceptions, if the change in the amount of support is less than 10% the party seeking the modification has not met their burden of showing a substantial and continuing change of circumstances.
So what constitutes changed circumstances that are substantial and continuing? Colorado courts have provided varying answers to that question. In one case the Colorado Court of Appeals denied a motion to modify because, even though the party seeking the modification had been laid off from his job, the court found that the unemployment was only temporary, and thus not continuing. In another case, in addition to looking to a change in the guidelines amount of support, the court also took into account the custodial parent's medical condition which resulted in the loss of her employment, her medical expenses, and the likelihood that she would continue to incur substantial medical expenses. After considering those circumstances the court did find a substantial and continuing change of circumstances. Other cases have centered on whether the party seeking a downward modification of child support was voluntarily unemployed or underemployed.
Modification of Spousal Maintenance
After the issuance of a decree of dissolution the sole way to modify spousal maintenance is though a modification action. Under Colorado law a final maintenance provision may be modified upon a showing of changed circumstances that are substantial and continuing so as to make the original terms unfair. If a modification is granted it can only be as to installments due subsequent to the filing of the motion for modification.
Not all maintenance provisions are modifiable The parties can agree to preclude or limit modification, thereby divesting the court of jurisdiction to modify maintenance, if that intent is articulated in language that is specific and unequivocal. If the parties have not agreed to preclude modification an award of maintenance is always modifiable by the court whether as to amount or duration.
In a modification action the burden of proof is on the party who is seeking the modification. A motion to modify maintenance is not decided by the court under the same standards as the original award. The question before a court in a modification action is whether the terms of the original award have become unfair. A modification requires more than proof of changed circumstances. The change in circumstances must be substantial and continuing to the extent that the terms of the decree sought to be modified are unfair.
Orders for the payment of maintenance, child support, or the distribution of property are not always complied with by the party obligated to make such payments or distributions. In the event of such noncompliance, post-judgment enforcement measures may become necessary.
The primary enforcement remedy available to a party who is not receiving their court ordered maintenance, child support, or property distribution is a contempt proceeding. Colorado law defines contempt, in part, as disobedience or resistance by any person to or interference with any order of the court. There are two categories of contemptuous conduct. Direct contempt is contempt that the court has seen or heard. Indirect contempt is contempt that occurs out of the direct sight or hearing of the court. In the area of family law contempt proceedings almost always fall into the latter category.
Contempt proceedings are further divided into two other categories - remedial contempt and punitive contempt. Remedial contempt sanctions are defined under Colorado law as those that are imposed to compel a person to comply with a prior court order. The goal is to remedy the noncompliance. Certain and specific circumstances must be present relative to remedial contempt. There must first be a court order directing a payment or some type of other performance, and the party alleged to be in contempt must have actual knowledge of that order. If those two conditions are present, the party alleging contempt must establish the failure of the alleged contemnor to pay the monies required or comply with the order in some other respect. The remedial contempt remedy is available only against a party who has the ability to pay but refuse to do so.
In contrast to remedial contempt sanctions, punitive contempt sanctions are sanctions which are imposed to punish conduct that is found to be offensive to the authority and dignity of the court. The punishment can be in the form of a fine, a fixed sentence of imprisonment, or both. One imprisoned pursuant to a punitive contempt proceeding is not imprisoned for a debt but rather is punished for failing to pay amounts due at a time when the party had the ability to do so. A punitive contempt claim requires proof that the alleged contemnor's noncompliance was willful. When punitive contempt is at issue, the standard of proof is proof beyond a reasonable doubt.
Colorado law allows for the court to combine both remedial and punitive sanctions.
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