Divorce (Dissolution of Marriage)
In Colorado, divorce is called dissolution of marriage. The purpose of a divorce case is to resolve all issues related to finances and the children that have arisen as a result of an irretrievable breakdown of the marriage. In simpler cases where there are no children and limited assets, the divorce can be completed without ever going to court in about three months. In complex cases where there is disagreement on many issues, the case can take years and have multiple hearings before it's resolved.
This page is a brief overview of the divorce process and should not be treated as an authoritative guide. There is no substitute for advice from an experienced divorce lawyer.
The first step in a divorce case is the filing of a petition. Both parties can file the petition together or one spouse can file it on their own. If only one spouse files the petition, they must have the petition and summons served on the other spouse. It is important to file the petition in the proper county in accordance with C.R.C.P. 98.
All parties must send mandatory financial disclosures to the other party in the case pursuant to C.R.C.P. 16.2(e). This is a very important responsibility of the parties and should not be taken lightly. Read more about Mandatory Financial Disclosures.
If there are minor children of the marriage, each party is required to attend a four-hour parenting after divorce class. These classes can usually be taken online and cost about $50.
Initial Status Conference
The first hearing in every case is an initial status conference, sometimes referred to as an initial conference appearance. These are informal hearings where nothing of substance in the case is decided. Many times, the hearings are not conducted with a judge but with a judge's assistant.
The hearings usually take about 15 minutes. The purpose of the hearing is for the judge to get an idea of the issues in the case and whether or not it will be a complicated, lengthy case. If both parties are represented by counsel it is possible to avoid the initial status conference.
In the Divorce context, expert witnesses conduct investigations and make recommendations to the judge about specific issues. Experts can be retained jointly by the parties or each party can hire their own “hired gun” expert to opine on issues in the case. Experts are frequently retained to render opinions on issues such as the value of marital assets, the earning potential of a party, and the best interests of the child.
Once an expert has completed their investigation, they will draft a report and transmit it to the party or parties. In some cases, the expert report will be filed with the court prior to any hearing. If the case does proceed to a hearing, the court will thoroughly review the expert’s report before the hearing.
Mediation is a structured negotiation where the parties work with their attorneys and a mediator to settle issues in the case. An agreement only occurs at mediation if both parties agree. No party gets to unilaterally run the show at mediation.
The judge will require the parties to engage in mediation before permitting them to go to a permanent orders hearing (trial). Generally, mediation will occur after receiving an expert report if an expert is retained by one or both of the parties. In the vast majority of cases, the parties will settle most or all of the issues without requiring a permanent orders hearing. The settlement can occur at virtually any time prior to an order being issued by the court and it does not have to occur at mediation. The benefits of settling without going to permanent orders include saving thousands on attorney fees and also removing the uncertainty of leaving the decision up to a judge.
If there are minor children of the marriage, the parenting plan is one of the most important documents in the case. The parties and their lawyers will work together to draft a parenting time in the best interests of the children. The parenting plan includes all relevant agreements related to the children such as: 1) parenting time schedule, 2) holiday schedule, 3) decision-making authority, 4) exchange and transportation information, 5) health insurance information, 6) out-of-pocket medical expense reimbursement, 7) child support and many other important items.
The goal in a divorce involving children is always to agree to a parenting plan with the other party. If the parties are unable to agree to a parenting plan the judge will have to decide the issues for them. Most judges in Colorado will advise the parties at the beginning of the case that it is in the best interest of the parties and their children to come to an agreement regarding parenting issues and that they don't want to leave the decisions regarding the children up to a judge. Judges try very hard to get things right, especially on issues related to the children, but there are limits to what they can do.
Best Interests of the Child
The judge will rely on the best interests factors contained in C.R.S. 14-10-124 in making his or her decision. The factors the court considers for parenting time are:
(I) The wishes of the child's parents as to parenting time;
(II) The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
(III) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests;
(IV) The child's adjustment to his or her home, school, and community;
(V) The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
(VI) The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party's protective actions shall not be considered with respect to this factor;
(VII) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
(VIII) The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
(IX) and (X) Repealed.
(XI) The ability of each party to place the needs of the child ahead of his or her own needs.
The factors the court considers for decision-making are:
(I) Credible evidence of the ability of the parties to cooperate and to make decisions jointly;
(II) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child;
(III) Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties.
If there are no children of the marriage, the separation agreement is the most important document in the case. The parties and their lawyers work together to draft a separation agreement which covers all financial issues in the case such as division of assets and debts, division of retirement accounts, and (in some cases) spousal maintenance.
It is extremely important that the parties get the separation agreement right the first time. It is difficult (or impossible in some cases) to amend the separation agreement after it’s been agreed to and ordered by the court. This is especially as it relates to division of assets, debt, retirement accounts, or other property. If one party gets screwed in the separation agreement, fixing the problems after the fact can cost thousands in attorney fees and months or years of litigation with no guarantee that ANY of the issues will be resolved.
Permanent Orders Hearing
If the parties cannot agree to a complete parenting plan and separation agreement then some, or all, of the issues will be decided by a judge. The judge will not make any permanent decisions on the issues until a permanent orders hearing has been held. At the permanent orders hearing, the parties and their attorneys make their case to the judge by calling lay witnesses, expert witnesses, and presenting exhibits. The judge will make a decision after considering all of the evidence from the hearing.
Usually within a week or two after the hearing, the judge will issue a permanent order which resolves all outstanding issues. If the parties have been able to reach a partial agreement, that agreement will generally be incorporated into the judge's permanent order.
It is important to get things right the first time around. The best way to protect yourself is to obtain the advice of an experience divorce attorney. If you have any questions about any of the information contained on this page do not hesitate to contact our office at (720) 295-4196 or Cody@CKMLawyer.com.