Friday, July 18, 2008

No-Fault Divorce

Did you know that Colorado is a “no-fault” divorce state? All this means is that, in order to get a divorce in Colorado, you do not have to prove that anyone was at fault or that anyone did anything to damage the marriage. To get the divorce, one spouse has to be able to say that the marriage is “irretrievably broken”. There are three reasons for having no-fault divorce: to promote the amicable settlement of disputes that have arisen between the parties to a marriage; to lessen the potential harm to the spouses and their children that can be caused by the legal system in obtaining the divorce; and streamline the legal system for dealing with the realities of marriage and obtaining a divorce.

Because Colorado is a no-fault divorce state, it does not mean that fault does not have any role to play in a divorce case. For example, a couple may wind up getting a divorce because of the infidelity of one of the spouses. That spouse’s infidelity is not going to impact the proceeding in a no-fault jurisdiction like Colorado. However, if the unfaithful spouse had the bad taste and judgement to spend marital funds in the pursuit of his/her extramarital affair, such funds would have to be accounted for in the divorce case. This means that the unfaithful spouse would have to pay for expenditures out of his/her share of the proceeds of the marriage.

Another example of bad behavior (fault) that can play a role in a divorce case is domestic violence. Domestic violence will be taken into account with regard to matters such as child custody that involves the fitness of the parent. So keep in mind that “no-fault” in the marriage zone simplifies the process of getting a divorce. It does not mean that bad behavior will have no impact on the case. As a purely practical matter, a divorced person should be able to view exactly where the fault was that caused the demise of his/her marriage.

Friday, July 11, 2008

The Marriage Zone: Mediation


Mediation plays an important role in most family law cases. If you and your spouse cannot agree on all the issues in your case, the court will require that you attend a mediation before you can have the court decide the issues in your case after a hearing. It is important to know what mediation is and what it can do for you.

Mediation is a process involving an objected third-party who attempts to help the parties reach a voluntary resolution of their issues. The mediator’s only agenda is to try to settle the case. Mediation is not arbitration. Arbitration is a process that involves an objective third-party who actually decides the issues between the parties.

It must be emphasized that mediation is a voluntary process. While the court may order you to attend a mediation, it is up to you whether or not you are willing to reach a settlement or partial settlement at the mediation. Mediation works. This is why the courts require it before they are willing to hear your case. You may wonder why a mediator is ever required if both parties are represented by attorneys. The mediator can still be invaluable in providing a different perspective. Sometimes, a party needs to hear the hard facts from someone other that his/her attorney. There is also a hybrid process called mediation/arbitration (med/arb). A med/arb starts out exactly like a mediation. However, if the parties can’t reach a complete settlement as to all their issues at the end of the mediation, the mediator switches gears and becomes an arbitrator and makes a decision as to any remaining issues. The med/arb model is becoming more popular. A med/arb will typically involve significantly less litigation costs than a regular hearing before a judge.

In the “Marriage Zone”, mediation is your friend. In a family law case, both parties are usually more satisfied with a settlement that they have mutually arrived at compared with a ruling imposed by a court.



Thursday, July 3, 2008

Divorce in Colorado -How Long Does It Take?

When I speak to someone for the first time who is interested in getting a divorce or a legal separation, one of the first questions they ask is: How long will it take? The theoretical shortest amount of time it will take to get your divorce or legal separation is 91 days from the time your case is filed with the Court. Colorado Legislature has passed a law that requires the judges to wait 90 days after the case is filed before they can issue your divorce decree or decree of legal separation. There are no exceptions to this rule. There is no way around this rule. It is human nature that after someone makes the difficult decision that he or she wants to get a divorce or a legal separation, he or she then wants the desired results to occur as soon as possible.

I do not know the exact reason for the 90 day waiting period. However, I can speculate that the Legislature felt it was wise to provide a waiting period to prevent people from making hasty decisions regarding such serious arrangements as a marriage.

How long your case will take depends upon you and your spouse. If you and your spouse cooperate and agree as to all the financial and parenting aspects of the case, your case may only take 91 days until the decree is entered. The more assets and debt that you have and the more complicated your financial arrangements are, the likelihood is that your case will take longer to resolve, because assembling all the information and getting all the expert input is likely to take longer than 90 days.

It is important to remember that anything that you and your spouse don’t agree on, the judge will ultimately have to decide at a hearing. Judges are very busy, and getting time for a hearing will usually place you well past the 90 day waiting period. Absent unusual circumstances, your divorce or legal separation, however complicated, should not take more than a year to complete.

If you want your case completed as soon as possible after the 90 day waiting period has expired, you need to be organized, and be willing to cooperate with the other party. It's the Law - there is just no getting around the 90 day waiting period.