Tuesday, June 24, 2008

It’s the Law! Divorce and Legal Separation

In Colorado, folks who are married and decide to no longer be together have three choices: separation, legal separation, and divorce.
In a simple separation, the parties go their separate ways with or without a written separation agreement. They are still married. They can’t get married again until they are divorced. They are still subject to the laws of marital property. Absent a well-crafted separation agreement, any income they receive during the separation will be considered marital property and will be split accordingly in any subsequent court action for divorce or legal separation. There are exceptions to this rule that are beyond the scope of this article. The assumption that “whatever is yours is yours” if you get it during a simple separation, could be disastrous.

A “legal separation” involves a court proceeding and a court order. In fact, a legal separation involves almost the same legal principles and paperwork as a divorce. Division of property, maintenance (alimony), child support, and parenting time (visitation) will be addressed in the Court’s order. Six months after the judge enters the order of legal separation, either party may file a motion requesting that the legal separation be turned into a divorce. The motion will be automatically granted. If neither party wants a divorce, the legal separation can proceed indefinitely. If you have a legal separation, you are still married. You can’t get married again until you are divorced.

There can be some benefit to a legal separation as opposed to a divorce. For example, a spouse may be able to stay covered on the other spouse’s health insurance policy. If you are legally separated, the marital property laws no longer affect you. The income you receive during a legal separation really is yours.

Divorce (dissolution of marriage) is the most popular choice when folks part ways. The couple’s financial issues and parenting issues are resolved, the parties are free to remarry, and the parties are no longer affected by the marital property laws.

Remember, you may not understand the law, you may not like it, and you may not think its fair, but it’s the law!




Friday, June 20, 2008

Anatomy of a Divorce Case 2

This article continues the overview of a typical divorce case. The case has been filed, and the respondent has been served with the summons and a copy of the petition. A response to the petition has been filed, and an initial status conference has been held.

The parties have 40 days after the filing of the petition to prepare and exchange financial information such as financial affidavits, pay stubs, and tax returns.

The parties may request a temporary orders hearing. Temporary orders may be necessary if the parties cannot agree on how to handle matters pending the resolution (final orders) of the case. The Court may require the parties to try to settle their temporary differences before it will grant a temporary orders hearing. Most cases do not require a temporary orders hearing.

If the parties are in total agreement on all matters, the case can now proceed to final orders. However, the Court must wait 90 days from the filing of the petition and service on the respondent before it can issue final orders.

If the parties are not in total agreement, the Court will require the parties to mediate their dispute before the Court will hold a trial to settle any differences. Mediation is a process where a trained third party attempts to help the parties settle their differences. It is a voluntary process. The mediator does not make decisions for the parties. The parties make their own decisions.

Most cases settle. The parties reach an agreement on all the issues. Whatever the parties cannot agree on, the Court will decide at the trial (the final orders hearing). The final orders hearing is held by the Court without a jury. However, all the rules of court regarding trials apply (rules of evidence, etc.).

Before the Court will issue the final orders, whether the parties have settled or a trial was held, the parties must have filed financial affidavits and a certificate stating that the parties have provided mandatory disclosure of their finances. If children are involved, the parties must have attended the parenting class and provided the court with a proposed parenting plan.

The procedure you must follow to get a divorce is the same as other law. You must remember that: you may not understand the law; you may not like it; and you may not think its fair; but it’s the law!

Anatomy of a Divorce Case I

This article presents an overview of the structure of a typical divorce case in Colorado. It provides a general summary of the different steps involved in the Court process. Your case may be different depending on various factors such as whether the parties are represented by lawyers.

A divorce case is a lawsuit similar to other lawsuits such as negligence arising from an automobile crash injury. However, instead of a plaintiff and a defendant, there is a petitioner and a respondent; and, instead of a complaint, there is a petition. The petition requests that the court enter an order, a decree, for divorce. The respondent files a response to the petition. The petitioner must be a resident of Colorado for not less than 90 days preceding the filing of the petition.

Once the petition is filed with the court, the court has jurisdiction (power) over the petitioner. Once the petition and a summons are served on the respondent, the court has jurisdiction over the respondent. The respondent can be served in three ways. The most common are personal service by a process server – a deputy or other process serve gives a copy of the summons and the petition, or the respondent signs a waiver and acceptance of service. If the respondent can’t be located, service by publication is the alternative.

Once the petition has been filed and the respondent has been served, the court cannot divorce you until a minimum of 90 days have passed. One the petition is filed and the respondent is served, an automatic injunction goes into effect that prevents the parties from doing things like taking the children out of state without the consent of the other party or an order of the court. The automatic injunction also prevents doing other things without the other party’s consent like transferring marital property or canceling health, auto, or life insurance.

So, your case has been filed and the other party has been served with the paperwork. You now have a court case. The next step is an initial status conference. The purpose of the initial status conference is for the court to take an active role in managing the case. Think of the initial status conference as the first hearing in your case. The Court will enter an order regarding things like future scheduling and the exchange of financial information between the parties.

The exchange of financial information between the parties is critical to the whole process. The law provides for mandatory disclosure. The idea is that the parties and the court can make the best decisions only if they have complete and accurate financial information. Don’t even think about withholding relevant financial information. If you are dishonest, your credibility will be lost and you may be subject to other sanctions.