Parting from someone with whom you’ve had a significant relationship is rarely easy. It is not only hard for you, but for your former partner as well. While protecting my client’s interests is my first priority, my overall goal is to pursue resolution that is for the highest good of all parties concerned, particularly when the interests and well-being of children are involved. In keeping with my philosophy, I approach the conflict and challenge in divorce proceedings as an opportunity for both parties to learn and grow and – ideally – come to a place of mutual acceptance and respect.
Colorado law uses the term “Dissolution of Marriage” to refer to divorce. Colorado is a “no-fault” divorce state, meaning that the court will not try to assign responsibility for the failure of the marriage. All that is required to file for divorce is that the marriage is “irretrievably broken”.
In most relationships, one partner earns more than the other and contributes a larger share of their earnings to the household budget than the other. This is neither good nor bad in itself - it merely reflects choices made by the couple to deal with, for example, child care and rearing. It does mean, however, that when the couple parts ways that the partner who earns less may not have the financial resources to live on their own and would require financial support from the partner who earns more. This is called “spousal support” or “alimony”.
Colorado law refers to this as “spousal maintenance.” When it comes to spousal maintenance, Colorado courts seek fair and equitable financial arrangements between the divorcing parties, and do not include considerations of fault or punitive judgments when calculating spousal maintenance. Colorado courts consider a variety of factors, including:
- The length of the marriage – longer marriages often lead to longer periods of support
- The “standard of living” that the couple enjoyed during their marriage
- The earning potential and current financial resources of the partner requesting spousal maintenance and the ability partner that provides the maintenance to support two households
- The physical health (including age) of the partner requesting support
All of these considerations are independent of child support, which is treated separately.
In my family law practice, the well-being of children of divorcing parents is always my very first concern. Divorce can be very traumatic for the children involved, so in addition to seeking financial support for the basic needs of children (e.g., food, shelter, clothing, education), I may recommend to divorcing parents ways for making their divorce easier, more understandable, and less impactful for their children. This may include recommending that the children talk with counselors to help them understand and cope with the changes in their life brought on by divorce.
Both parents have an obligation to provide for the needs of their children. Child support is the financial support provided by the non-custodial parent to the parent with primary custody of the children (great than 50%). It is important to understand that child support is completely separate from spousal support and is not considered “extra money” for the former spouse – child support is support owed to the child.
Child support covers the basic needs of the children, and may cover other costs. Under Colorado divorce law, child support is calculated according to a formula called the “child support guidelines”, which is based on the parent’s income and custodial times. Also, adjustments may be made to account for health insurance, child care, etc. Deviations from the guidelines may be allowed as well in accordance with the joint wishes of the parents or if deemed necessary by the judge. Child support continues until the child emancipates which is generally at the earliest of the child turning 19, graduating from high school, becoming self-sufficient, joining the military, or marrying or death.
Parenting Rights & Responsibilities
Parental Responsibilities is an umbrella term and refers to the parents’ rights and responsibilities with regard to “parenting time” and “decision-making” for the couple’s minor child or children. Parenting time used to be known as physical custody or visitation and refers to how much time each parent spends with the minor child. Decision-making used to be known as legal custody and refers to who makes which major decisions (medical, education & religion) for the minor child.
Colorado law acknowledges that children are best served when both parents are involved in the child’s life. However, it’s important to note that Colorado is not a “50/50” state as some may believe. Also, Colorado law is gender-neutral, meaning that neither mother nor father is presumed to be the best parent by virtue of his or her gender. Rather, the standard used to determine these matters is “the best interests” of the child.
When determining the best interests of the minor child to allocate parenting time, the Court considers various factors. Some of these factors include:
- The wishes of each parent
- The wishes of the child if the child is sufficiently mature
- The child’s relationship with his or her parents, siblings and anyone else who may significantly affect the child’s best interests
- The child’s adjustment to his or her home, school, and community
- The mental and physical health of all individuals involved
- The ability of each parent to encourage the sharing of love, affection and contact between the child and the other parent
- The parties’ past pattern of involvement with the child
- The physical proximity of the parties to each other
- Whether a party has been the perpetrator of child abuse/neglect or spousal abuse
- The ability of each party to place the needs of the child ahead of his or her own needs. . .
When determining the best interests of the minor child to allocate decision-making responsibility, the Court considers these same factors in addition to:
- The ability of the parties to cooperate and to make decisions jointly
- The parties’ past pattern of involvement with the child
- Whether mutual decision-making responsibility will promote contact between the parent and the child
Taking all these factors into account and weighing them against the best interests of the child, the judge will make the final decision on the allocation of parental responsibilities unless the parents come to an agreement regarding the allocation of parental responsibilities that reflects an understanding of the children’s needs and serves the children’s best interests. When parents are able to put their differences aside for the sake of the children, they are truly in the best position to determine what is best for their children and set their children up for success. And, judges are happy to defer to the parents’ agreement provided that agreement reflects the best interests of the child.
When a couple divorces in Colorado and there is no agreement between the parties regarding the division of property, the Court considers several factors to decide how ownership of the property will be assigned. First, an assessment is made on what is “marital property” and what is “separate property”. Separate property is anything owned by a spouse prior to marriage or any gift or inheritance received during the marriage. Marital property is anything acquired by either spouse between the start of the marriage and the formal decree of separation; appreciation on separate property (e.g., increase in value of real estate holdings) that occurs during a marriage is also considered marital property.
Colorado is an “equitable division” state, meaning that marital property is divided fairly based on the circumstances (including economic) of each spouse, and “fairly” does not mean “half” or “equal”. For example, the spouse who is the primary caregiver for the children may be favored in assignment of the family home. Colorado property division does take into account marital misconduct, meaning that the offending spouse is not “punished” when dividing property. Each spouse’s contribution to the property acquired during marriage is considered, including contributions as a homemaker – a spouse who is a full time caregiver for the couple’s children contributes as much as the spouse who is employed outside the home and earns income.
Post Decree Modification
Even the best crafted final Court decree may require revision as the circumstances of the parties or children change over time. Some of the reasons may include:
- Job loss for the parent paying child support or spouse paying maintenance
- Significant change in income of either party
- Change in the needs of the children
- Geographic move by a parent
- Work schedule changes or military enlistment or deployment
- Involvement of grandparents or others
- Emancipation of a child
Contempt generally consists of disorderly behavior toward the Court or judicial proceedings or disobedience of any lawful Court order.
There are two types of contempt: direct and indirect contempt. Direct contempt refers to behavior that takes place in the presence of the Court and is so extreme that no warning is necessary or behavior that has been repeated despite the Court’s warning to stop. Indirect contempt refers to contempt that occurs out of the presence of the Court.
In family law, the most common type of contempt is indirect contempt where a party has failed to meet their obligation under a Court order. If one party believes that the other party has not met a Court ordered obligation, that party may petition the Court for a contempt hearing to show the other party’s failure to abide by the Court’s order. At that hearing, the other party has the opportunity to show that they met the obligation or that they have “just cause” for violating the Court order (e.g., a loss of employment for failure to pay spousal/child support.)
If contempt is found, the Court may:
- issue an order designed to encourage the person to comply with the order
- order payment of fines for every day that he or she is in contempt
- order payment of restitution to compensate for the damages that the other party has suffered, including cost of bringing the contempt action
- consider imprisonment in extreme circumstances
- modify allocation of parenting time when parenting time orders are disobeyed