Frequently Asked Divorce & Family Law Questions
Family law matters can be very complex and it is only natural for you to have many questions about what might happen. The following are some brief answers to some frequently asked questions about family law and divorce proceedings. For specific information regarding your personal situation, please do not hesitate to call The Gasper Law Group directly.
Colorado Frequently Asked Divorce Questions
What is considered a “family law” case?
Family law encompasses many different issues that may affect you and your spouse, domestic partner, child, or other close relatives. Common family law cases can involve:
- Divorce, Legal Separation & Annulment
- Child custody
- Child support
- Domestic violence and restraining orders
- Step parent adoption
- Grandparent rights and visitation
Why do I need a family law attorney?
Like any type of legal matter, family law cases involve complicated laws and rules that must be followed to obtain the most favorable result. An attorney will know how to address any complexities in your case while also protecting your rights and interests the entire time.
I want a divorce from my spouse. What do I do first and what are my rights?
If you are considering divorce, the first step to take is to have an initial meeting with a skilled Colorado divorce attorney. They will help you explore your options for dissolving your marriage and will advise you of your many rights in the process, which include the right to equitable distribution of property, financial support, and parental rights.
What are the grounds for divorce in Colorado?
Colorado law dictates no-fault divorce cases, which means that either spouse can claim the marriage is irretrievably broken and may seek dissolution of the marriage.
How long do I have to live in Colorado to file for divorce here?
In order to file for divorce in Colorado at least one of the parties has to currently reside in Colorado and must have lived in the state for at least 90 days. Typically your will not have to provide any documentation to prove your residency. You will simply sign and file document with the court stating that you meet the residency requirements. In addition, at a final hearing you will be asked if you were at the time of filing and for at least 90 days prior a resident of the state of Colorado. If you were to answer “no” to that question, the Judge would have no choice but to dismiss your case for lack of jurisdiction. The experienced family law attorneys at Gasper Law Group will make sure you meet the statutory residence requirement.
How long does it take to get divorced in Colorado?
In Colorado there is a “cooling off period” for getting a divorce. This waiting period is 91 days and it begins when the Petition for Dissolution is filed if the parties file a joint petition. If one party files, the 91-day wait begins as soon as the other party has been served notice. This means that if the parties agree as to terms and there are no issues that a Judge will have to decide, the divorce can be finalized as soon as the 91-day waiting period has passed.
If the parties are not able to reach agreement the time line is dependent upon the complexity of the issues to be litigated, whether there will be a need for expert witnesses (such as a financial expert or Child and Family Investigator), the court schedule, and various other factors. In cases requiring a Final Orders Hearing, it is typical for a divorce to take several months or even longer.
It is not uncommon for a highly contested divorce to take 1 to 2 years to fully litigate and take to trial. The experienced attorneys at the Gasper Law Group can give you an idea of how long it should take to get the divorce done based upon the particular facts of your case.
How much does it cost to get divorced in Colorado?
First, the court clerk charges a filing fee to file a Petition for Dissolution. The current filing fee is $195.00. Second, if you and your spouse do not file a Joint Petition, you will need to have him/her served. The Sheriff or a licensed process server will usually charge about $45.00 for this service. Technically any person over the age of 18 can serve the other party, but if they are not a Sheriff deputy or a licensed process server, they may be required to appear in court and testify under oath that they in fact served the opposing party. If they are a sheriff or a licensed private server, they can simply file a return of service, notifying the court when and where service took place.
Finally there is the issue of attorney fees. This varies widely from case to case. If your divorce is uncontested, an attorney will usually charge a modest fee to walk you through the process and make sure everything is done properly. If your case becomes contested, attorney fees can increase dramatically. It is important that you get the advice of a qualified, experienced family law attorney in either case so as to protect your rights and get an estimate of the costs you should expect.
What is an Automatic Temporary Injunction?
The Automatic Temporary Injunction is a Court Order that goes into effect at the time a Petition for Dissolution is filed if the parties file a Joint Petition, or at the time the opposing party is served notice if they are not filing a joint petition. This court order basically orders the parties to maintain the status quo at least until they can get in front of a Judge. Provisions of the Automatic Temporary Injunction include the following:
- Neither party is to remove any children of the marriage from their current school or daycare.
- Neither party is to take out loans or spend money except in the regular course of operating a business or to provide for every-day living expenses.
- Neither party is to change insurance coverage on homes, vehicles, health or life, or change beneficiaries.
- The parties can agree or the court can approve deviations from the provisions of the Automatic Temporary Injunction when appropriate.
NOTE: if a party does spend money after the Injunction goes into effect, it is critical that they keep accurate and complete records of those transactions, as the court can require an accounting later.
If an accurate accounting is not kept, the party that spent the money may have the amount spent deducted from their part of the martial estate.
The experienced family law attorneys at Gasper Law Group can advise you based upon the specific facts of your case.
Can I go back to my maiden name after the divorce is final?
Surprisingly the answer here is no. Colorado law provides that a party to a divorce can be restored to a former name as part of the divorce process. This means that if you want to go back to your maiden name or a former married name, you can do so in the divorce. If, however, the language restoring you to your former name is not included in the decree and you later decide to go back to the former name, you will be required to file a separate action.
There are filing fees and likely attorney fees involved in this process as well as the time and aggravation of having to go through a separate legal process. The moral of the story here is to decide if you want to go back to a former name and if so, make sure it is included in the divorce decree. The experienced family law attorneys at Gasper Law Group will make sure this issue is addressed properly so as to prevent the added expense of a separate proceeding.
Does it matter which party is responsible for the break-up of the marriage?
Colorado is a no-fault state. This means that the Judge is not concerned with why the marriage is ending or who did what that resulted in divorce. The fact that one party had an affair, enjoys watching pornography, developed a substance abuse problem, pilfered away the family’s resources, or in any other way caused the break-up of the marriage is not an issue before the court. The only way these things are relevant is if there is a nexus between the conduct and the party’s ability to parent children.
If you can demonstrate that the party engaged in inappropriate conduct in the presence of the children, then that is relevant to the Child’s best interests and can be presented to the court for that purpose. Many people find it hard to accept that as far as the court is concerned it does not matter why the marriage is ending or who is at fault, but that is the law in Colorado. The experienced family law attorneys at Gasper Law Group can advise you in this regard based upon the specific facts of your case.
What is the difference between a contested and an uncontested divorce?
In an uncontested divorce, you and your spouse agree on all issues from the beginning. If you disagree on any issues, the case will be considered a contested divorce.
Are there alternatives to getting a divorce?
Colorado law does recognize legal separation. The process is the same as getting a divorce, with the difference that when the Decree of Legal Separation issued the parties remain married. It is important to know that either party can change the Legal Separation to a divorce at any time during the proceeding or within 6 months after the decree has been entered.
There are a few reasons clients decide to do a legal separation. Usually it is because at least one party realizes that the marriage is not working and they want to allocate financial obligations, assets, parenting time, or alimony and leave open the possibility of reconciliation. Another typical reason would be religious beliefs. Some faiths do not recognize divorce.
Here it is important to note that the other party can change a legal separation to a divorce at any time, and a party cannot stop that based upon their religion. The experienced family law attorneys at Gasper Law Group can advise you as to whether a legal separation fits your situation.
What is a marital settlement or separation agreement?
There are many issues that must be resolved when a divorce occurs, including division of property and debts, child custody and support, and spousal support, among others. A marital settlement sets out how you have agreed – or how the court has ordered – for each of these issues to be resolved. In some cases, an agreement may be entered into during the separation phase. This can be integrated into the final settlement.
Colorado Frequently Asked Family Law Questions
Who decides how property and debts are divided in a divorce?
Best-case scenario, the parties decide how they will divide their property and debts. Under Colorado law, all assets and debts acquired during the marriage are part of the marital estate and are up for equitable division as part of the divorce process. In many cases the parties agree as to who will take what assets and who will pay what financial obligations. This agreement may come early on, in which case the case will likely be uncontested, or it may come after the parties have participated in mediation after their attorneys have compiled their financial information and advised them. Ultimately, the court will decide how the assets and debts will be divided in the absence of an agreement. The experienced family law attorneys at Gasper Law Group can help you through this stressful but very important part of your divorce.
Will I lose my 401K or Retirement if I get divorced?
Under Colorado law, any asset acquired during the marriage is part of the marital estate and is subject to equitable division upon divorce. This means that any portion of your retirement or 401K that was accumulated during the marriage will be divided between the two parties. For example, if you have been paying into your 401K for 10 years and you have only been married for 5, your spouse would be entitled to a fourth of the total.(half of the amount accumulated during the 5 years you were married).
If you have been married the entire time you have been paying into your 401K or retirement plan, the asset will be divided equally. Of course if your spouse has a 401K or retirement plan, the same goes for that asset. You would be entitled to half of the amount accumulated during the marriage. In some cases, these offset and the parties each walk away with all of their retirement or 401K. When this is possible it saves both parties the cost of dividing the assets.
Under no circumstance would you be forced to give your spouse your entire 401K or retirement plan. The experienced family law attorneys at Gasper Law Group will gather the financial information on both parties and advise you based on the facts of your particular case.
Should I get a Prenuptial Agreement?
Prenuptial agreements are enforceable under Colorado law. From a strictly legal standpoint, every couple should probably have a prenuptial agreement. While planning their wedding, most couples do not want to think about what will happen if their marriage ends in divorce. The fact is that having a prenuptial agreement does not mean you think your marriage will fail. One benefit of doing a prenuptial agreement unrelated to a subsequent divorce is that it opens a dialogue between the parties about what their financial future together is going to look like.
A marriage is a multi-faceted relationship and one of the parts of that is inevitably a financial component. It is better to consider these issues as you enter into a marriage instead of playing by ear as you go. Finally, if the parties have children from previous relationships, own property coming into the marriage, or have been married before it is even more advisable that they have a prenuptial agreement so both parties go in with eyes wide open. The cost of a prenuptial is usually modest and can save the parties stress and expense later even if they remain married forever.
The experienced family law attorneys at Gasper Law Group can help with prenuptial agreements based upon your specific facts and needs.
How do I file for custody?
You can request a certain custody arrangement by submitting a parenting plan with your divorce decree or, if your case does not involve divorce, by filing a petition for Allocation of Parental Responsibilities.
What is the difference between sole custody and joint custody?
In the state of Colorado, the law does not actually use the terms “sole custody” or “joint custody.” Whichever parent has the children the majority of the time is considered the Primary Residential Parent. If there is an equal sharing of parenting time, neither parent is the primary residential parent. It is most common for parents to share joint major decision making responsibility regardless of the number of overnights each parent enjoys and it is also possible for one parent to have sole decision making even if overnights are divided equally. Parenting time and decision making are separate issues.
How is child support determined in a divorce or child support case?
Child support in Colorado is determined by a specific formula set out by state law and courts only have very limited discretion to vary from the formula under narrow circumstances.
What is a parenting plan?
A parenting plan is a detailed document submitted to the courts that defines the “rules of the game” for how you and your child’s other parent will share both parenting time (referred to sometimes as “physical custody”) and decision making (referred to sometimes as “legal custody”) of your child. It provides a detailed description of schedules, parenting time, and parenting responsibilities.
If you are facing a divorce, child custody, or child support case, please contact The Gasper Law Group at 719-227-7779 to discuss your situation with a knowledgeable Colorado Springs family law attorney.
How do I retrieve copies of my court documents?
After a divorce or custody case people often ask where they can go to get copies of their respective court documents. The issue also arises when people are represented by an attorney and then the attorney withdraws from the case. It is common for individuals to come into our office requesting we obtain copies of their records on their behalf because they do not know how to obtain the information themselves. If parties still reside in El Paso County they can go to the courthouse and request the documents they need. Also, the court has a link to allow parties to retrieve copies of their court documents. Parties can get certified copies of these documents as well. The link is: https://www.courts.state.co.us/Self_Help/Research/index.cfm
It is important to know that the Orders from the case are the laws surrounding your divorce or custody proceedings. Therefore, having copies and access to this information is necessary after one’s case is closed.
The Gasper Law Group endeavors to provide clients with copies of all pertinent documents and information throughout the course of our representation, but if you need assistance retrieving your documents please contact our office.