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DIVORCE / DISSOLUTATION OR LEGAL SEPARATION WITH NO CHILDREN INVOLVED

OVERVIEW OF PROCESS

  • FILE – The first step is to file the Petition for Dissolution of Marriage or Legal Separation.  Second, serve or have Spouse sign a Waiver of service.
  • MEDIATION –  Mediation can be ordered by the court at any point prior to any court hearing.
  • TEMPORARY ORDERS HEARING – A Temporary Orders Hearing can be requested by either party at any point.
  • 90 DAY WAITING PERIOD – There is then a ninety (90) day waiting period once the Service or Waiver of service has been property completed in order for the Dissolution or Separation to be final.
  • DEADLINES
    • SWORN FINANCIAL STATEMENT / DISCLOSURES – Only 42 days after service is complete the Sworn Financial Statement / Disclosures are due to the Court.
    • MANDATORY INITIAL STATUS CONFERENCE – Also only 42 days after service there is a Mandatory Initial Status Conference or Stipulated Case Management Order due to the court.
  • SETTLE OR PERMANENT HEARING / TRIAL After the 90 day waiting period, if agreements have been reached on all issues and the parties agree to settle, or there is an irresolvable dispute between the parties, the documents may be filed to complete the dissolution or separation.
    • SETTLEMENT If there is a complete settlement between the parties on all issues they may file the Proposed Decree for Dissolution of Marriage or Legal Separation, Separation Agreement and Support Order if maintenance is involved.
    • IRRESOLVABLE DISPUTE If there is an irresolvable Dispute between the Parties they must file a Notice to set Final Orders and comply with the Case Management Order issued at the time of setting.  Each side much submit a Proposed Separation Agreement and proposed Support Order if maintenance is involved and prepare for a Permanent Orders Hearing / Trial.
  • JURISDICTION
    • Jurisdiction lets us know what court we can file the Petition for Dissolution in and how.  In order to file for Divorce / Dissolution inColorado two conditions have to be met.
      • 1)  One of the parties must have been domiciled in the state of Colorado for ninety (90) days before the petition is filed.  Domicile means residence, although there is sometimes dispute over where someone’s domicile legally is.

AND

  • 2)  The Petitioner (party asking for the divorce / dissolution) either enters into a joint petition with the respondent, the respondent agrees to accept service and does, or the Petitioner obtains valid service of process by other legal means such as hiring a process server to serve them in person.
  • DISCOVERY AND DEADLINES
    • Discovery is a very complex process in all family law cases and has strict guidelines and rules.  If you do not have legal counsel, you will be held to the same standards as an attorney and requirements of producing, on time, all of the materials listed below and in some instances many more.
      • GENERAL REQUIREMENT – The general rule is that both parties must provide full and honest disclosure of all facts that materially affect their rights and interests and those of the children if any are involved in the case.  This is an absolute, affirmative duty to disclose information without waiting a specific or even general request from the opposing party.  In addition to the extremely broad rule, there are also some specific guidelines and deadlines govern what is required to be turned over and when.
      • MANDATORY DISCLOSURES – Below is a list of Mandatory Disclosures that are due within 42 days after the service of the Petition.  The mandatory disclosures include the following:
        • Sworn Financial Statement
        • Most recent three years of personal and business income tax returns.
        • Last three years of personal financial statements.
        • Last three years of business financial statements.
        • Real estate documents reflecting title and value.
        • Documents creating debt and the most recent debt statements showing balance and payment terms.
        • Documents stating the current value of any investments.
        • Documents reflecting employment benefits.
        • Documents reflecting retirement plans and current values and plan summary descriptions.
        • Most recent documents identifying all bank accounts and other financial institution accounts and stating current values.
        • Documents verifying income from employment, investment, self-employment, and any other sources.
        • Documents related to life, health, and property insurance policies.
        • Documents related to extraordinary expenses.
      • CERTIFICATE OF COMPLIANCE Required to be filed with the mandatory disclosures.  If you do not file a document you have to state a reason why you did not file it.
      • SUPPLEMENTING THE DISCLOSURES There is a continuing duty to supplement or amend any disclosure in a timely manner.
      • FIVE YEAR LOOK BACK Pursuant to rule, the court retains the ability to look back 5 years after the entry of final decree or judgment to allocate material assets that were omitted or misstated and that materially affect the division of assets and liabilities.  It does not apply to omitted income, which typically would be addressed in a motion to modify child support or maintenance.
      • WITNESSES All witness have strict restrictions on when and what material must be provided to the opposing party at certain points throughout the proceeding.  For instance, 63 days prior to the hearing all expert witnesses must be endorsed and within 56 days a letter summarizing their opinion must be provided.  Rebuttal reports must be provided 21 days after receipt.
  • DIVISION OF PROPERTY
    •  GENERAL Colorado’s property distribution laws separate property between Marital Property and Separate Property.  Marital property is all property not acquired by gift, bequest, devise, or descent.  Property acquired in exchange for what would otherwise be marital property, is not marital property.  It also does not include property acquired by a spouse after a decree of legal separation or property validly excluded by agreement of the parties.
    • VALUE The next step is to obtain the value of the property.  Property will be valued as of the date of the decree or hearing.  If a party dissipates marital assets in contemplation of divorce, those assets must be valued as of the last date they existed as marital property.
    • DISTRUBUTION The final step is where the court is required to equitably distribute the property.  Equitable does not necessarily mean equal.  In dividing the property, the court is instructed to set apart to each spouse his or her respective separate property and make a division of marital property, as the court deems just, after considering all relevant factors, including but not limited to:
      • The contribution of each spouse to the acquisition of the marital property, specifically mentioning a homemaker
      • The value of the property set apart to each spouse
      • Economic Circumstances of each spouse at the time of the division of property is to become effective, including the preference of awarding the familial home or right to live therein to the spouse with whom any children if any, reside the majority of the time and
      • Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.
      • No one particular enumerated factor is intended to have more weight than the others; in the final analysis, the court has wide judicial discretion in providing an equitable distribution of property upon dissolution.
  • MAINTENANCE
    • Maintenance is ordered by the court, if ever, after dividing the property in question.  The court will consider statutory standards to determine whether maintenance is necessary to provide for the reasonable needs of one of the parties.  In order for a court to order maintenance, it must find three circumstances exist:
      • The moving party lacks sufficient property to provide for his or her reasonable needs.  (Property including both former marital and separate property).
      • Is unable to support himself or herself through appropriate employment

OR

  • Is the custodian of a child whose condition or circumstances make it appropriate that the moving party not be employed outside the home.
  • DEFINITIONS
    • Reasonable Needs – Depends upon the particular facts and circumstances of the parties’ marriage.  May include consideration of the standard of living maintained during the marriage.  It is a necessary starting point for the trial court’s determination of a particular spouse’s reasonable needs or whether a spouse would be able to support himself or herself thorough appropriate employment.
    • Appropriate Employment – Liberally construed to hinge on the economic circumstances and reasonable expectations established during the marriage.
    • FACTORS CONSIDERED BY THE COURT
      • The moving party’s needs and financial resources
      • The time necessary for the moving party to acquire sufficient education or training to enable him or her to find appropriate employment
        • Dependent on type of employment during marriage and expectations as well as ability.  A desire for education is considered by the court.
      •   Standard of living during the marriage – Does not require status quo nor bar it
      • Length of marriage
      • Age, physical and emotional condition of moving party
      • Ability of spouse seeking maintenance to meet his or her own needs while meeting those of the spouse seeking maintenance – The salary of the non-moving spouse is relevant
      • Tax Effect – Generally the spouse who pays can deduct the payment and the spouse who receives the payment reports it as income, the court can consider this when awarding or denying maintenance.
      • Present Circumstances of the Parties
    • DURATION OF MAINTENANCE
      • Continuing or for a Fixed Term, the court can order maintenance upon its discretion.  The court can also order incremental reductions or increases in the maintenance.
    • WAIVER OF MAINTENANCE
      • Either or both parties may waive maintenance if the court finds that the waiving spouse has complete knowledge of the right to maintenance, and waiver is knowing and voluntary.  Waiver of maintenance is permanent, it cannot be raised in any court at any time in the future, no matter how the circumstances have changed.  Failure to request maintenance at permanent orders is deemed a waiver of maintenance.
    • TEMPORARY MAINTENANCE
      • 75K Combined Income or Less: There is a rebuttable presumption of temporary spousal maintenance where the combined annual income of the parties is $75,000 or less.  It is calculated as follows: Forty percent of the higher0earning spouse’s monthly gross income minus fifty percent of the lower-earning spouse’s monthly gross income.  If the result of the calculation is zero or negative, the presumption is that temporary maintenance is not awarded.  Courts shall deviate from the formula if application would be inequitable or unjust.
      • Greater than 75K Combined Income: In those cases whether the combined annual incomes of the parties are more than $75,000, the court may award temporary maintenance using the same factors above.
    • TERMINATION OF MAINTENANCE
      • Maintenance is terminated by the remarriage of the party receiving maintenance.
      • Death or injury of either party terminates maintenance.
  • MEDIATION
    • Mediators do not issue binding opinions, recommendations or rulings.  They listen to both sides of the case and make recommendations, trying to facilitate a resolution and settlement of the parties.  Attorneys can be present during the mediation and it is recommended that they are.  Mediation can be helpful if thought and care go into choosing the mediator, you are prepared and goals are set prior to the meeting.  Many courts require mediation and are allowed to by statute prior to any court hearing.  Mediation sessions are confidential.  Mediation can have advantages such as giving the opposing party a chance to have a third party recognize and point out the problems and issues with some of the positions she has taken for instance.
  • SETTLEMENT
  • PERMANENT ORDERS HEARING / TRIAL

Decker & Jones

Decker & Jones - Denver Criminal Defense Attorney

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