Frequently Asked Questions

Divorce
Alternative Dispute Resolution
Children
Attorneys


Divorce

What is ‘dissolution’ of marriage?

Dissolution is just another name for divorce.

What are valid grounds for divorce?

In Colorado, divorce is “no fault” which really means if someone wants a divorce, they will get one. It used to be that you had to prove fault, cruelty, or adultery in order to obtain a divorce but now the only ground for a divorce is that the marriage is irretrievably broken. The shift away from fault is often confusing to divorcing spouses for whom the behavior of the other spouse and the demise of their relationship is often extremely relevant. But the courts not only are not interested in hearing about bad behavior, moral failings, cheating, and the like, but they often are irritated when divorcing parties insist on talking about it. Sometimes it is very surprising to learn that such issues are simply not relevant to the division of property, or other financial issues like support. Economic fault, which is where a spouse is dissipating and wasting marital funds in contemplation of divorce, can be relevant. When it comes to deciding child custody issues, abusive behavior can be relevant, but is not always.

What is a Decree of Dissolution?

The decree is the actual court order that grants your divorce. It will contain information like a name change and details of whether or not a Separation Agreement was entered into.

What is "service of process"?

After the Petition is filed, the other spouse must receive proper notification that it has been filed. A copy of the Petition can be handed to your spouse who can sign a Waiver of Service. The Waiver simply acknowledges the person has received a copy of the petition. Just to note, interested parties cannot serve the petition; you may have to hire a process server or use the Sheriff’s department to serve your petition.

What are the residency requirements?

Prior to filing your Petition for Dissolution of Marriage or Legal Separation, either you or your spouse must have resided in Colorado for at least the past ninety-one (91) days.

Does it matter to the merits of the case which spouse files?

No. There is no legal significance as to whether the husband or the wife files the petition. However, in a trial, the “order of presentation” is determined by who files first, so some attorneys believe that going first or last in making the presentation to the court confers some advantage. Usually, it is a wash and most would not advocate rushing to file for this reason alone. Having said that, it can matter where you file first if one person lives out of state. It is important you get legal advice as quickly as possible.

What is an "uncontested" divorce?

If both parties agree to everything that must be decided in a divorce, the court will generally approve an agreement between the parties as soon after the 91 days if the separation agreement has been submitted to the court for approval. In some cases, a separation agreement can be submitted without the parties having to go to court, in which case the decree can be entered without a hearing before a judge. In divorces where there are no minor children, this can be accomplished by filing an agreement, but in cases where there are minor children, the parties can only avoid court if they are both represented by attorneys who can ensure that the agreements around the children have been made in the best interests of the children.

What if there are disputed matters?

If you and your spouse cannot agree on all issues, you do not have an “uncontested” divorce and a trial may be necessary. Before a hearing is held, the court will require that you attempt mediation, as many issues can be resolved in mediation. If they are not, then the court will hold a trial to decide any disputed matters concerning parental responsibility, parenting time, support, division of property and debts, and the payment of court and attorneys’ fees.

There are several types of hearings that can happen in a divorce. If you cannot decide on things such as paying bills, who lives in the house if one of you moves out, or other issues that need to be settled before the divorce is over, you may have a “Temporary Orders” hearing. Emergency issues can be addressed on an emergency basis, but only if a court agrees that there is a true emergency. Most issues wait until the end, and are addressed at the Permanent Orders’ hearing.

What is an automatic injunction?

As soon as the Petition is filed, certain court orders automatically go into effect for the protection of the parties. The following automatic orders cover both spouses:

  1. Children shall not be taken from the state for any reason without agreement of the parties or court order;
  2. Neither party shall not disturb the peace of or harass the other, or the children;
  3. Property of the marriage shall not be hidden, destroyed, transferred, or borrowed against without consent, except in the usual course of business for the necessities of life; and
  4. No health, homeowner’s, renter’s, automobile or life insurance policies which provide coverage to either of the parties or the minor children or that names either of the parties or the minor children as a beneficiary will be cancelled or modified or allowed to lapse due to nonpayment of premiums except with 14 days advance notification and the written consent of the other party or any order of the court.

Like any court order, the court may enforce the automatic injunction with sanctions such as jail time, fines or other penalties.

What are temporary orders?

If your spouse is being physically abusive to you or to the children, refuses to provide reasonable support, refuses to give information concerning property, or refuses to permit reasonable parenting time, the court will hear your evidence and determine if you will get relief while the case is pending. The court may also provide temporary allocation of parental responsibilities, visitation, and support of the children, as well as temporary use of the family home. Many courts now require you to seek mediation before granting a hearing even on temporary orders’ issues.

What are court orders?

There are two types of court orders; orders you agree to which are then “entered” by the court, and orders that the court issues when you cannot agree on issues. An agreement reached by the parties becomes a court order only if approved by the court. The court is bound to accept most agreements under CRS 14-10-112, unless it finds that what you’ve agreed to is unconscionable or not in the best interests of your children. Court orders are enforceable through various means, such income withholding, enforcement proceedings relating to parenting time, or holding the person who violates an order in “contempt”. Your attorney can advise you what remedies are the most practical in your situation.

What is maintenance?

This is the financial support provided by one spouse for the other. Maintenance can be awarded in many circumstances, for instance where one spouse assists the other in obtaining an education, where one spouse requires time or training to become employed, or where there is substantial discrepancy between the incomes of the parties.

As of January 1, 2014, Colorado law provides courts with discretionary advisory guidelines for determining the amount and term of maintenance payments based on such factors as the incomes of the spouses and the length of the marriage. The advisory guideline amount of support is arrived at by taking 40% of the higher income earner’s monthly adjusted gross income less 50% of the lower income earner’s monthly adjusted gross income providing that the total amount of support of the recipient cannot exceed 40% of the total combined monthly adjusted gross income of both parties. Courts may also consider other factors like the financial resources of the parties and the lifestyle during the marriage in applying these guidelines on a case-by-case basis.

Unlike child support, maintenance is tax deductible by the paying spouse and is taxable income to the receiving spouse.

How is property divided?

In a divorce, the court recognizes two types of property in Colorado: marital property and separate property. For most people, anything purchased or obtained in a marriage is marital property. Separate property is only that which is received by a party as a gift or an inheritance, or is property which was owned prior to the marriage. Even with separate property, if it is worth more at the time of the divorce, the increase in value is marital property. That means that marital property is anything acquired by either person during the marriage, including the appreciation on separate property during the marriage.

Marital property is divided equally between the parties but separate property is allocated to the owner. Appreciation of equity on separate property is equally divided.

In order for property to qualify as separate property, it must have been kept separate from marital property. For example, if money was inherited by one spouse prior to the marriage, but was then placed into a joint bank account from which the parties paid for marital expenses, what had been a separate inheritance will likely be treated as co-mingled marital property.

Colorado is not a “community property” state, which means that assets and debts are not automatically divided 50/50 between spouses. In practice, however, the marital property and debt are often divided close to 50/50.

What about prenuptial agreements?

If you have a prenuptial agreement, you really need an attorney to review it to give you advice on what property and support issues may be covered in the agreement. Most prenuptial agreements are entered into to protect separate property and income earned during the marriage. Some also cover maintenance and child issues. With regards to maintenance, the court retains the jurisdiction to order maintenance – even if it has been waived in a prenuptial agreement – if the original agreement is ‘unconscionable’ at the time of the divorce. Unconscionable generally means substantially unfair. Prenuptial agreements relating to children are generally unenforceable as if there is no agreement. The court will always look at what is in the best interests of the children at the time of the divorce.

When is the divorce final?

The divorce is final either on the day it is granted in court or, if the divorce is granted by affidavit (by mail), on the day the Judge signs the decree. If an appeal is filed, the orders of the court can be reviewed and possibly changed, but the granting of the divorce is final.

Reconciliation?

While sometimes divorce seems like the only solution, often it is not. After the divorce or legal separation process commences, you may decide to try to work things out in your relationship. If you decide to drop the litigation, you will pay only for those services actually performed and costs actually accrued up to that time. The balance of the retainer will be refunded. Sometimes, people want to try to work things out without abandoning the divorce process until they are sure they have figured things out. Some courts will (and others will not) allow you to place your process into “abeyance” while you attempt reconciliation. Abeyance is a state of temporary disuse or suspension.

Our professional services.

Gutterman Griffiths has experienced attorneys and highly competent support staff. Your case will be given our careful and continuing personal attention and will be staffed by people handpicked to give you the expertise you need. We are very conscious of getting the best results, and containing cost and time. Our staff has the best training and tools available so that you receive the best possible service.

We must have all the facts to represent you properly. Anything you say in this office is strictly confidential and will not be disclosed without your permission. We will always make every effort to keep you informed of not only what is going on in your case, but what resources in the community exist for you. In terms of your legal case, you will receive, in a timely manner, copies of all documents prepared or received by us. You will also receive a monthly statement that details the work done by us on your behalf.

One lawyer or firm cannot represent competing interests, although you may choose to have a lawyer from our firm simply mediate your dispute without representing either party.

We expect our clients to be cooperative and truthful. Without this, we cannot be effective. We also expect that all financial commitments to our office be handled in a prompt and businesslike manner. Clients need to notify us of any change of address or telephone number or if anything that may affect their case is learned.

General suggestions.

Your well-meaning friends and associates may offer you advice about your case. Frequently such advice is not accurate and you should proceed with caution in following it. The facts surrounding your marriage, divorce, children, and property are unique and your case differs from every other case.

Divorce proceedings are very emotional and parties sometimes seek revenge. Sometimes one parent will use the children or financial support in an attempt to punish the other parent. Prepare your children properly without poisoning their minds about your spouse. Obtain advice from a mental health professional if necessary. Attempt to cooperate with your spouse where the children are involved. Discuss support and property division with your spouse. Be fair.

Try your best to keep conflict away from the children. Children are harmed by being placed in the middle of a battle between their parents. You may be divorcing your spouse, but you will both always be parents to your children. They need both of you.

Counseling or coaching is a really good idea. Not only are counselors trained to give you good advice, but they don’t share what you’ve told them and when you’re done with counseling you won’t worry what they may say to your friends. Sometimes, there are many things that once they are over with, you will be most comfortable if they stay in your rear view mirror. This will sound implausible, but often you will forgive your “ex” decades before your friends and family members will. All of this can be a good incentive to work through the hardest parts of your divorce with a paid therapist who will not confuse your issues with their issues and who will not be around at future family events.

Alternative Dispute Resolution

What is Alternative Dispute Resolution (ADR)?

ADR is the umbrella term for alternative ways of resolving a dispute outside of the courtroom, such as through mediation, arbitration, med-arb (mediation and arbitration used in tandem), or a collaborative process.

What is mediation?

A mediator is a person hired to assist you and your spouse in reaching agreements. Mediators do not make decisions for you nor should they side with one spouse or the other. A mediator, also does not guarantee that an agreement is fair. The state provides mediators at a lower rate than that charged by most private mediators (but often state mediators are busier and harder to get into quickly). Mediators range from attorneys with little mediation training, to professional mediators with years of training. They can offer structured settlement negotiations (typically held in separate rooms) to facilitated communication, where the parties are in one room and emphasis is placed on ensuring that everyone is hearing what the other side is saying. Your case and its individual disputes will dictate what mediator is the best choice for your particular circumstance. In addition to different mediation styles, there are mediators who specialize in certain types of financial situations or particular child issues. Choose wisely – investment in a good mediator can be a very wise expenditure of money.

What is arbitration?

Arbitrators are private individuals you can hire to decide your case, just as a judge would do if you went to Court. Arbitration can be binding or non-binding.

What is Collaborative Divorce?

Collaborative divorce is a process in which the parties agree – by contract to stay out of court. Each party is represented by an attorney, so they receive legal advice, but the parties also agree to use any professional they need to work out solutions that meets both parties’ needs. Unlike the litigation approach, collaborative spouses work to make sure an agreement is not only fair for them, but also fair for the other spouse and for the children. It is a different and fundamentally non-adversarial approach to resolving the issues at hand. It takes a lot of the fear out of divorce and it typically ensures better outcomes for all involved. It is frequently – but not always – a less expensive process. You should discuss with your attorney whether or not this process is a good one for your family.

Collaboration requires both parties to act in good faith and if one party isn’t capable of putting the other person’s “needs” on their radar screen, or is unable to make compromised decisions, collaboration won’t work for you.

Children

What is child support?

Both parents owe a duty to support their children, but actual awards of child support from one parent to the other are determined through the use of a statutory formula, which balances incomes and overnights and who is paying allowable expenses such as health insurance premiums. Because child support depends on things like what someone’s income is or the number of overnights, sometimes parents will not be able to agree on, for example, what should count as income and what should not. Generally, courts do not deviate from the ‘guideline’ amount of child support unless there are unusual circumstances.

Once there is a child support order, it remains in effect until the court changes it or all the children emancipate. Courts will consider making changes to a child support order if there is a continuing and substantial change in financial circumstances of a party which results in a change of 10% or more in the presumed amount of child support.

The court requires support of a normal and healthy child until the age of 19 or until a child emancipates which can happen if they marry or join the military. It may be possible to continue support beyond this age for a child with a mental or physical disability.

Upon request of either party, the court will order the child support payments be made through the Family Support Registry. If the spouse fails to pay the required amounts of support, an income garnishment can be issued for all arrearages and all future payments or a Citation for Contempt of Court can be issued upon application.

What about parental rights and responsibilities?

“Custody” is no longer awarded in Colorado and is referred to as “parental responsibilities” now. Custody used to be divided into physical custody and legal custody. In Colorado we refer instead to “decision making” for legal custody and “parenting time” for physical custody.

Generally, decision making is awarded to one or both of the parents, with the statute favoring joint awards. In the event the parents cannot come to an agreement on this, the court will decide which parent will make certain decisions for the children.

Joint decision making is generally not awarded when parties are simply unable to make decisions jointly, such as in cases of serious domestic violence.

The “best interests of the children” is the legal standard by which parental responsibilities are initially awarded. Many factors are taken into consideration when determining an initial award, such as the history of involvement by each parent, the mental and physical health of the parties, and the ability of the custodial parent to encourage the relationship between the children and the non-custodial parent.

Changing parenting time awards is much harder than entering into them the first time, as different standards apply. Many, many parents enter into optimistic parenting plans that do not work, and find that they are stuck with a plan that is very difficult to change later. If you have any questions about this, you are well advised to speak with an attorney who understands custody issues.

What is the parenting class I keep hearing about?

All courts now require that both parents (and sometimes the children also) attend a four-hour class on divorce and its impact on parenting. These classes are mandatory even if the parents agree on parenting issues and even if the children are almost emancipated. The classes can be very useful in driving home how damaging ongoing conflict is on children and can provide information about what behavior to expect from your children and how best to help them through the divorce process.

What is parenting time? What is visitation?

In Colorado, the courts allocate “parenting time” and this is the scheduled time each parent has with their children. This is not based on how parental responsibilities have been divided, but rather on the needs and ages of the children.

Parenting time is also not tied to payment of child support. So, parents who refuse to pay child support still are legally entitled to see their children. The courts enforce parenting time with the same – or more – vigor as they enforce payments of child support.

Dating and remarriage.

The decision to date while pursuing a divorce is yours alone, but be aware that introducing a new significant other is very confusing and potentially damaging to your children. More problematic, if parenting time or decision making is at issue, you may face harsh criticism from the judge or a child evaluator as a result of the decision to start dating. Specifically, if there are child-related issues in your case, your personal life could be taken into consideration by the court.

On a very practical level, virtually no husband or wife takes kindly to being ‘instantly’ replaced, and as they say, discretion is the better part of valor. Why make your divorce harder than it will be anyway? If you don’t choose to wait, it is strongly recommended that you exercise discretion and tact.

What kinds of parenting plans can I expect? Can you do equal parenting time with an infant?

Every family is different. While courts tend to favor equal parenting plans, because that is inarguably “fair”, equal parenting time doesn’t work for everyone. It can be impractical if one parent’s employment makes that difficult, and most mental health practitioners do not recommend long periods of time away from the primary parent for very young children. Having said that, every case is different, and the negative impact of being away from the primary parent is no longer measurable at four years of age. Be warned that if you want to use research as a way of minimizing the other parent, because you have been the primary parent, courts are very aware that uncooperative parents can ruin the other parent’s relationship with a child, which can have long lasting negative effects on the child. If you are seen as a “gatekeeper” then you can pretty much guarantee a court is going to be very hesitant to order anything but equal parenting time.

There is a lot of incentive to find ways to parent that bring out the best in both parents and give your children the best possible relationship with you both.

What if I’m breastfeeding?

Judges can see breastfeeding as a ploy to exclude the father, so be prepared for that, and be prepared to express your milk so that father can also share in feeding the baby. When parents fight, the benefits of a stay at home parent and the nurturing that breastfeeding often represents, can be casualties of the war. Consider carefully how you will approach such issues.

When will I have to go back to work?

The law does not allow the court to force anyone to work, but it is often very difficult for one income to support two households. At a child’s age of 30 months, the court must attribute income to a parent who was previously staying home full time to care for the child/children.

What is domestic violence?

Many more people are victims of domestic violence (DV) than previously thought, but our understanding of DV is also changing. DV is defined as a” pattern of behavior which involves violence or other abuse by one person against another in a domestic setting, such as in marriage or cohabitation” and can occur in a number of ways including physical, verbal, emotional, economic, religious, and sexual abuse.

DV can be perpetrated primarily by one partner on the other or can be a pattern of mutual bad behavior; it can be frequent or infrequent, severe or not severe. DV is problematic because it really is damaging to everyone in the family, and also because we really don’t ‘see’ it in all its forms. The wife who is controlled through control of finances, the husband who is frequently punched, the partner who initiates a fight because they want to get it “over with” – are all different facets of a complex problem.

Courts generally dislike allegations of DV and view them with extreme skepticism, so your attorney may counsel you to work on DV issues in therapy rather than making DV a part of the court case. In extreme cases, DV can be a reason to severely curtail parenting time, but victims are counseled that often perpetrators do very well in court because they present a commanding, self-confident presence, often in stark contrast to their victims. Because DV can be so damaging to the victim, there is at least one well known appellate case in Colorado where the courts affirmed that the abuser was awarded majority parenting time.

Having said that, divorce can be a game changing event for someone who has been controlled and berated for a long time. With representation from an attorney who understands DV and with competent counseling, most DV victims go on to rebuild their lives and to successfully co-parent with their ex-spouses. In such cases, it is critical to come up with parenting plans that do not allow a perpetrator to exercise control over or put financial pressure on the other parent.

What if I think my ex-spouse has been abusing my child?

This is one of the hardest issues that arise in a divorce, and there are no easy answers. Frequently, if you suspect abuse, the child you are worried about is too young to tell you what is really going on. Abusive parents don’t have horns by which you can point them out to the court – and often the more a parent is convinced the other parent is hurting a child, the less the court will believe them. These situations are the archetype of lose-lose. Every judge knows of at least one case where a crazy parent went on a decades-long crusade to prove the parent was a monster and unfortunately, that is what the judge will have in the back of his or her mind when you bring up your suspicions.

It is impossible to know what is going on behind closed doors, and the best advice you can get is often to put the child into therapy and hope a neutral third party will either calm your fears or will see what you see.

The best you can do for your child is be warm, loving and supportive and keep in mind that the most predictable result of making an allegation of abuse – without physical proof – is that your parenting time will be lessened by the court. Several research studies have found that result.

Attorneys

Why is it important to have the right attorney?

No one tells you how important your attorney is going to end up being, but if your attorney misses a deadline, or picks a fight you didn’t want, you are the one who ends up with the problem. Alternatively, if your attorney settles too easily, you will feel like you’ve not been represented well.

Ideally, you want an attorney who understands your values and situation, and whose instincts are similar to yours: they avoid the fights that don’t matter to you, and they stick up for you on the issues that do. Budget is also a consideration, because some attorneys do too much and others far too little. Your attorney should be frank with you regarding their strategy, you should understand it at all times, and you should be consulted whenever there is a question of what should happen next that has not been decided.

What if I picked the wrong attorney, it’s too late to change, right?

It is never too late to get a second opinion and, unless you are weeks away from your final trial, it is usually not too late to change attorneys. If you are uncomfortable with your attorney, it is a good idea to consult with someone else. More often than not, you discover that your attorney actually is representing you well but if you discover otherwise, it is rarely too late to change. Even if there is not time to change attorneys, you are still in charge of your case and can direct your attorney how to proceed differently. It is against the rules of Professional Conduct for an attorney to fail to follow a client’s directives.

Competent attorneys are not surprised when clients want to better understand positions, and we do not take offense when clients disagree with us. If the disagreement is a fundamental one, a competent attorney will help you find an attorney that better suits your needs. It is always a very bad sign when an attorney starts taking a client’s input as a personal attack. We are there for you; not the other way around.

We strongly advise you not hire the first attorney you talk to. Get more than one consult so you can be sure to hire the person that is the best fit for you.

Who should I talk to during my divorce?

People love to talk about what is going on when you are going through a divorce. Some of this interest in your personal circumstance comes from true compassion, but some of it may fall into the category of morbid curiosity, and most of it has elements of both. It may be a very emotional time for you, so you may want to talk about your feelings of fear, vulnerability and hurt. Other people take the exact opposite approach, burying everything inside and talking to no one.

It can be very helpful to talk to someone along the way, to get guidance and to get consolation. Divorce is a time of loss for many people – you lose your former identity as a spouse, you lose financially, and you lose time with your children. In the midst of profound loss, people can feel very vulnerable which can really heighten their feelings of betrayal and desire for the other person to feel loss as well. This can lead to poor decision making. Therapy can help you process your feelings and keep in check your impulses of wanting to say and do things you otherwise would not say or do. There is a saying in divorce: “lose your head, lose your shirt.”

On the other hand, if you are a person who bottles things up inside, doing so may cause depression as it can intensify the loss. Intense feelings of privacy can work to your detriment in these cases.

In both cases, getting into therapy or coaching can really help. Not only is a professional therapist or coach trained and experienced in what you are going through, but they will not pass on your thoughts to friends and family. Plus, when you are done with therapy, they will not be someone you bump into in social or family situations going forward. What is even more helpful, is that a good therapist can help your attorney by identifying your triggers and your deep needs.

There is a lot to recommend this approach, even if you are someone who would never have considered therapy or coaching outside of your divorce. Most good attorneys have several therapists that they know have the experience and wisdom to help their clients; consider discussing this issue with your attorney.