|
In Colorado the Court
grants divorce decrees without regard to “fault”.
Pursuant to CRS 19-4-106, a divorce can be obtained
upon the court finding that the marriage is “irretrievably
broken”. If a spouse disputes that the marriage
is irretrievably broken, the court may continue the
case for 30-60 days and may suggest counseling CRS 14-10-110(2)(h).
The procedure and criteria for obtaining
a legal separation is nearly identical to that of a
divorce: Parenting plans and support orders are put
in place where applicable; assets and debts acquired
during marriage are divided. Assets and debts acquired
after the legal separation become the separate property
of the acquiring spouse. However, the spouses remain
married. The court can convert a legal separation decree
into a divorce decree upon the motion of either party,
however, the parties must wait 6 months from the date
of the decree of legal separation is entered before
a divorce decree can be entered. CRS 14-10-113(2) (c).
In Colorado, a common law marriage
is established by the mutual agreement of the parties
to be Husband and Wife, followed by a mutual and open
assumption of a marital relationship. NO PARTICULAR
TIME PERIOD IS REQUIRED. Often times, when a common
law marital relationship sours, one party attempts to
deny the existence of the common law marriage. In determining
whether or not a common law marriage exists, the court
considers the behavior of the parties. Did the parties
live together? Did their friends, neighbors or coworkers
think that they were married? Did they have joint bank
or credit accounts? Did the Wife and children use the
Husband’s last name? Did they file tax returns
as married? Did they claim married for insurance purposes?
Answering yes to one or two of theses questions can
be enough to establish the existence of a marriage.
“Any form of evidence that openly manifests that
their relationship is that of Husband and Wife will
provide requisite proof from which the existence of
their mutual understanding can be inferred for the purposes
of establishing common-law marriage.” People
v. Lucero, 747 P.2d 660 (Colo 1987)..
Restraining Orders pursuant to CRS
13-14-101 et seq. are issued by the court to prevent
assaults and threatened bodily harm, domestic abuse
(including abuse of current or former spouses and significant
others, as well as children of a party), emotional abuse
of the elderly and stalking.
Temporary and permanent restraining
orders under this statute may order relief including
the following: Restraining a party from threatening,
molesting or injuring any party or the minor children
of either party; Restrain a party from contacting the
other party or the minor children of either party, exclude
a party from the home that the parties share, and award
temporary care of the minor children to either party
for up to 120 days.
In Colorado, “custody”
has been replaced with “parenting time”.
The standard the court uses in determining parenting
time and visitation schedules is the “best interest
of the child” standard. CRS 14-14-124. And rather
than giving joint custody or sole custody, the court
“allocates decision making responsibilities”
to one or both parents based on “the best interest
of the child”. The court is not to presume that
one parent is better able to serve the best interest
of the child because of that parent’s gender.
A person (other than a natural parent)
who has had physical care of the minor child for six
or more months may petition the court for “custody”
if the petition is filed within six months of the termination
of the physical care.
The court may modify an order granting
parenting time. You should see an attorney to discuss
modification as the standards the court must use in
determining such issues as whether to grant or deny
parenting time, whether to change where and with whom
the child resides a majority of the time, and whether
to allow a parent to relocate with a minor child are
varied and the criteria potentially complex and fact
dependent.
In Colorado, child support is calculated
based on guidelines established in CRS 14-10-115(3)(a).
Factors taken into account include the gross income
of the parents, the number of children born before the
children of the marriage and the number of children
born of the marriage, daycare expenses, insurance expenses
and certain extraordinary expenses if any. Said guidelines
are used as a rebuttable presumption in establishing
child support and are based on the number of overnights
that a child spends with each parent. If a child spends
0-92 overnights with a parent, the guideline support
calculation is based on a worksheet A. If a child spends
93 overnights or more with each parent, and both parents
contribute to the child’s expenses in addition
to paying child support, the guideline support calculation
is based on a worksheet B. On a worksheet B, the guideline
calculations include the presumption that the parents
share physical care for the child, and as a result duplicate
household expenses. The ultimate result is that child
support payments are lowered.
Child support can be modified by a motion
filed with court if the modification would result in
a 10 percent change in the support order. Child support
may be modified retroactively to the date the motion
is filed unless the court determines that doing so would
present an undue hardship. CRS 14-10-122.
In Colorado, alimony is referred
to as maintenance. Maintenance may be awarded on a temporary
and/or a permanent basis. Factors to be considered in
a permanent maintenance award include the financial
resources of the spouse requesting maintenance, the
time necessary for the requesting spouse to obtain sufficient
training or education to find appropriate employment,
the standard of living during the marriage, the length
of the marriage, the requesting spouse’s prior
education, training and work experience, their age and
health, and the financial resources of the other party.
As for temporary maintenance, if the spouses’
combined household income is $75,000.00 or less the
court uses a formula to determine presumed maintenance.
If household income is greater than $75,000.00 then
the criteria for permanent maintenance is used for temporary
maintenance as well.
Property acquired during marriage
and before the entry of a divorce decree or legal separation
decree is presumed to be marital property regardless
of whether or not the property is in the name of only
one of the spouses unless the property is excluded pursuant
to CRS 14-10- 113(2) and (3).
Separate property includes property acquired
before marriage and property acquired by gift or inheritance.
Separate property that is commingled with marital assets
or placed in an asset that is held in joint tenancy
may be construed as a gift to the marriage and thereby
considered to have become marital property. The spouse
who is claiming that the property is still separate
property has the burden of proving that a marital gift
was not intended.
Nonetheless separate property that
remains separate property is still subject to distribution
to the other spouse in that the growth in value of the
separate property asset during the marriage period is
in fact marital property subject to equitable division.
CRS 14-10-113(4).
If a man admits to being the father
of a child or is tested positive for paternity and the
court orders that the man is in fact the father, the
court order will not likely be rescinded after the time
to appeal has expired. For example, in the case where
a Father, believing he is the Dad of a 1 year old, admits
this to the court and the court issues a court order
of paternity, if Father discovers 5 years later that
he biologically is not the father of the child, the
Court, utilizing the best interest standard will likely
refuse to modify the paternity order.
If a man admits to paternity or is
tested positive for paternity and the court orders that
the man is in fact the father, the court order will
not likely be rescinded after the time to appeal has
expired. For example, in the case were a Father, believing
he is the Dad of a 1 year old, admits this to the court
issues a court order of paternity, if Father discover
5 years later that he biologically is not the father
of the child, the Court, utilizing the best interest
standard will likely refuse to modify the paternity
order.
Grandparents under certain specific criteria can have
court ordered visitation. Discuss your situation with
an attorney and see if grandparent visitation is an
option for you.
|
