FREQUENTLY ASKED QUESTIONS
I. Divorce And Parental Responsibility Questions:
1. What is the difference between a Dissolution of Marriage and a Legal Separation?
A Divorce is the legal process to terminate a marriage. The court will enter orders dividing marital property and debts, allocating parental responsibilities, determining child support, maintenance and attorney fees.
A legal separation will also result in court orders dividing marital property and debts, allocating parental responsibilities, determining child support, maintenance and attorney fees. However, the court does not terminate the marital relationship. The parties are not free to re-marry.
2. What is a common law marriage?
A common law marriage is a relationship between a man and a woman that meets all the necessary requisites of a marriage that was not solemnized, performed or witnessed by an official to perform marriages. The necessary elements of a common law marriage are:
- The intent of both parties freely given to become married;
- A public declaration by the parties that they are husband and wife;
- Continuous cohabitation/Consummation of the marriage;
- Both parties must be capable of entering into a marriage relationship.
Once a common law marriage has been formed, it can not be terminated except by a dissolution of marriage proceeding.
3. When will the court enter a Decree of Dissolution of Marriage or a Decree of Legal Separation?
- One of the parties has been domiciled in this state for 90 days;
- The court finds that the marriage is irretrievably broken; and
- Ninety days or more have passed since the court acquired jurisdiction over the respondent.
4. What is the difference between marital property and separate property?
Marital property is anything acquired during the marriage, regardless of how the property is titled. It also includes any increases in value of either party’s separate property.
Separate property is your pre-marital property and anything received during the marriage as an inheritance and/or gift.
5. How does the court divide marital property and debts?
Pursuant to C.R.S. section 14-10-113 the court will divide marital property and debts fairly and equitably. This does not necessarily mean a 50/50 division.
6. What does it mean to allocate parental responsibilities?
This is when the court enters orders regarding parenting time and decision making responsibilities.
Parenting Time: Where does the child live and when does the child spend time with each parent? This includes a regular weekly parenting time schedule as well as a holiday and extended vacation parenting time schedule.
Decision Making Responsibilities: The parties will either jointly make decisions regarding the child’s medical, educational and religious matters or one parent will have sole authority to make said decisions.
7. How does the court allocate parental responsibilities?
Pursuant to C.R.S. section 14-10-124 the court will generally determine a parenting time schedule and allocate decision making responsibilities according to the best interests of the child. A lengthy list of factors for the court to consider when determining what serves the children’s interests are enumerated in the statute.
8. How is child support calculated?
Child support is calculated by a worksheet thereby divesting all parties, including the court, of any discretion pursuant to C.R.S. section 14-10-115. Child support is calculated by considering both parties gross monthly income, the number of overnights that the child spends with each parent with consideration of allowances for child care costs, health insurance premiums and extraordinary expenses.
Child support is a right of the child, not the parent. Therefore, you cannot negotiate away a duty to pay or a right to receive child support.
Child support is a separate issue from parenting time. In other words, just because a parent does not see his/her child does not mean that he/she is not responsible for paying child support. Similarly, a parent can not deny parenting time simply because the other parent is not currently in their child support obligation.
Child support is always modifiable by the court. Either party must show that there is a significant and continuing change in circumstances which would result in at least a 10% change in the child support amount in order for the court to modify a previous order.
9. What is maintenance? How does the court decide whether or not my spouse has to pay me maintenance?
Maintenance is spousal support or alimony.
At the time of Temporary Orders there is a presumptive formula for determining whether an award of temporary maintenance will be ordered pursuant to C.R.S. section 14-10-114. If the parties combined gross annual income is $75,000.00 or less, there is a rebuttable presumption in favor of temporary maintenance based on the following formula: 40% of the higher income party’s monthly gross income subtracted by 50% of the lower income party’s monthly gross income. If the number is zero or a negative number, a presumption of no temporary maintenance exists. If it is a greater amount, that shall be the amount of presumptive temporary maintenance.
An extensive list of factors will also be considered by the court as designated in C.R.S. section 14-10-114.
10. How will I know if the court will order my spouse to pay my attorney fees?
The court may award attorney fees when there is a disparity in the parties’ incomes and resources, pursuant to C.R.S. section 14-10-119.
2. Estate Planning Questions:
1. How can I leave property to someone at my death?
A will is the legal instrument necessary to dispose of specific real property and personal property.
2. What is a living will?
Living Wills do not become operative until a patient is certified to be in a terminal condition. Clients who wish to limit or withhold consent to medical treatment in advance of terminal conditions may wish to have a living will drafted on their behalf. Living wills do not apply to emergency medical care, or to any form of treatment except artificial life support.
3. What is a medical durable power of attorney?
This document allows you to appoint an agent who can make medical decisions on your behalf. The agent’s authority to make decisions concerning artificial life support or other medical treatments is not limited to “terminal” patients or conditions, as are living wills.
4. How can I make arrangements to provide a guardian for my child in the event of my death?
You can execute an Appointment of Guardian, which becomes effective upon your death and/or incapacity.
The death of the custodial parent does not automatically vest the non-custodial parent with custody or decision making responsibility. Although a presumption may exist that the natural parent has the first and prior right to custody of his or her child, this presumption may be rebutted by evidence establishing that the best interests of the child would be promoted by allocating some or all decision making responsibility to someone other than the surviving parent. Your executed Appointment of Guardian can be evidence of such.
1. What is mediation?
Mediation is a private, confidential process in which a neutral third person, the mediator, assists disputing parties to reach an agreement. The mediator has no power to impose a decision on the parties. A professional mediator is a trained neutral who helps parties communicate, identify their own needs and concerns and to look at possible options for resolving conflicts to reach an agreement.
2. What happens if we reach in agreement in mediation?
The mediator can memorialize the terms of your agreement in a formal document, typically called a “Memorandum of Understanding”. It is signed by both parties in good faith and is often submitted to the court for its approval and order.
3. What do I need to bring to mediation?
- A list of all issues and concerns you wish to discuss
- All supporting documentation pertaining to the issues.
- An open mind and a willingness to commit to the process.