Frequently Asked Questions – Divorce in Colorado

By Mike Miller

All of us at Miller & Steiert hope you never have to deal with the “divorce dilemma”. The reality, however, is that in today’s society, couples are often forced to face these issues. Our approach at Miller & Steiert is to focus on our clients and to pay serious attention to each case. We work to provide our clients with the guidance, emotional support, and legal and financial direction that they need to successfully negotiate a difficult path.

Mike Miller has over 20 years’ experience in this sector of law. He brings expertise and personal concern to these cases. He subscribes to the Miller & Steiert primary aim—to achieve a satisfactory solution to each client’s problem. Mike also works to minimize the considerable impact this difficult process can have on both the adults and children involved.

We have compiled a list of frequently asked questions regarding the divorce process in an effort to assist couples with this otherwise difficult situation:

How are temporary funds handled?
How do I determine what living expenses are paid, who’s to drive what car, and how personal property is divided on a temporary basis?
Answer: In the Colorado courts, couples are entitled to a hearing on Temporary Orders. Most jurisdictions have these hearings by a Magistrate rather than a District Court Judge. The hearings are usually available within 30 to 45 days of the time the case is filed.

At the Temporary Orders hearing the Magistrate will hear a brief presentation of evidence from both sides, and a review of brief financial affidavits filed by each of the parties. At that time, unless the couples can otherwise agree, the Magistrate will enter orders regarding who is to remain in the family home, how much temporary child support is to be paid, whether or not there will be temporary maintenance, and the temporary division of personal property.

The Magistrate will further decide the issue regarding temporary parenting time and advise the separating couple how many overnights each of the parents can spend with the minor children. In many cases, the issues of Temporary Orders are not tried before a Magistrate because the parties are able to meet with their attorneys and arrive at a mutually satisfactory arrangement. If, however, the parties are unable to decide, a Temporary Orders hearing is available.

When is a restraining order needed?
Answer: Restraining Orders are not issued in very many cases anymore. Many years ago Restraining Orders were issued by the Domestic Relations Court to enter orders regarding which party would vacate the family home.

Today the issue of who remains in the family home is frequently resolved at a Temporary Orders hearing rather than through a Restraining Order hearing. The Restraining Orders are usually reserved for instances of domestic abuse or violence in the home or when one of the parties believes personal safety could be threatened.

What is the 90–day waiting period?
Answer: Under Colorado law, from the date that the Dissolution of Marriage is filed the Court cannot grant a Decree of Dissolution of Marriage for a period of 90 days. The law does not require that the parties separate during this period. The intent of the legislature is to establish a “cooling off” period so parties can properly evaluate their decision regarding whether or not the divorce should be finalized.

What is mediation? How often is it used and what are the advantages?
Answer: Mediation is a tool frequently used in the divorce process. Obviously, the Courts, as well as family law practitioners, are aware of the fact that tremendous emotional strain is involved in divorce litigation. Any agreement that can be reached by mutual accommodation to alleviate continuing conflict and ongoing harm to both the parties and/or to the minor children is a definite plus.

Accordingly, many District Courts require mediation before they will set a final hearing for Permanent Orders. At a mediation session the parties sit together—with or without their attorneys—and examine the issues remaining in the domestic relations’ proceedings. They use a third party neutral mediator to assist them in resolving these issues on a mutually agreeable basis. Many cases are successfully mediated. This not only saves the parties substantial costs and fees but also helps the couple find a mutually acceptable solution.

The amicable atmosphere thus created often lays the framework for more positive post–decree communication. Most mediators have substantial experience and/or training specifically in the area of mediation. At Miller & Steiert, we have a division known as Littleton Alternative Dispute Resolution where we conduct mediations for couples in domestic relations cases. Michael P. Miller has completed formal training in this area with Collaborative Decision Resources, Incorporated, an internationally known mediation training program that has conducted countless successful mediations.

How will child support be calculated?
Answer: Under Colorado law, child support is calculated based upon a formula, which has been set forth by the State Legislature. The formula covers the total gross income of each of the parties, the total costs of health insurance, extraordinary medical expense, day care, and other regularly incurred expenses for the minor children.

In consideration of the overnights spent with each of the parents the formula is applied and the exact amount of child support paid is determined. This is not discretionary and the Court can only deviate from the statutory formula for child support in extremely rare situations.

Is child support a tax–deductible item?
Answer: This is a question of federal taxation outside of Colorado State law. Under federal tax law, child support is never a tax–deductible item. However, maintenance payments in support of a spouse but not in support of children, if properly prescribed in the Court Order or the Separation Agreement, are deductible by the party paying maintenance.

How will our property be divided if we get divorced?
Answer: How marital property is divided in Colorado is a complex question, which varies depending upon the facts of each case. The law clearly provides that the marital assets shall be equitably divided between the parties. Although the assets need to be equitably divided, equitably does not always mean equally. In most situations the Courts endeavor to divide the property equally unless there are extenuating circumstances that would require one of the spouses to receive more of the assets than the other.

How will the court determine visitation rights?
Answer: In the State of Colorado the issue previously known as visitation rights is now termed “parenting time”. The Courts will frequently divide time between the parents in a manner that the Court determines is in the best interest of the minor children.

Consideration will be given to many issues including: who has historically been the primary caregiver, if either of the parties is remaining in the marital residence, and the proximity of the current residences of the parents. Parenting time can vary and can even change in given families as the conditions change. Courts continue to keep jurisdiction over the issue of parenting time until all the children are emancipated under Colorado law.

When will our children become emancipated?
Answer: Under Colorado law, a child is emancipated at the age of 19; however, there are certain circumstances under which emancipation could happen earlier or later. A child is emancipated if prior to the age of 19 he moves away from both parents’ homes and no longer is dependent on the parents for support; or if the child gets married, joins the military or has a full time job and is supporting himself.

Children will not be emancipated at the age of 19 if they are still in high school, continue to live with one of the parents, and obtain the majority of their support from their parent. Obviously, children will not become emancipated on achieving the age of 19 if they suffer from physical or emotional disabilities which make it impossible for them to support themselves.

What happens to the insurance that is in effect at the time of the filing of the dissolution of marriage?
Answer: Colorado requires that all insurance policies—whether for life insurance, health insurance or automobile insurance—that are in effect at the time of the filing of the Dissolution of Marriage, must be kept in full force and effect until mutual written agreement of the parties or order of the Court. No person can attempt to change, alter, or terminate any insurance provisions once the action is filed, or if the person has been served with a Petition for Dissolution of Marriage.

What are parenting classes?
Answer: Most of the District Courts in Colorado now require each parent in a Dissolution of Marriage proceeding to attend a parenting class before the Court will enter the Decree of Dissolution of Marriage. Parenting classes usually take approximately 8 hours and most of them are offered on a Saturday. Some are available on several midweek evenings. These classes are very informative and many people who have attended believe that they helped them learn to deal with the issues regarding communication and parental responsibilities.

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