Overview of Divorce Laws in Colorado
It’s critical to understand the processes and laws related to getting a divorce in Colorado so that you can have the best possible outcome for your situation.
Whether or not you retain an attorney, there are still many basic things you should know about to protect your interests.
Here are some of the most important parts of Colorado divorce laws for you to know:
- Equitable Distribution & Asset Division
- Spousal Maintenance and Child Support
- Child Custody and Visitation
- Divorce Process
- Other Divorce Issues
Equitable Distribution & Asset Division
Marital Property in Colorado
Colorado is governed by equitable distribution.
This means that all marital property is divided fairly among two divorcing spouses. It does not mean that the division will be a 50/50 split, but rather what is considered appropriate based on a number of circumstances.
Only marital property is considered for equitable division. Marital property is generally all assets acquired during the marriage except inheritances or gifts given to one spouse that have not been commingled with marital assets.
When a divorce takes place, assets that are not marital property do not need to be considered among the assets that need to be divided equitably between spouses.
Debts
Debt acquired during a marriage in Colorado is considered marital property. Like assets, debts are also distributed in a fair manner which may or may not mean a 50/50 split.
In some cases, a spouse with more income will be required to take on more debt. If one spouse was a reckless spender, or accumulated most of the debt, then they might be responsible for a majority of paying it off.
Premarital debt that was acquired before marriage is considered to be the responsibility of the spouse who incurred it, unless the debt is commingled during the marriage.
Division of Assets in Colorado
Colorado is an equitable distribution state. This means assets will be divided in a fair and equitable manner, but not necessarily with a 50/50 split.
Judges will start with the premise of making an equal distribution but will then adjust the division based on several possible factors that may result in one spouse receiving more than the other.
Some of these factors will include:
- Each spouse’s economic circumstances
- Contributions to the marriage by each spouse including contributions as a homemaker and caring for children
- The duration of the marriage
- Did one spouse contribute to the education or career advancement of the other spouse
- Did one spouse put their career on hold for the good of the marriage
- The contribution of each spouse in acquiring income and debts
- How desirable is it to keep the family home for the good of continuing to raise children
- Did one spouse dissipate marital assets prior to the filing of a divorce petition, either through substance abuse, gambling or other reckless pursuits
- Any other factors that are pertinent in fairly determining the equitable distribution of assets
Determining which assets are marital property and which assets are separate property must be determined first. This can often times lead to disputes and disagreements
For example, if a spouse receives a lump sum of cash as a gift and deposits it into a joint bank account, this could be considered commingling.
Gifts and Inherited Property
In Colorado, any gifts or inheritance that was given to one spouse and not commingled with marital property or funds is considered separate property.
However, the law says that the increase in the value of separate property during the marriage may be subject to division, as if it were marital property.
The size of an inheritance or gift may also impact how spousal maintenance is determined
Pensions, IRAs, 401Ks and Retirement Plans
Pensions, IRAs, 401Ks and retirement plans are considered marital property in Colorado. However, only the amount of the retirement asset that was earned during the marriage is subject to division.
It may be possible to negotiate keeping a larger part of a retirement fund in exchange for one spouse receiving a larger interest in other community assets, such as a home.
Legally splitting pensions and other retirement funds are a multiple step process. First, a divorce decree must order that these assets be divided. A qualified domestic relations order, more commonly referred to as a QDRO must then be created.
The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
Did you know that you can get a QDRO from the comfort of your own home? If you’re interested in getting a QDRO online, we highly recommend using QDRO Counsel.
Support Maintenance and Child Support
Spousal Maintenance in Colorado
In Colorado, alimony is officially known as spousal maintenance, and is granted by a court where it is deemed appropriate by the court, or situations in which “a spouse needs support and the other spouse has the ability to pay support.”
A spouse must request support and the court will take several factors into consideration on a case-by-case basis. These factors can include:
- Gross income of each of the parties
- Marital property distributed to each of the parties
- Financial resources of each party
- Reasonable financial needs as it was established during the marriage
- The length of the marriage, the age and health of both spouses
When the parties’ marriage has lasted for at least three years and they have a combined gross income of $240,000 or less (or a combined gross income that is at the uppermost limits of child support obligations), then the court calculates the amount using this formula:
Amount = 40 percent of the higher income party’s monthly adjusted gross income, minus 50 percent of the lower income party’s monthly adjusted gross income.
For example, if the higher earning party has an adjusted gross income of $8,000 per month and the lower earning party has an adjusted gross income of $4,000 per month, then the court will take 40 percent of $8,000 (or $3,200) and subtract 50 percent of $4,000 (or $2,000), making the spousal maintenance award $1,200 per month.
Child Support in Colorado
The Colorado Legislature has adopted Colorado Child Support Guidelines that are used when a child’s parents are divorced, separated or unmarried.
The amount of child support a parent pays can also be affected by the amount of overnight stays with the child. The parents also share the costs for childcare, medical insurance and uninsured medical expenses.
The child support amount calculated using the guidelines is accepted as appropriate unless either parent shows a reason for a deviation. If the noncustodial parent’s monthly gross income is between $900 and $1,900 he or she may be eligible for a low-income adjustment to the amount of child support paid.
Parents who fall behind on child support payments or completely disregard their obligation based on the divorce decree can face legal repercussions if they do so. The state may step in to assist in collecting payments and could resort to income withholding, intercepting income tax refunds, property liens or seizures, revoking professional licenses or driver’s licenses, and in serious cases, filing contempt of court charges which could result in jail time.
Child Custody and Visitation
Child Custody in Colorado
Child custody may be awarded to either parent in Colorado and is based on the best interests of the child after considering all relevant factors. Courts are gender neutral so all decisions are based without bias toward the mother or the father.
Courts prefer a joint custody arrangement because of the belief that both parents should be actively and routinely involved in their children’s lives
Some of the factors a court will consider in determining child custody include the age and health of a children, emotional ties to each parent, personal preferences of the child, childcare and after school care arrangements, religious, social and school activities the child may be involved in, and medical care, as well as other factors. Courts definitely want to know if there are any negative factors in a child’s life as well, such as if a parent has a substance abuse problem or if domestic violence has taken place.
When deciding custody, courts may grant one parent ultimate decision-making responsibility for major decisions regarding welfare such as education, medical and dental care, religious affiliations and other major life defining issues. In other instances, both parents may share those responsibilities, depending on what is determined to be the best interests of the child.
Substance Abuse
Because Colorado is a no-fault state, substance abuse does not need to be cited as a reason for ending a marriage. However, when substance abuse is present in a marriage, it can have an impact on the final outcome in a couple of ways.
Because the courts put a child’s best interests above all else when deciding custody, if substance abuse can be proven, then it may have a big impact on custody, visitation issues and a division of assets.
Divorce Process
Bifurcation of Marital Status
Bifurcation means that both parties in a divorce can legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
Bifurcation can be granted in some instances in Colorado, but courts are generally not in favor of doing so because it adds to the judicial workload when problems with a divorce remain.
Disclosing Assets
By law, spouses are required to disclose assets as part of the divorce process.
Each spouse must disclose to the other the amount and type of assets they have so there can be an equitable division of those assets. This will also factor into child support and alimony as part of the final divorce decree.
Disclosures must include all bank account information, titles and deeds, retirement account statements, tax returns, pay stubs or income information and debt information.
If a spouse lies about their assets, then they may be liable for both criminal and civil penalties.
When a person refuses to exchange this information with their spouse, the court may order the spouse to do so, and also make them pay any associated attorney’s fees.
Spouse’s Default in Colorado
If one spouse can show that the other spouse has been uncooperative or otherwise refuses to participate in the divorce process, the court may choose to enter a default finding based only on the information provided by the cooperating spouse.
Other Divorce Issues
Domestic Violence
If domestic violence is present in your marriage, you must take immediate steps to protect you and any other people who are at risk. Domestic violence can come about as a result of any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other.
If you are in immediate danger, call the police. In all cases, where the threat is real, you must take your children or other family members and leave the residence where the abuser is living.
While it is not a grounds for divorce in Colorado, domestic violence will impact child custody and visitation rights. A judge will not order shared custody where the threat of violence may be present. Limited and supervised visitation rights may be put into place.
Domestic violence may also impact spousal and child support, if it can be shown that a spouse’s physical or emotional health, income, earning power or employability where adversely affected by domestic violence.
Health Insurance
If you are covered under a spouse’s healthcare plan in Colorado, when you get a divorce your healthcare coverage will end. You will need to get coverage from another source.
You may be able to negotiate a spouse paying for health insurance as part of spousal support. You can also apply for COBRA benefits which is a law that protects people from losing health coverage during major life transitions. It allows you to continue with your spouse’s current coverage for up to three years as long as you pay the premiums. People generally don’t do this since a company will no longer subsidize any of the costs.
If children are involved, then any child support will need to include health insurance coverage for children, either by one or both of the parents’ contributions. This will need to be worked out as part of the settlement agreement.
Infidelity and Adultery
Infidelity and adultery, more commonly known as “cheating” takes place when one married person has voluntary sexual intercourse with someone who is other than their spouse.
Because Colorado is a “no-fault” state, the person filing for divorce does not need to prove any specific reason for the divorce. They only need to cite that the marriage is “irretrievable broken” with no hope of getting back together.
However, if a spouse has committed adultery, then the other spouse may use that as leverage in making child custody decisions because it could be argued that adultery could have an adverse impact on any children in the marriage.
Military Divorces in Colorado
Certain state and federal laws come into play if a member of the military is involved in a divorce in Colorado. In Colorado there is a requirement that at least one of the parties have been domiciled in the state for at least 91 days before filing for a dissolution of marriage.
In deciding whether someone is considered domiciled in Colorado, the court will look at several factors:
- Where that person was stationed previously.
- Whether the person purchased a home in Colorado or another state.
- Where the person has claimed residence before.
- Where the person grew up.
- The state the party claims as his or her Home of Record.
- The party’s state of legal residence on Leave and Earnings Statements.
- Whether the party intends to make Colorado his or her permanent home.
Once forms have been filed to begin the divorce, copies must be served on the spouse to give him or her a chance to respond. When one spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act that allow them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments.
The Servicemembers Civil Relief Act eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty. It also prevents active duty military members from being held in default for failing to respond to a divorce action.
Federal law dictates that child and spousal support awards may not exceed 60% of a servicemembers pay and allowances if they are single. That amount drops to 50% if the servicemember remarries and has a new family they must support.
Normal Colorado property division laws are used in a military divorce, but the federal government also has put in place the Uniformed Services Former Spouses’ Protection Act that dictates how military retirement benefits are calculated in a divorce.
Rules changed in 2017 regarding retirement pay. It is now calculated from the “Freeze Time Formula” instead of the previous “Time Rule Formula”.
Regarding children custody and visitation, if one of the parties becomes deployed, The Uniform Deployed Parents Custody and Visitation Act (UDPCVA) is implemented.
Temporary plans are put in place during military absences that may include deployment, TDY, or a remote tour of duty, and such absences require military parents to prepare a temporary plan for custody and visitation arrangements during their absence. After the absence is over, the temporary plan ends and the parties return to the parenting plan that was in place before the military absence.
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