The divorce process is often emotionally taxing and can be one of the most difficult decisions one will make. Despite the complexities and unique issues in any given divorce case, the process of initiating a divorce action with the court is relatively straightforward, although each case may present specific issues. While the process of starting a divorce is relatively straightforward compared to other legal actions, it can be daunting to understand the process and court requirements. (For a full list of the court forms provided by the State of Colorado, click here).
Generally speaking, there are three main categories of items to consider with respect when filing for divorce in Colorado:
- The filing of the petition for dissolution of marriage and summons
- Service of the petition for dissolution of marriage
- Beginning the court process
Read on to learn more:
Filing the Petition & Summons
A Petition for Dissolution of Marriage (or Legal Separation) is the document that starts a divorce case with the court. It is how someone in Colorado files for divorce. The petition sets forth basic information as to the parties, their addresses, other contact information, and information regarding any minor children of the marriage. The petition will state the standard for the court to dissolve the marriage, which is that the marriage is “irretrievably broken.”
The Petition for Dissolution of Marriage
The petition also provides information as to certain jurisdictional requirements, such as the time of residence in Colorado for at least one of the parties (at least 91 days) and the time of residence for any minor children (at least 182 days). If any of these requirements are not met, there may be jurisdictional issues as to whether a case can be filed in Colorado or if another state would have jurisdiction over the parties or the children. The petition provides information as to genetic testing for children, prior litigation regarding the children, domestic violence/protection orders, Human Services involvement, and existing cases with child support enforcement. This is to ensure that the domestic court in which the divorce is filed is made aware of any other proceedings which may impact the divorce.
Finally, the petition contains a provision as to the nature of the orders to be entered by the court. These typically include a request for orders regarding the status of the marriage, allocation of parenting time and decision-making in the best interests of the children, maintenance (alimony or spousal support), child support, the division of property and debts, payment of attorney fees, and restoration of a previous name of a party. It is generally best to make sure that any of these requests which may be relevant to a case are included in the petition as, under certain circumstances, a party may be precluded from raising issues related to these categories if they are not set forth in the petition.
In addition to the petition, it may also be necessary to file a Summons for Dissolution of Marriage and Temporary Injunction. Whether or not a summons will be required will depend on whether both parties sign the petition (then referred to as a co-petition) or if the petition will be filed by one party only. With a co-petition, the summons is not necessary; however, if only one party is filing the petition, then a summons will also need to be filed and served on the other party as discussed below.
The summons provides notice to the other party of the filing of the divorce action and sets forth the requirements for filing a response to the petition. Both the summons and the petition also provide information regarding the automatic temporary injunction which goes into effect upon either the filing of a co-petition, service of the petition and summons on the other party, or the waiving of service by the other party. The general purpose of the automatic temporary injunction is to keep the status quo of the marriage while the divorce case is pending. The automatic temporary injunction prevents either party from taking minor children out of the state of Colorado without the consent of the other party or court order. It also prevents either party from transferring, concealing, encumbering, or disposing of marital property without the other parties consent or court order, except for in the usual course of business, or for the necessities of life. Both parties are also restrained from canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums for insurance policies.
Once the petition and summons have been filled out, they must be filed with the court. For parties without attorneys (pro se parties), any documents to be filed with the court must generally be hand delivered to the court Clerk. Attorneys representing clients can file documents with the court through the court’s electronic filing system. Once the case has been filed, the party filing the petition is referred to as the petitioner and the other party is referred to as the respondent or co-petitioner depending on whether a co-petition is filed or if the petition is personally served.
Service of the Petition and Summons
Once the petition and summons have been filed with the court, they must be personally served under C.R.C.P. 4. Typically, this will mean that the petition and summons will be served by either a process server or through the County Sheriff’s Office, although the rule provides for all the allowed methods of personal service. Once the petition and summons have been served, an Affidavit of Service from the individual serving the documents should be filed with the court to demonstrate that service has occurred.
As an alternative to having the documents personally served on the other party, the other party (respondent) can sign a waiver of service. A waiver of service can be used to avoid having the petition and summons personally served. As the name implies, if the respondent agrees to sign a waiver of service, he or she is telling the court that they are waiving the service requirements and have been provided notice of the divorce case. Signing a waiver of service generally does not relinquish or deprive a party of any substantive rights in the divorce. If the other party agrees to sign a waiver, then the waiver would be filed similarly to the Affidavit of Service.
As mentioned above, if a co-petition, signed by both parties, is filed with the court, then not only is a summons unnecessary, but there is no need to have the documents personally served (or sign a waiver) on either party since the co-petition is sufficient to demonstrate that both parties are aware and have notice of the petition being filed.
Beginning the Court Process
Once the petition or co-petition has been filed, the court will typically issue a case management order which sets forth many of the requirements and procedures related to the divorce action. It is important to read and understand the contents of the case management order as failing to adhere to the court’s requirements could have adverse consequences. Since the case management order will typically be issued promptly after the petition is filed, it can be served on the other party along with the petition and summons. If the petition and summons are served before the case management order is issued, then it will also need to be provided to the other party and notice will need to be given to the court that the other party has been provided the case management order.
Initial Status Conference
In addition to the case management order, the court will also issue instructions regarding an initial status conference. The initial status conference is typically a short appearance in front of either the judge assigned to the case or a Family Court Facilitator. By statute, the initial status conference is to occur within 42 days of the petition being filed and is usually a straightforward appearance to discuss the logistics of the case with the court such as deadlines, need for experts, and setting of future hearings. In some jurisdictions, the court will set the initial status conference date, while in others, the court will require one of the parties (typically the petitioner) to contact the court and obtain dates to set the conference.
Case Management Order
The case management order will provide information regarding the mandatory financial disclosures which are required and governed by C.R.C.P. 16.2, including Form 35.1. Under this rule, the disclosures are required to be completed within 42 days of service of the petition, but most individual courts are now requesting that the disclosures be completed before the initial status conference.
After the initial status conference, each case will proceed to follow its own unique path, whether that leads to settlement or trial, including any specific issues along the way. Despite that initiating a divorce is a reasonably straightforward process, navigating the court system and the specific requirements to reach the end of a divorce can be daunting and complex, regardless of the emotional aspect inherent in most divorce cases.