Introduction & Basics
The Process of Divorce in Colorado
The first step is to understand what will happen during the legal process from a 50,000-foot view. Knowing when each part happens will help you understand what is coming next and how to prepare.
The process of divorce can be summarized into the following general categories:
Filing for Divorce
The process starts with the filing of a case. To file for divorce, you or your spouse will file three documents with the court. These three documents are a “petition for divorce”, a “summons”, and a “case information sheet.” Once you file your case with the court, you will serve your spouse with “service of process” or encourage them to sign a “waiver of service.” After service is complete, your divorce has begun and the next stop is the process of financial disclosures. Learn the precise details of filing for divorce here.
Tip: Service v. Waiver
There are several reasons you may choose to have your spouse served over waiving service. If you prefer to have your spouse served, you will inform a process server of your spouse’s location and they will hand them the papers for you. Service has two major advantages. With service, you do not need to interact with your spouse. If notice of a divorce might be an uncomfortable or dangerous situation for you, official service of process is a good idea. Second, service automatically triggers the automatic, temporary injunction discussed later in this guide, which you may need in place to protect yourself.
In contrast, you may want to have your spouse waive service if you want to discuss the decision together or want to encourage a friendly, cooperative relationship going forward.
After filing, the next step is financial disclosures. Before you divide your marital estate, it makes sense to engage in a process where you “discover” or learn about what each of you own.
The process has two major components: (1) the “Sworn Financial Statement” (“SFS”) and (2) the “Rule 16.2 Disclosures.” The SFS is a document that you will fill out and then complete with your attorney. It includes questions about your income, taxes, expenses, assets, debts, and other financial information. The Rule 16.2 Disclosures are outlined in Form 35.1, which includes documents and other supporting information that coordinate with the assets and debts listed on the SFS. These documents include bank statements, pay stubs, tax returns, and other similar information.
Now some of you may say to yourself, “I have none of this information!” This is not uncommon. It is not unusual for one party to have minimal information about the marital finances. Indeed, on occasion, neither spouse has much information about the finances. If neither spouse has the information, the attorneys and experts will handle the process of discovering what you own. Your law firm should be able to guide you through the process every step of the way. For example, Griffiths Law can assist you by identifying your assets and debts, gathering the supporting documents, organizing the documentation, and preparing the information for disclosure. However, keep in mind that the more organized you are, the less your attorney will need to do and the lower your attorney fees will be (how to save money in your case is discussed in Chapter 10).
Tip: Gather Your Financial Information Right Away
If you are considering divorce, you will need to gather your financial information to exchange with your spouse. Gather this information right now for two reasons. First, by assembling all of your documentation now, you will save money by providing everything to your attorney without delay. Second, right now the information is available to you, but it may not be available to you later. For example, one of you may move out, you may lose access, the documents may go “missing,” or they may have “never existed” in the first place.
Initial Status Conference
The first time that you and your spouse will go to the court will be for the initial status conference (“ISC”). If you have an attorney, they will also attend this conference in person with you. Typically, the judge will be present and it is often (but not always) this judge who will eventually decide your case. The primary purpose of the ISC is for the parties and the court to discuss what is going on in the case andas future deadlines. The court treats each case differently because each case is different in itself—particularly divorce cases.
You may wonder how each divorce could be so different. Part of this lies in the dynamic of each couple. For example, some cases involve domestic violence or child endangerment issues. Not surprisingly, these cases require special attention from the judge. The court will often use the ISC as a time to address these concerns. If your case involves sensitive issues then be sure to inform the court (and your attorney prior to) so that they can take the appropriate action.
However, most ISC’s focus on one question: Is the “status quo” being preserved? Throughout the divorce process, the law requires that the parties maintain the “status quo.” This means that neither party should do things that are out of the ordinary. Although the law on this point is complex and vague, the general rule of thumb is that you should spend money in the same way you did before the divorce started, refrain from moving assets and cash around, and continue to parent your children well. Spouses who cancel credit cards, move cash out of bank accounts, sell assets, or disrupt the co-parenting arrangement are not seen kindly by courts. The parties must follow a set of rules called the “automatic, temporary injunction,” which you can learn more about in our resource on the issue. At the ISC, both attorneys will address whether the status quo is being properly maintained and, if not, will ask for temporary orders (discussed below).
Discovery is the legal process of gathering information in a lawsuit. The rules of discovery for divorce can be found in the Colorado Rules of Civil Procedure under rules 16.2, 26, 30, 33, 34, 37, and 45. Under these rules, the law allows you to gather information by conducting depositions, by sending interrogatories, by sending requests for production of documents, and by issuing subpoenas. Keep in mind that often when one spouse issues discovery, the other spouse will too. Here is what these terms actually mean:
A deposition is a procedure where your attorney can force a person to sit in a room for several hours while your attorney asks them questions. In a divorce, your attorney will often “depose” your spouse to get information about their case and positions. For example, if your spouse runs a business, your attorney may depose them and ask questions about the business’s revenues, expenses, and value.
Interrogatories are written questions sent to your spouse and then answered in written responses. There are both “pattern” and “non-pattern” interrogatories. “Pattern” questions are ones that the court allows you to ask in all cases. You are allowed to issue 10 “non-pattern” interrogatories throughout the entire case, in which you can ask any questions relevant to your case. The person responding to the interrogatories has 35 days to respond.
Requests for production of documents are exactly that, a request that your spouse produce certain documents to you. Again, the same rules above regarding “pattern” and “non-pattern” requests apply here. Your spouse must respond to these requests in 35 days.
A subpoena is a formal request for information to anyone or other than your spouse. In a divorce, this could include a bank, a school, or a hospital, etc.
Tip: Discovery Master
In cases where discovery is contentious and complicated, parties can hire a private person to oversee the discovery efforts. Although this person charges by the hour, occasionally this can be the best course of action because the person is dedicated to streamlining the discovery process and dives into the case to understand all of the complexity. Whether a discovery master is the right choice in your case depends on a number of factors, the most important of which is cost.
Temporary orders are an interim set of rules that apply to your case while you are waiting for permanent orders from the court. These rules can apply to both the parenting and the financial sides of the case. Colorado courts rarely like to hear temporary orders and encourage the parties to agree on how to conduct their lives during the case. However, there are those cases where temporary orders will be necessary because the parties cannot agree. If you think that you might need temporary orders at some point in your case, then be sure to let the judge know at the ISC. Just have your attorney inform the judge that you would like to “reserve your right to temporary orders, should they be necessary.”
Temporary orders are like any other hearing or trial, but it is more abbreviated. The hearing will last a few hours and will address only the disputed, temporary orders issues. For example, if finances are in dispute, the hearing will relate to temporary maintenance and child support. If only parenting is in dispute, the hearing will relate only to parenting time.
You should note that temporary orders will be far more stringent and “black and white” than if the parties maintained the status quo on their own. For example, instead of continuing to share a bank account, the court may order that maintenance be payable from one spouse to the other. Likewise, instead of having a parenting plan agreed to by the parties, the court will decide exactly which days the child will be with which spouse. It is this rigidity that causes Colorado courts to dissuade spouses from seeking temporary orders. However, for many spouses, “black and white” rules are the only rules to which both parties will adhere.
Once disclosures are complete and the case has been stabilized (either through temporary orders or negotiation), the next step is to prepare the case for mediation and then permanent orders (the final trial). This preparation may require the use of expert witnesses. In general, an expert witness is defined as a witness that has greater knowledge in a particular area than the judge would have. Experts are retained to study the parties’ case and come to conclusions about an asset’s value, an income stream, or what might be best for the children. Retaining an expert can be expensive, but often necessary, if you want to get your case resolved correctly the first time.
In divorce cases, experts often include:
Once you have all the information, disclosures, sworn financial statements, and expert opinions the next step is to sit down at a mediation. Mediation is a process where the parties hire an independent, neutral third-party to help facilitate a resolution to their case. The most common type of mediation is “shuttle mediation.” This is a process where you will sit with your attorney in a room, your spouse will sit with their attorney in another room, and the mediator will go back and forth between the two sides conveying offers and counteroffers. If you and your spouse communicate well, then you may prefer to start with “shuttle mediation” and then bring everyone into one room to facilitate a resolution. This is an option, but certainly not required. If you are in a situation that involves domestic violence, there are options to facilitate mediation in a way that protects all parties (such as by phone or from different floors in the same building). At mediation, you and your spouse may settle all or part of your case. For example, it is not uncommon for parents to settle parenting issues, but not financial issues, and vice versa.
Answer: Mediation can be very expensive and time consuming. You will pay your attorney and likely half the cost of the mediator’s fees. Without information, disclosures, and experts, mediating can be a huge waste of time and money because it is impossible for either side to determine whether the offer or counteroffer is good or a bad one. It is very difficult to resolve a case when either party is unsure of the deal on the table. For this reason, we often advise clients to mediate when they have enough information, which is often a few months after the case begins.
Permanent orders is just like temporary orders except (1) the hearing is longer, (2) more testimony and evidence is introduced, and (3) the result is permanent (for the most part). Typically, these hearings are set for at least one full day, although we often see multi-day or multi-week hearings set in certain jurisdictions and depending on the case size. The issues that the court will decide at permanent orders are:
- Parenting Time (Physical Custody)
- Decision Making (Legal Custody)
- Property Division
- Maintenance & Alimony
- Child Support
- Attorneys Fees
- Unique Issues
The court will even decide the issues in this general order:
First, the court will determine “parenting time,” which used to be known as “physical custody.” This is the number of overnights each parent will have with the child or children.
Second, the court will decide “decision making,” which used to be known as “legal custody.” Decision making relates to which parent makes decisions on behalf of the child or children.
Third, the Court will determine how to divide the marital property and who to allocate each piece of property to.
Fourth, the court will decide whether one spouse needs maintenance and, if so, how much maintenance ought to be paid and for how long.
Finally, once the court decides these questions, the court will decide child support, attorney fees, and other unique issues.
Child support is decided last because the calculation to determine the amount of child support owing requires that the court first determine how many overnights each parent will have and how much maintenance is payable. This guide has comprehensive sections on each of these components in the chapters ahead.
Tip: Private Judge
Under Colorado law, you can hire a private judge to hear permanent orders instead of a district court judge. The advantages of this option include: (1) more time for the judge to hear the case, (2) more flexibility in scheduling, and (3) privacy. The disadvantage is cost as these judges charge you for their time.
If you do not like the result at permanent orders, you can always appeal to the Colorado Court of Appeals and possibly to the Colorado Supreme Court. Although the “Guide to Appeals” may be next, suffice it to say for purposes of your divorce, get it right the first time! Appeals can take considerable time and money to complete. However, there are times when appealing a decision is your only option and you must consult with an attorney about how to proceed. An appeal is not something you should even consider without the advice of an attorney.
Tip: Getting it Right the First Time
Many clients believe that the sole purpose of a good divorce attorney is to “win” the case by obtaining the best result possible. However, another consideration should be obtaining the most “accurate” result possible. Whether you settle or go to trial, you want a document that clearly articulates each spouse’s rights and responsibilities. An experienced divorce attorney can not only obtain a preferable result for you, but can also ensure that the settlement or court order actually reflects what you agreed to or what the parties argued. Errors in separation agreements and orders from courts are far more common than you would want to believe, and a good attorney will make sure those errors do not occur.
But what kind of errors you ask? For example, including the wrong address for a home, failing to allocate an asset, allocating an asset that does not exist, putting in a value for a bank account that is wrong, and the list goes on. Get it right the first time.
The final component of the divorce process comes after the divorce is complete. Colorado law has several statutes devoted to “modifying” permanent orders (or the orders outlined in your separation agreement and permanent parenting plan). For example, although the court will decide parental responsibilities at trial, either party may later move to modify parenting time and decision making. As other examples, parties can move to modify child support (up or down), move to modify maintenance (up or down), move to have the divorce reopened (for several reasons), move to have their spouse cited for contempt (for violating orders), and move to enforce portions of the court’s orders. Common “post-decree” motions include:
- Motion to Modify Maintenance
- Motion to Modify Child Support
- Motion to Modify Parenting Time (Relocation Or Otherwise)
- Motion to Reopen Divorce Under C.R.C.P. 16.2(e)(10)
- Motion to Contempt Citation
Getting More Advanced
Now that you know the general framework for how the divorce process works, continue reading to learn exactly how Colorado courts decide each of the major components of your case including custody, maintenance, and property division.