Divorce vs. Legal Separation
In Colorado, a legal separation is like a divorce in every way except that the parties remain legally married. However, there are subtle differences and you may want to choose one over the other. In a legal separation, a case is filed with the court and decisions are made regarding the same issues as in a divorce such as custody, maintenance, child support, and property division. A legal separation is exactly what it says it is, it separates the two spouses “legally,” but does not “divorce” them.
Parties may choose a legal separation over a divorce for many reasons including:
- The spouses may have a religious opposition to getting a divorce;
- The spouses want to reconcile but have concerns about maintaining joint finances. This is often due to one spouse having trouble managing money or is engaging in reckless behavior depleting the marital estate’s resources (a drug habit, for example);
- There may be tax-related or insurance-related benefits to remaining married;
- There may be retirement-related benefits to staying married, particularly if one spouse is in the military; and,
- The parties may simply not be ready to be “divorced.”
Converting a Legal Separation into a Divorce
When spouses are legally separated, either may request a decree of dissolution before the final hearing and the court will convert the case from a legal separation to a divorce. Once a decree of legal separation has been granted, either party may request that the court change the legal separation into a divorce although it can be more challenging to perform the conversion once the case is over.
How do you File for A Legal Separation
In the exact same fashion as a divorce–by filing a petition with a Colorado district court. The two are so similar that when clients come and consult with us, they often go with a divorce over a legal separation because the process is so similar anyway.
What is the cost of a Legal Separation
The cost of a legal separation is essentially the same as a divorce as both processes involve the exact same issues. There are very few, if any, cost-related benefits to filing for a legal separation over a divorce. The costliest components are the costs associated with expert fees, mediator fees, and attorney fees.
Interstate Custody Issues
We often see cases where the parties live in separate states or have moved around the country. If you have children, this may implicate a statute called The Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA). This statute provides a framework for determining which state has jurisdiction over your children and parenting. Importantly, you should know that Colorado has “emergency jurisdiction” to deal with emergencies even if it does not have permanent jurisdiction. Learn more about the UCCJEA in one of our blogs.
Domestic violence is more common in divorce than most would believe. For more information about this topic, take a look at some of our other blogs that discuss the topic in more detail.
Endangerment of the Children
Colorado courts are instructed to treat the needs of your children with paramount importance. No issue is more important to a Colorado court than an issue affecting your child. If you believe that your spouse is endangering them, you have recourse in the form of a “motion to restrict parenting time” (sometimes referred to as a “motion to restrict”). In general, these motions provide emergency relief for a period of 14 days in certain cases. Learn more about these sorts of motions from one of our resources on the issue.
What happens when your spouse or ex-spouse disobeys a court order? The judge will hold them in “contempt.” Unlike the contempt you see in movies where the judge bangs a gavel and orders the person to jail, most contempt actions are what the law calls an “indirect contempt.” An “indirect contempt” involves something that happens outside the presence of the court, which is the vast majority of things. Because the conduct occurs outside the courtroom, the indirect contempt process involves a hearing so that the court can hear the evidence about what happened. If the court determines that their order was violated, the court will hold the person in contempt and can order the person to pay money or even go to jail. Learn more about the process of contempt here.
Tax Consequences of Divorce
Divorces involve numerous tax issues. Although an explanation of the tax code and how it implicates divorce is beyond this introductory article, you should know that these issues are important. Take a look at some of our other blogs related to these issues:
Civil Litigation & Divorce
Divorces often have other litigation that may be related to the divorce itself. For example, spouses may have claims against one another for torts such as battery, assault, or the like. Spouses may have conducted businesses together and have civil claims against each other related to their business relationship. Even more complicated, spouses and their families may have claims against one another for gifts, loans, or other contracts. These issues are complex and but you can learn more about claims for breach of contract, breach of fiduciary duty, and unjust enrichment here.
Prenuptial and Postnuptial Agreements
Prenuptial and postnuptial agreements often make divorce much more complicated. Indeed, many of Griffiths Law’s most contentious cases are those involving these sorts of agreements. To learn more about these sorts of agreements, take a look at our blog on prenuptial agreements.
Marijuana & Divorce/Custody
Griffiths Law’s attorneys have extensive experience dealing with marijuana in divorce. For example, marijuana businesses pose unique problems for a divorce and marijuana use by parents can be equally complicated. Learn more about how marijuana and divorce intersect:
Common Law Marriage
Common law marriage exists in Colorado. Learn more about common law marriage including how one is formed and how it can be dissolved from our blog on the “truth” about common law marriage.