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Basic Information, Definitions, & FAQ

 

  • What is a “dissolution” of marriage?

Under Colorado law, courts refer to a “divorce” as a “dissolution” of marriage. The set of laws that govern a divorce can be found in Title 14, Article 10, which is referred to as the “Uniform Dissolution of Marriage Act.”

 

  • What are valid grounds for divorce?

Colorado is a “no-fault” divorce state. What this means is that if someone wants a divorce, they are entitled to a divorce whether the other party agrees or not. In the old days, to obtain a divorce, one of the parties had to prove fault, cruelty, or adultery in order to obtain a divorce but now anyone can get a divorce for any reason.

The shift away from a fault-based system is often confusing to divorcing spouses because the behavior of the other spouse is often extremely relevant. However, Colorado courts are not interested in hearing about bad behavior, moral failings, cheating, and the like and are instructed by statute not to consider such evidence. Parties are typically very surprised to learn that such issues are simply not relevant to the division of property or other financial issues like support. Generally, infidelity, lies, and other bad behavior are referred to as “marital fault” and is not considered by the court.

In contrast to “marital fault,” however, is “economic fault.” Economic fault is considered by courts and occurs when either spouse dissipates or wastes marital funds. If one spouse spent lavishly during an affair, that fact can be considered by the court. The key distinction is this: the affair itself is irrelevant but the spending related to the affair might be considered. For more information about dissipation of marital assets, take a look at our article on the topic: Divorce and Dissipation: Hidden Assets and Spending.

 

  • What is a legal separation?

A legal separation is like a divorce in every way except that the parties remain legally married. When spouses are legally separated, they can live separate lives without being legally bound by the actions and contracts of the other. Under a decree of legal separation, the court will divide the marital property, establish support, and determine parenting issues (time and decision making). However, a legal separation does not terminate the marriage, and the parties are still considered “spouses” for purposes of remarriage (and bigamy).

There are several reasons people seek separations rather than divorces. Some are not willing to admit that the marriage is over and others have religious reasons. When spouses are legally separated, either may request a decree of dissolution before the final hearing on the petition for legal separation and such requests convert the issue from a petition for legal separation to a dissolution action. Also, once a decree of legal separation has been granted, either party may, at any time after six months pass, upon notice to the other party, request that the court change the legal separation into a dissolution and the other person cannot stop the issuance of a decree of dissolution.

 

  • What is a Decree of Dissolution?

The decree is the actual court order that grants your divorce. It will contain information like a name change and details of whether or not a separation agreement was entered into.

 

  • How long does it take to obtain a divorce or legal separation?

The parties must wait a minimum of 91 days before either a decree of dissolution or legal separation may be final. This time period commences when the petition is served. A divorce case can take from 91 days up to about two years depending upon the complexity of the case.

 

  • How is a process of Legal Separation or Dissolution initiated?

The legal process for both actions is the same. A “petition” and “summons” are filed at the court by one spouse, his/her attorney, or jointly by both spouses (a “co-petition”). The petition contains many statistics about the parties and the marriage, including that the residency requirement has been satisfied, and includes a request that the marriage be dissolved. It asks the court to do enter orders, on a case by case basis, to do things like divide the property, allocate parental responsibility and child support, order maintenance (spousal support), award attorney’s fees, and court costs.

 

  • What is “service of process”?

After the Petition is filed, the other spouse must receive proper notification that it has been filed. A copy of the Petition can be handed to your spouse who can sign a Waiver of Service. The Waiver simply acknowledges the person has received a copy of the petition. Just to note, interested parties cannot serve the petition; you may have to hire a process server or use the Sheriff’s department to serve your petition.

 

  • What are the residency requirements?

Prior to filing your petition for dissolution of marriage or legal separation, either you or your spouse must have resided in Colorado for at least the past ninety-one days.

 

  • Does it matter to the merits of the case which spouse files?

No. There is no legal significance as to whether either party files the petition. However, in a trial, the “order of presentation” is determined by who files first, so some attorneys believe that going first or last in making the presentation to the court confers some advantage. Usually, it is a wash and most would not advocate rushing to file for this reason alone. Having said that, it can matter where you file first if one person lives out of state. It is important you get legal advice as quickly as possible.

 

  • What is an “uncontested” divorce?

If both parties agree to everything that must be decided in a divorce, the court will generally approve an agreement between the parties as soon after the 91 days if the separation agreement has been submitted to the court for approval. In some cases, a separation agreement can be submitted without the parties having to go to court, in which case the decree can be entered without a hearing before a judge. In divorces where there are no minor children, this can be accomplished by filing an agreement, but in cases where there are minor children, the parties can only avoid court if they are both represented by attorneys who can ensure that the agreements around the children have been made in the best interests of the children.

 

  • What if there are disputed matters?

If you and your spouse cannot agree on all issues, you do not have an “uncontested” divorce and a trial may be necessary. Before a hearing is held, the court will require that you attempt mediation, as many issues can be resolved in mediation. If they are not, then the court will hold a trial to decide any disputed matters concerning parental responsibility, parenting time, support, the division of property and debts, and the payment of court and attorney fees.

There are several types of hearings that can happen in a divorce. If you cannot decide on things such as paying bills, who lives in the house if one of you moves out, or other issues that need to be settled before the divorce is over, you may have a “Temporary Orders” hearing. Emergency issues can be addressed on an emergency basis, but only if a court agrees that there is a true emergency. Most issues wait until the end and are addressed at the Permanent Orders’ hearing.

 

  • When is the divorce final?

The divorce is final either on the day it is granted in court or, if the divorce is granted by affidavit (by mail), on the day the Judge signs the decree. If an appeal is filed, the orders of the court can be reviewed and possibly changed, but the granting of the divorce is final.