|
|
|
|
Legal Separation Colorado Springs, declaration of invalidity - aka annulment, allocation of parental responsibilities - fka child custody, parenting time - fka visitation, spousal maintenance - fka alimony, child support enforcement, property division, debt allocation, domestic abuse restraining orders and domestic violence criminal defense. Colorado Springs. It exists in Colorado. If you are common law married, to lawfully resolve the marriage you must file for legal separation or dissolution of marriage. The marriage is as lawful as if you had become married before a minister, judge or magistrate. Please refer to the Common Law Marriage page for more detailed information.
Either the husband or wife must be a legal resident of Colorado for at least 90 days before you can file for legal separation. Legal residency, called domicile, is not the same as simply living here. A person acquires legal residence by having significant contacts with the state. One party must intend to permanently reside here, or return here after all travels are done. Some of the objective indicators are: Colorado driver's license, Colorado automobile registration, paying Colorado state income taxes, registration to vote in Colorado, banking in Colorado, & home ownership or having executed a lease. In Lyons v. Eagan, 110 Colo. 227, 132 P.2d 774, the Colorado Supreme Court quoted with approval from Rapaljae & Lawrence's Dictionary the following: "The distinction between mere residence and domicile must be borne in mind. The former is used in law to denote that a person dwells in a given place; the latter is the legal home of a person, or that place where the law presumes that he has the intention of permanently residing although he may be absent from it." Put simply, the concept is "ET Phone Home - Hooome." Legal residence is required. If neither the husband nor the wife are a Colorado legal resident, Colorado courts do not have the power to grant a legal separation. If you are not a Colorado legal resident and have no intention of becoming a Colorado legal resident, you must seek a legal separation in your home state. To be a Colorado legal resident, military personnel must claim Colorado as their home of record. If Colorado is not presently the home of record, Form DD-2058 affidavit of residency may be found at a military finance office or refer to above link for PDF file. Free Acrobat Reader Download The form must be filed with the military finance office to cause Colorado state income taxes to be withheld. I have had military clients inquire whether they could file the Form DD-2058, temporarily claim Colorado as the home of record while the dissolution of marriage or legal separation case is pending, then switch back to a state which has no state income tax. NO. That will jeopardize the court's jurisdiction and validity of the decree. I will not participate in subterfuge.
The only grounds in Colorado are incompatibility; we are a no fault state. CRS 14-10-106 The term used in your case will be that the marriage is irretrievably broken. In other words, you can't patch up the marriage, even with counseling. You need not and will not be allowed to tell the court the "bad things" your spouse has done. Under Colorado law, fault is not admissible except in very limited circumstances in disputes involving children. The name of a third party having an affair with you or your spouse is not admissible. Naming a third party in a legal separation is a misdemeanor (crime) punishable by a $1,000 maximum fine and or 90 days maximum jail.
Breach of contract to marry, alienation of
affection, criminal conversation and seduction (adultery lawsuits) are not
possible in Colorado. Even threatening to bring an adultery civil lawsuit is a
crime punishable as indicated above. CRS
13-20-201, et. seq.
One of you will file a petition asking the court to dissolve the marriage and decide the issues of parental responsibility allocation, parenting time, child support, spousal maintenance, division of property and division of debt. That person will be called the petitioner. The petition and a summons will be served upon your spouse. The summons merely tells your spouse he or she is being sued for legal separation. Service means that the papers will be handed to your spouse, or perhaps published in the newspaper under limited circumstances. Due process (fairness) requires you to inform your spouse that you are requesting a legal separation. Service of process on an average costs between $35 and $50, but can vary. If your spouse is willing to sign a paper saying he or she received the legal documents, you can use the mail and there is no charge for service of process. That is called waiver and acceptance of service of process. Spouses usually don't sign; I don't recommend attempting waiver of service.
The person who is sued will be called the respondent. He or she is required to file a response with the court. Other than the difference in the filing fee, it does not matter who is the petitioner and who is the respondent. It is not a race to the courthouse. After filing and service of process on the respondent, by law there is a mandatory 90 day waiting period before the legal separation can be finalized. This is a cooling off period. CRS 14-10-106 Upon commencement of the lawsuit, the following injunction enters automatically by operation of law. CRS 14-10-107
If the facts warrant, the court may grant a request to actually impound assets or money and take them out of the control of yourself or your spouse. If you have children, in El Paso County both the husband and wife will be ordered to attend one parenting class during which a video will be shown. You need not attend together. It does not matter whether you agree on all issues regarding the children or not; the parenting class is mandatory before final decree enters.
You may have a temporary orders hearing, at which time the judge will allocate parental responsibility and enter orders regarding parenting time, child support, spousal maintenance, and who may use property or must pay debt temporarily while the case is in progress until final orders are entered. That hearing is frequently about 2-4 weeks after filing. The court's docket will determine how soon the hearing can be held after filing. The attorney will try to settle your case during the 90 day waiting period. If agreements can be reached with your spouse, the attorney will prepare a detailed written agreement. That agreement will eventually become part of the final decree (order).
If
a written settlement agreement has been made and filed: If the parties can not agree, the case will enter the contested phases of the lawsuit. This may include child custody evaluations, psychological evaluations in child dispute cases, or real estate or personal property appraisals and mediation. Each party may be required to produce copies of billings, canceled checks, bank statements, pension or other financial documents. Each party is required to file a detailed financial affidavit. A disclosure certificate must be filed with the court reflecting that each have provided numerous financial documents to the other. It is possible that depositions will be taken. That means questioning under oath in front of a court reporter who records all statements. Interrogatories may also be used. Interrogatories are written questions which must be answered in writing under oath. In the discovery phase of the case, both parties have the opportunity to learn almost anything he / she wants to know to prepare his / her case. The days of Perry Mason and surprises in court are gone. Discovery is frequently expensive - cost can be reduced if both parties are open and voluntarily exchange financial documents. If the parties can't settle and must set court hearings, mediation is required before setting a contested final hearing. For additional information, refer to the Mediation & Arbitration page of my primary website. Before temporary or final orders hearings, most judges require a pre-trial statement - a written statement which advises the court of agreements, contested matters, facts and law, parenting plan and other disposition requested by each party. Counsel may attend a pre-trial or status conference in chambers at which time each side advises the judge what of agreements, disputes and issues - what the court fight will be about. Some judges do not allow the parties into chambers during a pre-trial conference, others require the parties to be present. Any legal separation may be involuntarily set into the Dignity non-adversarial settlement and case management program emphasizing cooperation, disclosure and informal settlement. The parties and attorneys meet with the judge in chambers 2-3 times over a 90-120 day period, commencing about 30 days after a petition is filed. The court hopes an agreement and a decree are completed during that period. A non-appearance affidavit is used to formalize the decree. Parties with children are still required to go to the parent education class but no party is required to attend mediation. The judge will set initial and subsequent conferences. The initial conference may be used to adopt temporary orders. Full financial affidavits are required. Unless authorized by the judge, no motions may be filed. Only one court-appointed expert on any contested issue is allowed. No formal discovery is authorized. After final hearing, if a litigant does not like the judge's decision, appeal must be filed in the Court of Appeals. Generally, a party can not state he / she does not like the ruling & ask for a new ruling or judge. If the parties can reach agreements, a legal separation can generally be completed in about 4 months from start to finish. If the parties can not agree, it may take as long as 1 - 2 years. Tell your attorney if you have plans to marry another in the near future, if the wife in the present marriage is pregnant, or if either alleges the husband is not the father of a child. Once a response has been filed, the case may not be dismissed (thrown out) unless both parties agree. If both agree, the case may be dismissed at any time until the final orders have been entered. If one party wants the decree, the other can not stop it. Either may ask for court ordered marital counseling, but it probably will not be ordered if the other simply states the marriage can not be saved; he or she does not desire counseling.
Effective January 1, 2005 Colorado Rule of Civil Procedure C.R.Civ.P. 16.2 was adopted which provides for mandatory disclosure (discovery), limited motion practice and case management by the court. Judges and magistrates are serious about Rule 16.2 obligations and judicial case management. Once the case is filed, be prepared to disclose documentation and move the case forward in a timely fashion. Refer to the above link to view the rule - it applies to the initial case and post decree matters. To assist in rapid case preparation, fact sheets have been made available on-line. Open file password is given to a client or sent via email once retained. Counsel asks clients to invest significant effort at commencement of representation to provide an understanding of the relevant facts and documents which must be disclosed. Judicial case management has removed any dilly dallying - timely case preparation is now obligatory to avoid sanctions.
If removal of the spouse from the marital home is necessary, court orders may be obtained, and done without prior notice under some circumstances. However, it is preferable to work out the residence without court orders. There is no pleasant or enjoyable way to physically separate. If necessary, either party may hire an off duty police officer to be present and keep the peace while household goods are being physically moved. You may attempt to hire an off duty law enforcement officer by calling the Colorado Springs Police Department or the El Paso County Sheriff's Office. No officer will participate in deciding who may take or keep individual items, the officer will merely keep the peace. Plan on $50+ minimum. To provide for an efficient and rapid move, make certain sufficient manpower, truck space, dollies, pads, etc. have been arranged in advance.
The court previously decided legal custody (decision making), physical child custody (where a child lived) and visitation ( the schedule upon which the non-custodial parent was entitled to see a child) based upon the best interest of the children. In effort to eliminate the idea that children are items to be awarded in a legal separation, terminology has changed. Custody and visitation no longer exist in Colorado except as is required for tax exemptions. CRS 14-10-131.7 Refer to allocation of parental responsibilities and parenting time below.
Allocation of parental responsibilities CRS 14-10-124 Decision making for children remains an issue for the court to rule upon. That is now called allocation of parental responsibilities. The court addresses day to day decision making, as well as major decisions such as religion, medical care, education and general welfare issue which affect a child. Major decision making may be ordered jointly, or by the parent with whom the child primarily resides. Provision is also made for future dispute resolution, such as submission to mediation, arbitration, or request for the court to review the disputes. The court may order joint decision making without agreement of the parties, even over each parties' objection.
Parenting time encompasses court rulings regarding the children's primary residence and upon what schedule the other parent will have the children physically present with him or her. The court continues to use the best interest of the child as the polestar. CRS 14-10-123.4 More emphasis is now placed on each parent assisting with children's obligations, such as homework, taking the children to activities, etc. If possible, children should have liberal access to each parent - children have a right to know and love each parent. Under limited circumstances, parenting time may be restricted or denied by the court if in a child's best interest. The court will consider denial of or failure to exercise parenting time in ruling upon decision making, primary physical residence and parenting time. Parenting time
enforcement. CRS
14-10.5-104 The court may utilize:
Access to records.
"Custody battle" with
significant other or extended family member.
Motion to modify - affidavit
required.
Terminology sometimes appears confusing, however it may not seem so difficult when you understand the court will be ordering how major decisions affecting children will be made, and deciding separately who will be the primary caretaker for the children. Obtain a spiral notebook and keep brief notes regarding matters pertaining to the children, both agreements and disputes. Date each entry, state only facts, not opinions, and make each entry brief. Keep a record of parenting time requests, including dates & times, parenting time exercised, and relevant facts. Your notes may be later used to refresh your recollection on the witness stand and will be used by the lawyer to prepare for hearings. With notes, you may effectively rebut false claims of your spouse and you will have a record to build your case. Advise the attorney not only of favorable circumstances, but of facts which may be harmful to your case. Allowing your attorney to be educated by opposing counsel in court is very damaging to your case. If you and your spouse are contemplating a "custody battle," seriously consider the matter in light of the effect it may have on your children. Custody evaluation is likely and a guardian ad litem or special advocate may be appointed by the court to represent the best interests of your child(ren). You must be prepared to commit substantial financial resources. &nb | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
