Divorce & Legal Separation
Denver Family Law and Divorce AttorneyDivorce in Denver, Colorado is known as a dissolution of marriage. The divorce will still end in both spouses being single and able to remarry if they so choose. Couples also have the option for an annulment, if applicable. An annulment differs from divorce, though. An annulment claims that a marriage was never legal to begin with. Either one spouse was too young to make the decision, they were tricked into the marriage or one spouse was already married at the time. A divorce, on the other hand, is the dissolution of an entirely legal marriage that is no longer working. Colorado is a no-fault state when it comes to divorce. This means that the courts have no interest in any misconduct that lead to the divorce. For example, adultery or abuse. So, when the court decides how to divide property or grant alimony, the ‘better behaved’ spouse does not get special treatment or bonus points for staying virtuous throughout the marriage. However, for a divorce to be granted in Colorado, one spouse must have lived in the state of Colorado for at least 90 days before filing the legal paperwork for a divorce. With Colorado being a no-fault state, that also means that both spouses do not have to agree to the divorce or participate in the divorce process. In other words, if one spouse wants to file for a divorce and the other does not, they may motion or request for a ‘default’ judgement which would allow them to proceed with the divorce case regardless.
A divorce in Colorado will cover all of the underlying separations and financial sorting necessary to finalize the divorce. Once the divorce is complete, all of the required organizing of assets and time will be handled, such as:
- Division of shared property
- Any restraining orders
- Necessary child custody
- Child visitation orders
- Child support
- Alimony (spousal or partner support)
Dividing PropertyOftentimes, spouses are unable to amicably make a decision on how to properly divide their property and assets. This is when a court hearing would come into play, deciding the division for the couple. In doing so, the court will separate property and assets into ‘shared’ and ‘marital’ property. Separate property is any property or assets that is clearly one spouse’s over the other. This would be anything or money that was acquired previous to the marriage or after a legal separation (if applicable). Separate property is also any gifts or inheritances that were clearly issued or given to one spouse. Lastly, separate property may be anything or money that was agreed upon by both spouses, in a valid manner, to be one spouse’s over the other. An example of this may be stocks earned throughout one spouse’s employment. Marital property is where it gets tricky. This is all property and assets that were shared and acquired over the course of the marriage. Colorado being a no-fault state can sometimes hurt the party filing for the divorce. For example, if a man is filing for a divorce because his wife had been cheating on him for many years, he often feels wronged in the process of property division because he feels entitled to more of the assets than his wife whom he may feel is responsible for the divorce. Since no-fault states do not take misconduct into consideration when dividing property, here is what they do look at:
- How much each spouse contributed to the acquisition of the marital property
- How much each spouse contributed to homemaking
- The value of the property and assets allocated to each spouse
- The economic environment each spouse will face individually after the divorce
- The value of each spouse’s separate property and whether it has the potential to increase or decrease in value over time
- The use and value of any separate property for marital purposes
Legal SeparationA legal separation, simply, is a court order which is a lawful arrangement by which a couple remains married but lives apart. To much dismay, a legal separation is no more simple or less stressful than a divorce. Couples seeking a legal separation will go through all the same hoops and battles that a divorce case would make them go through, though they will end up still legally married as opposed to with a decree of dissolution.
What are the benefits of a legal separation?
A legal separation will allow both parties to reap the benefits of things such as health care plans and insurance policies, military benefits and more. Some couples would prefer to be legally separated rather than divorced because they may follow a religion that looks down on divorce.
Would legal separation still allow us to divvy up our assets?
Yes. As stated previously, a legal separation will go through almost the exact same process as a divorce, such as allocating property and assets. A legal separation will also take care of any maintenance, or alimony, due, as well as child support or debts owed.
Can a couple still divorce after or during a legal separation?
Yes. One party, or the couple, may motion for a divorce instead of a legal separation after filing for a divorce. Though, once the legal separation has been issued, they may convert from a decree of legal separation to a decree of dissolution after six months have passed.
Can a person who is legally separated get remarried?
No. You cannot get remarried if you are legally separated, because you are still legally considered married. One of the biggest takeaways each party in the couple seeking legal separation should know is that until they are formally divorced, neither party can remarry. This may pose an issue for some people, as they don’t realize that a legal separation does not free them from marriage. After all, the only reason each person may receive benefits such as insurance and health care is because they are still legally married.
If there isn’t a big difference between legal separation and divorce, why do it?
Aside from religious reasons, some people use a legal separation as testing grounds for divorce. They may not be 100% sure they want a divorce, but they are ready to separate enough to not live with each other. Now, of course, a couple does not need a legal separation to decide not to live with one another, but if they would like full possession of their assets or earned income, then a legal separation may be the best route to take. It is also noteworthy to say that just because a couple may decide to live in separate homes, that does not deem them legally separated. Just as with divorce, a legal separation is a court approved agreement.
What if one party is afraid of retaliation upon suggesting a legal separation?
Colorado law provides an Automatic Temporary Injunction provision which allows both parties to be covered and protected right off the bat. Once the legal separation is served, the provision goes into effect. The provision protects both parties of four main things:
- The unnecessary disposing or selling of shared property or funds without consent
- Disturbing the peace
- The cancelling or nonpayment of any healthcare or insurance premiums without 14 days of notice. This includes auto insurance, homeowner or renter’s insurance, etc. as well as any insurance that covers any children involved
- Removing any minor children from the state without consent