Colorado Divorce and Probate
This overview is intended to provide a summary of the process that occurs in most divorce cases. It is always best to seek the representation of counsel with your divorce, and we hope to receive the opportunity to assist you.
1. Preparing for the Process
A party entering divorce proceedings should do a number of things in preparation, including, but not limited to, the following:
a) Write down your goals regarding all aspects of the case. For example, with respect to a parenting plan for your children, it is important to consider what type of parenting schedule may be in the best interests of the children while at the same time working for the parents. When is it important for the children to be with each parent and why? How will various schedules of the children and the parents be meshed? Do the parties have the ability to work together on decisions concerning their children? With respect to property and financial issues, can or should the family residence be retained and, if so, to which party should it be awarded? How should retirement and other assets be divided? Who should pay what debts and why? Will either party need maintenance in order to financially survive and, if so, how much will be needed and for how long? This list is certainly not exhaustive, but before entering the divorce process or meeting with an attorney it is important to develop some ideas on how you want it all to end.
b) Gather as much financial information and documentation as possible. The parties are required to exchange an extensive list of financial documentation. You should gather your tax returns, most recent statements on all financial and credit accounts, as well as income documentation on all income sources for the family, whether it be from employment, investments, trust arrangements, or other sources. If there has been a dissipation of assets during the marriage through gambling, use of drugs or other such behavior, it is important for you to gather documentation that will demonstrate this pattern. As the court does not have jurisdiction to divide property acquired prior to the marriage or property received by gift or inheritance, it is also important to begin retrieving statements regarding the date of marriage, or the date of gift or inheritance for property claimed as "separate."
c) It is important for you to emotionally prepare yourself for the process. Divorce is generally one of the most stressful events a person will experience. You should go into the process with a realistic attitude. You likely know your spouse better than anyone, and in most instances have a better understanding of how he or she is going to react to the process. These insights can be very helpful to your counsel, and will help you and your counsel manage the process. While no one can control the behavior of another, knowing what to expect will give you a head start.
d) Plan for the expenses. If you plan to retain an attorney—and in most instances you are well advised to do so—you should have a plan concerning how you will pay that attorney. If experts will be necessary, fee arrangements will need to be made for them as well. Most attorneys will require a retainer for payment of fees and costs, which can be as little as $1,000 to $1,500 and as high as $10,000 and more, depending on the complexity of the case and the level of conflict. You can reduce fees by being well prepared and utilizing your best efforts whenever possible, to reduce the level of contention with your spouse, and keeping lines of communication with him or her open. You should expect your attorney to provide you with a written fee agreement and to be clear with you on fee arrangements. You should not be afraid to ask questions concerning these matters.
2. Initiation of Proceedings
An action for dissolution of marriage is commenced by the filing of a “Petition” with the district court in the county of residence. The Petition consists of information concerning the parties, the marriage, and children, if any.
Once the Petition has been filed, it must be served with a “Summons” to the other party. In most cases, the opposing party will be willing to accept the Summons and Petition by signing a “Waiver and Acceptance of Service” which negates the need for personal service by a process server or a law enforcement officer. In cases where both parties have agreed that the divorce should go forward, the parties can jointly file the Petition.
There is a 91 day waiting period after filing of the Petition or completion of service – whichever happens later. That is, the decree dissolving the marriage cannot enter until the 92nd day following the later of filing or service.
Usually the Petition, as well as the Summons and waiver or proof of service, are the only documents filed at the initiation of proceedings. However, in some instances, particularly those involving domestic violence, flight risks with the children, or similar concerns, emergency requests for protection orders or other urgent relief may be filed with the Petition. Obviously, in domestic proceedings the safety of the parties and their children is of paramount concern. While this overview is not intended to cover matters pertaining to emergency relief, it is important that these matters be addressed at the first consultation and certainly before the Petition is filed.
3. First Steps Following Initiation
In most instances, matters of responsibility for children and living expenses can be addressed informally through negotiations between the parties and/or their counsel. In cases where they cannot, the parties can seek relief from the court.
Simultaneously, the parties generally work on preparing their “mandatory financial disclosures” and “Sworn Financial Statement” which details information concerning income, expenses and assets of the family. This process generally takes a couple of weeks or longer, depending on the complexity of the parties’ finances. It is advisable for the parties to complete the disclosures as soon as possible following initiation of the proceedings, as final agreement and settlement cannot be had until the financial disclosures have been exchanged.
It is usually at the end of these initial steps that the parties will also determine the need for involvement of experts, such as appraisers and other valuation experts for the family home and other assets, and/or an expert to assist with the parenting plan. Not all cases require experts, but if needed, your counsel can assist you in assessing and selecting the appropriate experts.
4. After the Initial Steps — The Negotiation Phase
Divorce cases are resolved either by agreement between the parties or by orders entered by the court following a formal proceeding. Most people prefer the former and during this phase actively engage the other party in discussions to achieve a settlement. A final agreement must address a parenting plan if applicable (including a parenting time schedule and allocation of decision-making responsibilities) as well as all financial issues (including division of marital property, responsibility for debts, child support, tax matters, and alimony). While there are common threads noted above, each case generally has unique issues that will need to be addressed in this negotiation phase.
There are numerous means by which the parties may seek to reach an agreement.
5. Completing the Process
If a final agreement is reached, it is reduced to writing, signed by the parties and their respective counsel and filed with the court for approval. In cases where there are no children, or there are children but both parties are represented by attorneys, the court will generally enter a decree dissolving the marriage and approving the agreement without requiring the parties to appear for a hearing. If a court hearing is required, generally it is a short hearing (about 15 minutes) at which the court will conduct a brief review of the agreement and parenting plan for fairness and best interests of the children before approving.
If the parties, despite their efforts, are unable to reach an agreement on all or some of the matters at issue, a permanent orders hearing will be set and held. At this hearing both parties are permitted to provide testimony and present other evidence on the various issues on which there are disagreements. The court has a series of statutory criteria upon which it is to base its decision on parenting issues, property division and so on. Depending on the complexity of the issues, a contested permanent orders hearing can last from one hour to several days. After the court has heard the testimony of the parties and any other witnesses and reviewed any evidence presented, it will then enter “permanent orders” concerning the matters in dispute.
It is important that the parties utilize their best efforts to explore settlement. While the court generally strives to be fair and even handed, the presiding judge has only a short period of time to familiarize himself or herself with the family situation and the issues in need of resolution. While some cases must be heard by the court, most cases are resolved by agreement and the parties are well advised to strive to reach agreement in all areas where they are able.