Vail Law: Colorado’s marital dissolution laws have their quirks (column)
July 24, 2018
Divorce. No, dissolution. This is just the beginning of how Colorado is a little screwy. The "why," we'll leave for another time. For now, just accept that — at least as divorce (oops, martial dissolution) terms are involved, Colorado is a little odd.
Let's start at the beginning.
In Colorado, a divorce action is referred to as a martial dissolution action. While the two terms mean essentially the same thing, "dissolution" seems to have a softer edge. It implies that the couple is taking something apart rather than shattering it to bits.
In Colorado, one commences a suit for divorce by filing a petition for dissolution of marriage. There are two ways to do this: a co-petition where the parties agree that they are divorcing one another and proceed as co-petitioners, and an adversarial petition where one party is the petitioner and the other is the respondent, which implies that the petitioner is suing the respondent for divorce. Whether proceeding hand-in-hand or with dueling pistols drawn at 20 paces, the result, when the whole shebang is wound up, is essentially the same. But maybe there are a few more niceties and a bit less conflict when the separating couple proceeds a skosh more cooperatively. Most times, I encourage a co-petition to try and get this off on the right foot.
Once the ship of dissolution has sailed, there are other things to deal with, each with their own Colorado-branded names. For instance, rather than determining alimony, the couple may wrestle over spousal maintenance. Spousal maintenance is essentially the same as alimony but with a "Colorful Colorado" spin.
Most times, determination of maintenance is formulaic. You plug in numbers about the parties' incomes, an algorithm does its magic, and, "pay this for this long" pops out the other end. While that's not always the case — and through negotiation, the parties can amend the algorithmic product — it is, at the least, a starting point for meaningful conversation.
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What about kids?
Other matters, presuming there are kids, involve the kids.
While most folks think of "custody," Colorado does not. Not explicitly anyway. What the law in Colorado dwells on instead is "parental decision-making" and "allocation of parenting time."
Decision-making deals with — not entirely unsurprisingly — who gets to make decisions for the children. Most often, this falls into four categories. Who makes decisions for the kids regarding: where they will live, what their religious upbringing will be, matters of education and matters related to their medical care. While the default position is usually joint decision-making in all matters, this can be sliced and diced and parsed out to meet the particular needs and circumstances of the children and (to a lesser degree) the parents.
Before I go on to elaborate on allocation of parenting time, this last bit is worth a short but meaningful detour. Above, I implied that the needs of the children are primary and those of the parents are secondary.
The brightest light shined on domestic matters under Colorado law is that where there are children involved, their needs — not the parents — are preeminent. What best serves the welfare of the children is a refrain sung by the court again and yet again. What is convenient for the parents matters but pales in comparison to making sure, as The Who famously observed, "the kids are alright."
"Parental allocation" sounds a bit sterile but what it infers is how — in a less bloody application of Solomonic wisdom — the kids are split up. Not literally, of course, but rather who gets to spend time with the kids on what schedule and in what proportion. Mom gets the first week of winter break, Dad the second; Mom gets Christmas Eve, Dad Christmas Day … like that.
The marital estate
There is another allocation out there with which to contend: allocation of the marital estate. Sheesh. What this highfalutin' mouthful means in simple terms is who gets what. Who gets the house? Who gets the savings accounts and investments? Who takes what debt?
If the disputes between the parties cannot be resolved between the parties themselves with assistance of their respective lawyers, then the court will order mediation before the matter may proceed to resolution by the court. Mediation is a process by which a neutral party (often a retired judge) attempts to guide and facilitate the parties' resolution of the pending matters upon which agreement has not been reached. Although often quite effective, the neutral party is not a decision-maker and the parties must agree to achieve an armistice outcome acceptable to them both.
If mediation fails, then the matter proceeds to court. To trial? Nope, not in domestic matters. Instead, the matter will proceed to a Permanent Orders Hearing, which is trial-like in most regards. Testimony is taken. Evidence is presented. Among those matters which are different, however, is that "fault" is not an issue (this being a "no fault" divorce state) and come hell or high water, there is no right to a jury trial.
If the matter is resolved by negotiation or by mediation, then a separation agreement, which is really a divorce agreement, is entered with the court. If "fair and not unconscionable," then most times the court adopts it and enters it as an order of the court. If there are minor kids, then a proposed parenting plan will also be admitted to the court for its consideration and adoption. If, instead, resolution awaits determination by the court, the court will make certain findings and enter them in the form of a decree. The decree of dissolution of marriage will be entered by the court regardless of the path that brought the parties there, whether by negotiated settlement, mediation or by "trial" before the court at the permanent orders hearing.
In domestic matters, Colorado has its quirks. But what is universal is that things just didn't work out.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.