Robbins: A confusion of terms in Colorado domestic law
It is little wonder that folks are tortured by Colorado domestic law. While what people think they know may in fact be right, what we call those things in Colorado may lead to confusion.
Let’s accept you know what a horse is but if we called a horse in Colorado a push-me-pull-you, for example, it would be natural to say, “Huh?”
Sometimes, it’s like that here. And in addition, different states have different laws which you can’t blame people for not parsing out. A biggie is the distinction between community property states and those that are not.
As a starting point, Colorado is not. We are, instead, what is known as an equitable division state.
Only nine states are community property states — each of which seems to have little in common among them. California is one. So too are Louisiana and Texas. Washington and Arizona are two more.
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In three states — California, Nevada and Washington — domestic partnerships (that is, not quite marriages) must also legally operate under community property law.
In several other states, spouses can decide to opt into a community property system or designate certain assets as community property. The states that allow this are Alaska, Florida, Kentucky, Tennessee and South Dakota.
In community property states, divorcing couples are required to split all assets acquired during the marriage equally.
In the other states — those that are not community property states — common law abides. In short, what “common law” means is a law that is derived from custom and judicial precedent (although, to be certain, statutory law — that is formed by the legislature — also plays a role).
Community property states default to nearly all assets and debts acquired under marriage to be joint and equally shared. Equal means equal. However, in non-community property states, not necessarily.
Colorado, for example, is what is known as an “equitable division” state. On divorce, when the assets (and debts) of a marriage are divvied up, the hallmark is what is “fair” under all the circumstances rather than what may be precisely equal.
Understand that when a couple gets divorced, besides the hurt and turmoil, there are three basic things to be resolved: if there are minor children, how will they be cared for and provided for financially? How will the debts and assets be divided? And will one of the parties or the other be ordered to pay the other what is known in most states as alimony (and if so, in what amount and for how long)? There are other details, such as who will pay what portion of the attorney fees.
As noted above, most states call what we know as alimony just that. Not Colorado. The same concept here is known as “spousal maintenance” or just “maintenance.” The concept is, however, the same: Will the higher-earning party have to pay something to the lower earner to help them transition to their new life and afford them a lifestyle similar to the one to which they had grown accustomed before the divorce?
In Colorado, child support is called, well … child support. Fancy that. Child support is the monthly payment of money from one parent to the other to assist in caring for their children when the parents do not live together and will be ordered irrespective of whether or not the couple was married. You bring kids into this world, you are responsible for them.
A confusing concept in this state is that of “custody” which most people reasonably believe means who gets the kids and when. In this state, however, that is known as the “allocation of parental rights.” A companion concept is called “parental decision-making” and generally extends to three — and perhaps four — areas of the children’s lives. Following their separation, does the couple decide jointly or individually where the children will primarily live, where they will attend school, who will make medical decisions on their behalf, and — at least sometimes — who will decide the shape of their religious exposures and education?
Besides the allocation of parental rights and decision-making, there are other things to work out as well: Whose home will be “primary” for purposes of the children’s legal address? Who will claim head of household and other tax credits? Who will bear what portion of unreimbursed medical expenses, co-pays, deductibles, the premiums themselves? And who will bear what portion of the children’s extracurricular activities?
Although the foregoing are the basics, there can at times be a zillion other things to think about, both during the process of divorce and after. For example, what if, following divorce, one party or the other wishes to move out of state with the kids? What if a parent remarries — is that parent still entitled to maintenance? What if a parent dies or simply disappears before his or her obligations are fulfilled?
Lots to think about.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, 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 at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.
