Information

Divorce: How The Proceeding Works

A divorce begins with the filing of a Petition for Dissolution of Marriage with a court, and at least 91 days must elapse from the time of the filing of the Petition to the time the court will enter a decree dissolving the marriage. If spouses have contested issues regarding their divorce, it may take anywhere from the required minimum of 90 days to upwards of a few years for the divorce to become final.  If the spouses can reach an agreement, their divorce can be complete after 90 days.

After the Petition has been filed, the other spouse files a Response, and the Court will then mail to each spouse a Case Management Order and an order to attend parenting classes if you have children.  You must attend a parenting class if you have children of the marriage.

You will be ordered to attend an initial conference within a short time after filing the Petition, which is a meeting with either a judge or a court facilitator in which you address temporary orders and discovery, which begins after the conference.  Temporary orders can include orders regarding parenting time, child support, maintenance and debt payments.    

You must be prepared with a completed sworn financial statement when attending this conference. 

Your case may be set for a status conference or a permanent orders hearing. The permanent orders hearing is the hearing at which the divorce is finalized, and the court enters final orders regarding parenting time, parental decision making, child support, maintenance, property division, debt division, attorney fees, name changes, and enters a decree of dissolution.

Parenting Time & Responsibilities

The best interest of the child standard determines the allocation of both parenting time and parental responsibilities.  Parenting time relates to actual time spent with the child, while parental responsibility refers to decision-making regarding the child.   If parents have joint parental responsibility of a child, they will share decision-making responsibility for that child’s health, education, religion and general welfare.  Additionally, parents may share parenting time of the child equally, or one parent’s home can be the primary legal residence of the child while the other parent has a certain amount of parenting time. 

If the parents cannot agree on how to allocate parenting responsibilities or parenting time, the court will make the determination based on the best interest of the child and take into consideration a number of other factors as well.

The courts are beginning to hold more consistently that it is in the child’s best interest to have both parents in his or her life as much as possible, and equal parenting time is becoming more and more popular among judges.  With this newer trend, courts have been more willing to consider the father’s residence as the child’s primary residence, and have granting both parents as much time with the child as fair and possible.

Child Support

In Colorado, child support is determined using statutory guidelines.  This means the court plugs certain numbers into a formula to arrive at the child support amount to be paid by one spouse or the other each month.  These calculations are also programmed into family law software used by this firm and are also available online.  The numbers used in these formulas include the monthly gross incomes of each parent, the number of overnights each parent spends with the children, daycare, and health insurance expenses for the child paid by each parent.  Other “extraordinary” expenses of the child can be factored into the calculation and if one parent pays maintenance to the other parent, that amount is factored into the child support calculation as well.

Other expenses of the parents, such as mortgage, rent, utilities, car payments and food are NOT factored into the child support calculation.

If the court finds that one parent is earning less than he or she should be earning based on that parent’s abilities, education, and employment history, the court might impute an income to that parent for child support purposes that is higher than the income they are actually earning.  Income cannot be imputed to a parent, however, who is the primary custodian of a child under 30 months of age.

Child Support Collection

Once the court enters a child support order, the parents may agree, or the court may order, that an Income Assignment be initiated against the parent paying child support. This means the monthly child support is automatically deducted from the parent’s paycheck and sent to the parent receiving the support..

When one parent does not pay their court-ordered child support, that parent may be found in contempt of court.  If a parent is found in contempt of court for not paying child support, he or she may be fined, jailed and ordered to pay the other parent’s attorney’s fees for having to pursue the contempt.  One parent may also seek a judgment against the non-paying parent and put a lien on the non-paying parent’s assets and/or garnish his or her bank accounts for child support arrears. 

A parent may also seek help establishing, modifying or collecting child support through a local governmental child support enforcement agency, which helps anyone who applies. While the agency will assist you, it does not legally represent you, as no attorney-client relationship is established between you and the agency.  However, child support enforcement agencies can utilize unique collection remedies not available to attorneys or private individuals, including suspending a delinquent parent’s driver’s license, intercepting tax refunds and reporting delinquency to credit reporting agencies.

Other expenses of the parents, such as mortgage, rent, utilities, car payments and food are NOT factored into the child support calculation.

If the court finds that one parent is earning less than he or she should be earning based on that parent’s abilities, education, and employment history, the court might impute an income to that parent for child support purposes that is higher than the income they are actually earning.  Income cannot be imputed to a parent, however, who is the primary custodian of a child under 30 months of age.

Child Support Collection

Once the court enters a child support order, the parents may agree, or the court may order, that an Income Assignment be initiated against the parent paying child support. This means the monthly child support is automatically deducted from the parent’s paycheck and sent to the parent receiving the support.

When one parent does not pay their court-ordered child support, that parent may be found in contempt of court.  If a parent is found in contempt of court for not paying child support, he or she may be fined, jailed and ordered to pay the other parent’s attorney’s fees for having to pursue the contempt.  One parent may also seek a judgment against the non-paying parent and put a lien on the non-paying parent’s assets and/or garnish his or her bank accounts for child support arrears. 

A parent may also seek help establishing, modifying or collecting child support through a local governmental child support enforcement agency, which helps anyone who applies. While the agency will assist you, it does not legally represent you, as no attorney-client relationship is established between you and the agency.  However, child support enforcement agencies can utilize unique collection remedies not available to attorneys or private individuals, including suspending a delinquent parent’s driver’s license, intercepting tax refunds and reporting delinquency to credit reporting agencies.

If the parents cannot agree on how to allocate parenting responsibilities or parenting time, the court will make the determination based on the best interest of the child and take into consideration a number of other factors as well.

The courts are beginning to hold more consistently that it is in the child’s best interest to have both parents in his or her life as much as possible, and equal parenting time is becoming more and more popular among judges.  With this newer trend, courts have been more willing to consider the father’s residence as the child’s primary residence, and have granting both parents as much time with the child as fair and possible.

Mediation

The most cost effective and time efficient method for resolving issues in a divorce is through mediation, which involves hiring a neutral third party who helps both sides facilitate a settlement outside of Court.  Parties may attend mediation with or without an attorney, and must pay for mediator’s time.  Simon Law Group offers a limited representation model to educate clients about the law, the mediation process, and the Court process, in order to prepare for mediation.  We strongly encourage anyone going through this process to have this preparation session at a minimum.

The mediation process focuses on providing parties with tools to reach rational and cooperative resolutions to their problems.  The main issues that parties need to resolve in a divorce are the division of assets and debts, maintenance and child support issues, and allocation of parental responsibilities (decision-making authority and parenting time).

Mediation provides an opportunity to divorcing spouses to work constructively and amicably to settle all matters between themselves instead of leaving it up to a court.  Many courts routinely require divorcing parties to participate in mediation before turning to the Court to make decisions for them.  At the Simon Law Group, almost every case will go to mediation, as it is very much a part of the process in each case.

Mediation is not appropriate for everyone, however it is likely to be effective if both parties recognize the importance of cultivating a cooperative post-divorce relationship and want to reach a fair agreement.  Parents will be required to work together until their children are emancipated or of age, and mediation is a great start.

Domestic Violence & Protection Orders

A person can obtain a protection order from the county court in the county in which he or she lives, and if there is a divorce or civil dissolution pending, in the court that is hearing the proceeding.  A protection order will require the abusive person to make no contact with the victim, staying 100 feet away at all times.

The court, on an ex parte basis, meaning the other party does not have to be notified or present in court when the temporary order is issued, can issue a temporary restraining order if it finds that an imminent danger exists.  The court can then issue a permanent restraining order if the other person has been served with the temporary restraining order and has notice that it may be made permanent.  At the permanent restraining order hearing, the court does not have to make an imminent danger determination.  It must, however, find that the restrained person has committed an act requiring the issuance of a protection order, and that if the order is not made permanent the restrained person will continue to commit such acts.

A person against whom a restraining order has been issued faces a number of consequences, including a possible removal from their family home and the required relinquishment of firearms, as well as influencing parenting time and responsibility allocations.  It is always best to walk away.

Domestic abuse now includes physical violence and threats of violence, including sexual assault, as well as mental and emotional abuse, including stalking and various means of control that make the victim fearful of retaliation if they stand up for themselves or leave.  This broadened definition includes cases where one party limits the other’s access to documents, licenses, or monies essential and necessary for that spouse to live independently from the abusive spouse.

Other Parties Who May Be Involved

Child and Family Investigator

A Child and Family Investigator (“CFI”) can be either a licensed mental health professional or an attorney who becomes a neutral third party to the court when a parenting time dispute needs resolution.  The CFI becomes involved in a case to perform an evaluation of the family dynamics, and may interview the parents, the child, or people in the child’s “network,” and will observe the child’s interactions with each parent. The CFI will then prepare a written report regarding any disputed issues and the CFI’s recommendations regarding parental responsibility and parenting time.  The CFI will submit the report to the parents and to the court, who often will follow the CFI’s recommendations.

A CFI is capped at charging $2,000 for the investigation and report, and $500 for witness fees  absent a court order approving more expenses.  As a result, CFI reports are not as in-depth as some families need, and are not appropriate when certain issues are present, such as mental health disorders, special needs children, substance abuse issues, or relocation.

Parental Responsibilities Evaluator

A Parental Responsibilities Evaluator (“PRE”) is similar to a CFI, but is always a licensed mental health professional who does a more in-depth report for more complex matters, generally requiring a mental health professional.  The PRE conducts an investigation of the family dynamics, and usually will do psychological testing on the parents.  The PRE will prepare an in-depth report of his or her findings regarding allocation of parental responsibility and parenting time and submit the report to the parents and the court.  The parent requesting the PRE will often pay the initial fee, but may ask the court to apportion the cost at a later date.  The cost of a PRE can range from $4,000 to $8,000 or higher. 

Special Master or Statutory Judge

Under Colorado statute, if a hearing date has not been fixed by the court within 91 days from the date the case is at issue, upon agreement of both parties, the parties may elect to have their matter heard by a Special Master or statutory judge, appointed by the court. When the hearing is held before a Special Master or statutory judge, the parties shall pay the cost of the hearing, as allocated fairly among the parties by the Special Master. The Special Master or statutory judge will have all the powers of a judge.

The reason parties may choose to pay a Special Master or statutory judge to resolve their case rather than having a judge do it for “free” is because the court system can be extremely overloaded and slow. Court dates can get continued multiple times and parties can spend a great deal of money on attorneys’ fees between the time their issues arise and their final court date. Using a Special Master or statutory judge is much quicker, and, arguably, less expensive. Some Special Masters or statutory judges work on a pro-bono basis if the parties qualify financially, but typically a Special Master or statutory judge may charge anywhere from $150 to $400 per hour.

Parenting Coordinator

A Parenting Coordinator is a neutral third party who may or may not be a mental health professional who helps the parents usually after parental responsibilities and parental time have been decided.  He or she will work as a buffer between parents who have trouble dealing with one another, or cannot agree on basic parenting issues.  The parties may agree on using a Parenting Coordinator, who may cost from $75 to $200 per hour, or the court may order the parents to use one.  The parents will usually split the cost of the Coordinator in proportionate to their incomes.

Decision Maker

A Decision Maker is a person, usually an attorney, who is appointed to a case upon the agreement of the parties.  This person is authorized to issue awards, which are then filed with the court and made orders, which can resolve disputes between parties.  The Decision Maker’s authority is limited to resolving disputes between parties as to implementation or clarification of existing orders in a manner that is consistent with the substantive intent of the current court orders.