The Substantive Law

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Most of us, when they think about “law”, focus on the substance of what we want the Orders to be.  For example, when you want a divorce, then additionally most people want to have issues of prop­erty asset/obligation distribution, spousal maintenance, and perhaps child-related matters (alloca­tion of parental responsibilities & child support) resolved.  They have to properly request the Court for these “remedies” to their problem, to ask the Court for this legal “relief” or for these “Orders.

These Orders may be obtained through a contested trial or other Court hearing, or by settlement.  The following discussion summarizes some, but definitely not all, of the more important substantive laws and legal rights that are within the field of Family Law.

**Before proceeding, please refer to the section entitled “What DIY resources are available for you?” under the “Doing It Yourself” Tab.

Common-Law vs. Formal Ceremony.  If you get a marriage license, and are married by a Judge or Pastor, or other person licensed in Colorado to perform marital ceremonies, you’ve a formal marriage.  Colorado is one of 9 states, plus the District of Columbia, that recognizes common law marriages.  Parties in Colorado, who are able to marry by ceremony (not prohibited by a prior mar­riage, not blood relations, etc.) enter into a common law marriage by informal ceremony, by signing a written Declaration to be on health insurance, filing joint married tax returns, or by holding them­selves out to the world as being married.  It is really quite easy, but the consequences are enor­mous.  One common misconception is that, if parties just live together for a year or so, they are automatically common-law married: not true, they can live together forever without becoming mar­ried, so long as they do none-of-the-above and, when asked if they are married or it is assumed by a friend, relative or stranger, state, “no, we are just living together” or words to that effect that deny the marriage, so that you are not holding yourself out as being a married couple.  It is presently un­known whether Colorado will recognize Common Law Civil Unions, but it is probable.  Once you are married, by common law or ceremony, a dissolution of that relationship is required.

Changing Your Marital or Civil Union Status: Generally, when you have married or have entered into a civil union, by ceremony or by common law, you must obtain a legal Order or Decree of Dis­solution of that relationship.  There is no such thing as a “common law divorce” once you have married by common law, and you must go through the same procedure as if you were formally married in church!

  • Annulment or Declaration of Invalidity happens if you remarried by common law or ceremony be­fore you got a divorce from another spouse, and in certain other limited circumstances within the time you must act.

  • Otherwise, a Dissolution of Marriage occurs when one or both of the par­ties to formally declare, in writing in the initial pleading with the Court, that it is over, that it is irretrievably broken.  The other party may oppose that statement, but usually the Court will enter the Decree of Dissolution.

  • A Legal Separation leaves the parties married, but “legally separated,” with all of the underlying Or­ders that are important to you, and may be converted to a divorce by either party after the passage of 6 months.

  • Civil Unions were recognized in Colorado in 2013.  That statute awards both same-sex and heterosex­ual partners many of the same legal rights of heterosexual couples who are married, by a formal license and ceremony.  Civil Unions are dissolved in the same manner as a marriage,

Property & Spousal Maintenance: if you get an Annulment, a Dissolution of Marriage, a Legal Separation, or Dissolution of Civil Union, all you are doing is changing your legal status back to “single” or to “legally separated.”  Most of us are more concerned with whether we can attain our goals regarding property rights, obligations for debts, and spousal maintenance, etc.  These, and child issues (discussed below), are the legal relief that we are can really disagree about with “the other” and end up going to Court about:

  • The statute or law pertaining to Marital Property in Colorado is found at C.R.S. 14-10-113, as amended.  The parties’ property assets must first be classified as being separate property, marital property, or “mixed property” (e.g. the same thing can be both separate and marital in value), and given values (not what you bought them for, but current “as-is” values).  Those assets that are sepa­rate property are confirmed to the party who already owns them.  Marital property, which is generally al­most everything that one or both parties acquired during their marriage or civil union, is then di­vided or distributed between the parties in a “fair” (but not necessarily “equal”) manner, after consid­ering sev­eral important circumstances.  This process of classification/valuation/distribution is re­quired for intangible personal property, such as retire­ment funds and other financial accounts, for tangible personal property, such as a car or TV, and for inter­ests in real estate.

  • The classification/valuation/distribution Marital Obligations of the parties is also addressed in C.R.S. 14-10-113, as amended.  Debts must also be classified, and marital debts (incurred by either or both parties), both secured debts (such as by a car or house) and unsecured debts (credit cards, doctors, etc.), must be fairly divided (again, not necessarily 50/50), so that both parties know who is to pay it.  Generally, these obligations to the other spouse may not be discharged by bank­ruptcy.

  • The law regarding spousal maintenance, which was once called “alimony,” is contained in C.R.S. 14-10-114, as amended.  Under the old-law, it is presumed to be required under certain circum­stances: this law was completely amended in 2013, which revisions are only to be used in legal ac­tions filed on or after January 1, 2014; the legal standards applied in cases filed before January 1, 2014 are very different, and you must determine whether the old or new spousal maintenance stat­ute applies to your Domestic & Family Law action.

  • Spousal maintenance may start to become due and payable very early in the divorce pro­ceeding.  Temporary Spousal Maintenance usually continues at least until the Final Decree is entered, when it may be forever terminated, or con­tinued for a certain unmodifiable period of time, or contin­ued for an indefinite time and subject to future modification, or reserved for a later determination.  It may be paid monthly, or in one lump sum.

  • The effect of these spousal maintenance laws, your various options, and what your Orders will actu­ally provide, may be extremely important to your future.  For example, a Separation Agreement that provides for spousal maintenance to be paid until the party receiving it remarries or dies, and also contains a provision that the Agreement cannot be modified unless both parties agree, may re­sult in the other party being obligated to pay the ordered amount for the rest of his life, even though the former spouse receiving the maintenance is living with Bill Gates Grandson!

  • Tax consequences may arise, particularly if spousal maintenance is or­dered paid, or if some of the re­tirement bene­fits of one party are awarded to the other, and a CPA may need to be consulted.  However, generally, a party is not taxed when property is divided in a divorce, but is taxed when in­come is received (such as spousal maintenance) or paid (interest from investments).

  • Pre-Marital Agreements, Antenuptial Agreements and/or Post-Nuptial Agreements have been gov­erned by the Colorado Marital Agreement Act, (§§ 14-2-301 – 14-2-310).  However, as of July 1, 2014, the Uniform Premarital & Marital Agreements Act (§§ 14-2-301 – 14-2-313) will replace it.  These contractual agreements may, if properly pre­pared and mutually signed, either prior to entering into the civil union or marriage, and sometimes afterwards, resolve in advance what the Court can Order regarding spousal maintenance, rights to property assets, duties to pay obligations, and what each spouse can inherit.  Issues concerning children are customarily excluded from these agree­ments, as the State is Parens Patriae, or the Ultimate Parent of all children, and parents cannot contractually change there obligations, duties and rights concerns them, particularly in advance of a dissolution of the underlying relationship .

Child Issues Between Parents: whether you are married or single, the creation of a baby, whether planned or a great sur­prise, may generate complex Child Custody, Visitation and Child Support issues.  These laws really need to be understood before you decide what Orders you want the Court to make:

  • If paternity is questioned, for any reason, then genetic testing may be required, which usually re­solves that issue.  Testing may be required by the Department of Human Services through a pri­vate lab, or a party to the litigation may ask the Court to Order that it occur.  The best time to have this testing done and paternity established is before the first child support order is entered.  Addi­tionally, just because the man who has parented the child is not the biological father, he may still have parental rights, if he requests such Orders within the time allowed by the law.

  • What was once called Child Custody and Visitation are now referred to together as “Allocation of Pa­ren­tal Re­sponsibili­ties.”

  • And Parental Responsibilities or Parental Rights are composed of Decision-Making and Parent­ing

  • Time, as well as a number of requirements for behavior towards the other parent and/or the child.

  • Decision-Making (formerly Sole Custody or Joint Custody, but now much more) and Parenting Time (formerly Visitation, but also now much more), must be determined in each child’s best inter­ests.  Usually, day-to-day or minor decisions are made by the parent having the child at the time they are made, while major decisions are made by the parent or parents who have that right.

  • These best interests determinations are made upon considera­tion of a number of factors, not merely upon the wishes of a parent or the child.  These factors closely parallel the findings of psy­chologists regarding what kinds of parenting and environment children need to develop into healthy productive adults.  In making these decisions, the child’s needs are the Court’s paramount con­sideration, and the law gives the Court the authority to protect the child while fostering the child’s relationship with each parent.  The law is “gender-blind!”

  • Child Support consists of the monthly amount due by one parent to the other, the determination of who will provide and pay the health insur­ance premium, how uninsured medical related expenses are to be paid, who can claim the child on taxes, etc.  This is all determined in accordance with rules and guidelines set forth in the law, and the presumed amount is ordered unless there are extraordi­nary reasons to the contrary.  The Department of Human Services may become involved in these issues as well.

Additional Child Issues: in addition to a child’s parents, stepparents, relatives and sometimes even unrelated adults may, in limited circumstances, have the right to seek an allocation of paren­tal responsibilities concerning a child, including an order that child support be paid to them by the parents:

  • This may occur when the child has developed a significant relationship with a non-parent adult, who has become the child’s “psychological parent”, when the child is living with that adult and not with either parent, or when the child has lived with that non-parent adult (and perhaps the child’s parent as well) for more than 6 months and the legal action is filed with the Court less than 6 months before the child ceased living with that non-parent adult.

  • However, the “rules” for this unusual kind of order have recently become very strict.  If this kind of legal order cannot be obtained, then another option, available under certain conditions just to biological grandparents, is a legal action for grandparent visitation.

  • Our society is changing, and changing rapidly.  Alcohol abuse, abuse of both soft-drugs and hard-drugs, domestic violence, child abuse (physical, emotional, sexual), these issues and more are all encom­passed modern within Family Law, and are frequently considered by Magistrates and Judges when entering Orders concerning children.
  • Lastly, the Department of Human Services could file a Dependency and Neglect action concerning a child, under some circumstances when the child has been abandoned, injured, neglected, exposed to dangerous environments, etc., in which case the Department may consider placement of the child with a relative.

Other Remedies: There are other legal remedies that may be available in these Family Law cases, depending upon other circumstances:

  • Protection Orders (formerly called “Restraining Or­ders”) may be necessary in situations of Domes­tic Violence and Child Abuse.  These may be granted against parents or non-parents, such as past or present lovers, stepparents or other persons.  If sought and obtained successfully, these Orders protect a party and/or child from the other, and may result in the immediate enforcement by police.

  • Additionally, the Colorado Legislature recently required that Judges and Magistrates to carefully con­sider issues of Child Abuse and Domestic Violence, and gave the Court additional powers to con­sider limitations upon a parent’s rights to the child.

  • When a child is taken to another state or country, or such removal is threatened, and if Colorado has “initial jurisdiction” over the case, the Uniform Child Custody and Jurisdiction Act, the Uniform Child Abduction Prevention Act, and the international treaty known as the Hague Convention, may come into effect, as well as criminal laws regarding kidnap and/or interference with parental rights.

  • The difference between your actually obtaining an Order of the Court, as opposed to merely having an agreement, even if in writing and signed, is that the Court may enforce that Order if it is violated, by actions for contempt, for enforcement of Orders, garnishment, attachment, assignment and even referral to law enforcement for investigation of possible criminal charges.

  • Hence, when a parent or other person interferes with Court Ordered parenting time or “custody”, criminal laws, similar to felony kidnap, may come into play
  • Under certain circumstances, a child may be adopted, even when the parent or parents, whose rights are about to be terminated, objects.

  • In a contested “custody battle,” a mental-health expert may ordered to conduct a custody evaluation (now called a “parental responsibilities evaluation,” or a trained person may do a “child and family in­vestigation.”  They then file a report with the Court, containing the findings and recommendations, which is then considered by the Judge or Magistrate before entering Orders.

  • Lastly, under most actions, a party may seek, but is not always granted, an award of her or his reason­able attorney’s fees and costs incurred in the litigation.

Modifications of Orders: oftentimes, situations simply change, or circum­stances arise that were not originally anticipated, and this requires modifications of the Orders.  There are particular re­quirements for each kind of modification, whether your goal is to change spousal maintenance, distribution of property assets or debts, or regarding allocation of parental responsibilities and child support:

  • The Court must keep or retain jurisdiction, which is the power to modify spousal maintenance, which could be prevented by the Final Order or the prior agreement of the parties.

  • It is difficult to modify right to property assets or distribution of debts.  Colorado law requires that each party, in a case where assets and/or obligations are an issue, has a fiduciary duty of complete disclosure to the other party of all their assets and obligations, and the failure to comply with this re­quirement could allow the wronged party up to five years to seek a modification!

  • All Orders pertaining to children (decision-making, parenting time, behavioral rules, child support, etc.) can be modified, but, again, only if certain conditions are met: for example, under a 50/50 par­enting time plan, the same “best interests” factors are again considered; but if it is a 55/45 time split, then the parent with 45% would have to prove either the other parent’s consent, the child’s integra­tion into the 45%’s home, or that the child is endangered.

  • Motions for geographic relocations to a residence in a distant location have other standards and requirements.

  • The Colorado Courts never loses its jurisdiction to re-examine these issues, even if both parties move to another state, until that other state properly assumes jurisdiction over the parties, child and case.  The same thing happens when one or both move to Colorado, and the former state that entered the Orders continues to have jurisdiction to modify them until the change to a Colorado Court is properly accomplished.

Summary of Substantive Law:  This concludes the review of most, but not nearly all, of the Sub­stantive Law issues and remedies that may be involved in your partic­ular Domestic and Family Law situation.  Family, Domestic, or Matrimonial Law, by whatever name it is called, is intended to be fair or equitable to­wards the parties and particularly their children.  Certain things are not allowed to be considered when entering an Order.  For example, “marital fault” (emotional cruelty, adultery, violence, etc.) is not required for a divorce, and is not considered when dividing property assets or debts, or order­ing spousal maintenance in Colorado, or child support.  The only time that it may be considered is when entering Orders for Allocation of Parental Responsibilities, and then only cer­tain kinds of “fault” are relevant.  Colorado is known as a “no fault state” when it comes to this area of law.