Understanding the Colorado Divorce Process

Understanding the Colorado Divorce Process

By Carl O. Graham

court process

Most divorces in Colorado take about 6-9 months to complete, depending upon the issues involved, and especially upon whether they are contested or not. There is no one set of procedures that will apply to every case, since the necessary steps will depend upon the specific issues in your case.

Your attorney knows the law, and the process, so will be responsible for ensuring that the court’s requirements are followed, and for explaining what you need to do. This article is not a substitute for following that advice, nor a “how-to” guide for the divorce process (if you have an uncontested case, you can review the DIY Divorce Guide for that), but is a broad overview to help you know what to expect in your divorce or legal separation proceeding case (the processes are identical for each).

Court Order Required

The first thing you need to know is that without a court order nothing is legally binding. To address a few common issues:

How can I make my spouse move out of the house? Short answer is that you can’t, only a court can do so. One of the spouses may voluntarily move out to avoid a tense situation, but sometimes there are very good reasons for not wanting to leave, such as a fear of not seeing the children (if there are no parenting agreements), or of giving up the house (a bit of truth to that one).

Ultimately if both spouses refuse to leave, you would need to have a temporary orders hearing. Alternatively, there may be financial or other reasons why the spouses still stay in the same house - this firm has seen several cases where spouses continue living together during the divorce process, and while it’s permitted, even in an amicable case it tends to be stressful on all concerned.

My spouse is not paying me support. In theory, each spouse has the ability to access marital funds for the necessities of life, but in reality, there may be an imbalance in access to funds (one spouse may not be on the accounts, or only one spouse has an income). Though Colorado has guidelines for support and maintenance, they are not “self-executing” - and require a court order for them to be binding.

Most lawyers, including those at Graham.Law, will at least calculate your estimated support obligations or expectations, bearing in mind that until we have financial disclosures, there may be some guess work involved. But these are only estimates so you know what to expect in the long run. In the short run, you may need to borrow funds (including paying on credit card) for the first 2-3 months of expenses, until you can even get into a temporary orders hearing.

My spouse drained our bank accounts. What can I do? Tell your lawyer, so he/she knows to demand an accounting of the funds. While there is no immediate remedy, if the money is truly gone without good cause, the court may order an “offset” for dissipated funds.

I’m not allowed to see the kids. You will need a court order for parenting. In theory, each of you has the same right to the children, but in reality, one parent may work and the other does not, so the non-working parent can pick up the kids first from school. Or the kids are not yet in school. Either way, it is almost never going to be in the children’s best interests to have a “race to the schoolhouse” each day to see who gets the kids first. Trust your lawyer to obtain a proper parenting order in due course, even if you’re at the mercy of your spouse in the short run.

Petition for Dissolution of Marriage

The first step is to prepare the initial paperwork for filing with the Court.  Except for potential issues involving whether Colorado has jurisdiction over a spouse, there is no advantage or disadvantage to being the Petitioner (the party who files the initial pleadings) or the Respondent. Or to filing jointly as Co-Petitioners. A judge will not look less favorably on a spouse who started the divorce, nor vice versa - it only matters for how the caption is written on the pleading.

Most firms will prepare the initial pleadings fairly quickly after being retained - at Graham.Law, we typically have everything ready for your review & signature within a business day. And there is no need for you to come in and sign - courts will accept copies, or decent-quality scans. And as of January 2018, there is no longer a requirement to notarize any court documents - they can be self-verified.

Once the initial pleadings are filed, the other spouse must be served with the paperwork, or sign a waiver of service - that starts a formal 91-day clock before the court may issue a decree of dissolution. But as indicated, most cases take substantially longer than that anyway - it is a rare case, in which both spouses are cooperating perfectly, where all disclosures have been done and agreements signed, and we are just waiting on day 91 for the court to issue the decree.

Missing Spouse & Service by Publication

If your spouse cannot be located, don't worry. It will cost more, but lawyers work with investigators who are skilled at finding the difficult-to-find spouses by reaching out to mutual acquaintances, a skip trace, etc.

If ultimately your spouse cannot be found, You can effect service by publication. It is far from an ideal solution - the process is more complicated, expensive and time-consuming. And at the end, the court would not have personal jurisdiction over the other spouse, so could not enter any orders for maintenance, support, allocate debts, or divide property located outside of Colorado. But at least you end up with a decree dissolving the marriage and, if there are children, allocating parental rights and responsibilities.

Because of its limitations, publication is truly the last resort, and is not a substitute for proper service of process.

Financial Disclosures

When the case first starts, each spouse must complete a sworn financial statement, and provide exhaustive financial disclosures. Your lawyer will let you know what you need to provide. These initial financial disclosures are mandatory in all cases, even if everything is agreed.  That's because even if the spouses submit a full agreement, the judge is still required to make a finding that the agreement is fair and not unconscionable, before accepting the agreement. C.R.S. 14-10-112.  And that necessarily requires a review of the couple's finances.

Initial Status Conference (ISC)

Within about 40 days of the petition for dissolution being filed, the court should conduct an Initial Status Conference to set out deadlines for disclosures, the appointment of experts, and set a date for a temporary orders hearing, if necessary. The ISC typically lasts about 10 minutes, and the spouses will have minimal speaking roles, if any (may be asked 1-2 yes/no questions).

In El Paso County, the ISC will be conducted in front of a domestic court facilitator, not a magistrate or judge. The facilitator is an employee of the court, empowered with setting deadlines, but has no authority to issue any substantive orders.

If both spouses have counsel, they may submit a Stipulated Case Management Plan in which they agree to their own deadlines (we’ve done this enough that we know what deadlines the court would set, so we go ahead and adopt them ourselves). This will obviate the need for anyone to take time out and show up for court. However, if one spouse has no counsel, the ISC is mandatory and cannot be waived with a stipulation.

Discovery

In some cases, a spouse may need additional disclosures or information, such as if there is a suspicion that an asset may have disappeared, there are questions about where debts came from, or there is a need to look at a spouse's educational or employment history to determine an appropriate income to impute.  Consult with your attorney if you think you need more, but here are the additional disclosures one can insist on:

  • Interrogatories. As the name implies, these are questions the other party can be required to answer.  Pursuant to C.R.C.P. 33 and 16.2(f)(3), a party can serve Pattern Interrogatories and up to 10 additional interrogatories
  • Requests for Production of Documents. Usually served at the same time as Interrogatories, these are requests for additional documentation, such as several years of credit card statements or pay stubs, medical records, etc.  Pursuant to C.R.C.P. 34 and 16.2(f)(3), a party can serve the Pattern Requests, and up to 10 additional requests.
  • Inspection.  An inspection is typically used to gain access to a residence for appraisal purposes, or to inventory personal property. C.R.C.P. 34. This is not as common as interrogatories or requests for production.
  • Physical and Mental Examination of Person. Not that commonly used in dissolution cases, it may be useful to get a second opinion, e.g. if a spouse claimed an inability to work. C.R.C.P. 35.
  • Request for Admissions. Not a discovery tool so much as it is a litigation tactic - one party asks the other to admit or deny that certain facts are true to help narrow the issues for trial. C.R.C.P. 36.

Absent agreement, discovery requests cannot be tendered until after the Initial Status Conference has been held. And from a purely practical perspective, you usually wait until you see the other spouse’s financial disclosures before deciding what additional information you need.

Temporary Orders Hearing

Remember those questions above re: moving out of the house, not receiving support, or not seeing the children? If the spouses cannot reach agreements on any pressing issues, and do not want to wait for the full contested final orders hearing for resolution, the remedy is a temporary orders hearing where the court will issue temporary orders that have effect only until the divorce is final.

In El Paso County, a temporary orders hearing is typically set about a month after the Initial Status Conference. Absent an emergency which could cause irreparable harm to the children (and simply not seeing them is not usually considered an emergency), until that hearing is held the parties will have to resolve their disputes by themselves or through counsel.

A temporary orders hearing is brief, lasting about 1 hour, which means each side has about 25 minutes, with time for the court’s ruling. That is not much time for direct examination of our own client and cross examination of the other, so there is rarely time for any other witnesses at this stage.

Permanent Orders Hearing

Also known as the “Final Orders Hearing”, the Permanent Orders hearing is the last step of a case, typically held about 6-9 months after the case began.

If your case is uncontested, but there are children and one spouse does not have a lawyer, you will be required to have a brief (usually about 10 minutes) uncontested permanent orders hearing in front of a magistrate where the court will review the agreements with both spouses, who testify under oath as to the agreements. An uncontested permanent orders hearing is typically held about 6 months after the case begins.

If your case is contested, you will typically have a half-day contested permanent orders hearing where the spouses have more time to actually put on their case, with time for other witnesses, a parenting expert, etc. Mind you, a half day means 3 - 3 ½ hours, which will still be tight if you have more than one other witness. A full-day hearing may be available, but they require both counsel to agree to one, and even then, the judge may call the attorneys in for a status conference to explain why more time is needed. A contested half-day permanent orders hearing is typically held about 9 months after the case begins, although a full-day hearing may take up to a year.

Note that Colorado family law proceedings are bench trials only - issues are decided by judges or magistrates, not by juries.

Settlement Meetings

The courts subscribe to the maxim that “jaw, jaw is better than war, war.” Colorado emphasizes settlement over litigation, so before the spouses are allowed to take up time on the crowded docket, they will be required to meet and discuss the case to try to resolve the issues themselves, outside of a courtroom. The same caveat applies here as with court proceedings - some of these may not apply to cases where issues are resolved quickly.

Settlement Conference.  Often referred to as a "4-way", this is a meeting (usually face-to-face, but sometimes telephonic) between both clients and their lawyers which is required before any contested hearing can be conducted.  temporary orders hearing will be conducted. The purpose is to get people talking, in an attempt to resolve the issues and avoid the need for a hearing. Usually the conference will take place after the exchange of financial information.

Mediation. Before a contested final orders hearing, the spouses will be required to attend mediation. This is a 2-3 hour session, ideally at least a month or so before the hearing date, but after any expert reports have been issued, where a neutral mediator is tasked with trying to reach agreements. The attorneys will usually agree on a mediator, but if they cannot, then the fallback will be the Court’s Office of Dispute Resolution. The spouses are in separate rooms with their lawyers, and the mediator goes back and forth between the rooms bringing proposals and suggestions in an attempt to resolve differences. Although required, mediation is not binding, and no one can make a spouse agree. But if the spouses do reach agreements, they typically will sign a Memorandum of Understanding at the mediation containing the basic elements of the agreement, and their attorneys will later prepare more comprehensive agreements.

Pretrial Meeting.  Before a contested final orders hearing, another meeting is required to discuss the issues in contention, try to reach agreements, and frame the issues for the Court.

Informal Negotiations. In addition to these formal meetings, the attorneys will typically communicate numerous times during the process vis telephone or email to discuss issues, propose solutions, etc. Additionally, if the spouses are getting along well, there is usually nothing stopping them from talking directly to each other to settle issues.

Do You Need a Divorce Lawyer in Colorado Springs?

The family law attorneys at Graham.Law have years of experience helping clients through the Colorado legal system. We know Colorado family laws, inside and out, from divorce to legal separation, from annulments to military divorce issues. For more information about our El Paso County family law firm, click on:

Colorado family law is all we do. Period.

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Divorce