Frequently Asked Questions (FAQ)
Divorce is a legal process, through the court, that changes your status from married to single. You are divorced when the judge signs your Decree of Dissolution of Marriage. At that moment you are single and free to re-marry.
There are two major areas where agreement is needed (or the court will decide for you). The first is a separation agreement (everyone needs this) that summarizes your property and debt settlement. The second is a parenting plan, if you have minor children (under 19).
That depends on you as well as on the process you choose.
If you each have attorneys, and they speak to each other for you, and you need hearings in court, it could take a year or more, and will likely cost you thousands. In mediation, couples often reach agreement in 2-4 session, over 1-2 months. Regardless of what process you choose, the court does not have the power to sign a Decree of Dissolution of Marriage until at least 91 days (13 weeks) have passed since your first filing with the court.
A written separation agreement must set out your division of your assets between you, responsibility for debts, and either a maintenance (alimony) plan or waiver of maintenance. If there are children, the agreement must specify in some detail your parenting plan which includes both parental decision making and parenting time (other states refer to custody and visitation), and child support. Other important areas are health insurance, life insurance, and taxes.
The first step is to identify all the assets and determine which are marital and which are separate. “Marital property” refers to assets (money and things of value) acquired during the marriage, but not by gift or bequest (inheritance), regardless of how titled. Anything of value that one of you owned at the time of your marriage that still exists, is the separate property of the owner. The same is true for debts. You can relax these rules in mediation if you wish, and if you agree.
A divorce or legal separation agreement reaffirms who owns what separate property, and who owes which separate debts, and then states how you will allocate the marital property and debts between you. Law requires that the marital division be “equitable,” which means fair, and not necessarily equal. There are usually many different ways to divide marital property and debts equitably, and it's almost always helpful to consider several options.
You will need a written parenting plan to detail how you will manage your parental responsibilities from two households. The words "custody" and "visitation" are not in Colorado law. There are two aspects of parental responsibilities that you must address.
First, parental decision-making. This refers to major decisions about the children, such as their health and medical care, education, religion/ethics/spirituality, and anything affecting their general welfare. Will you make these decisions together, jointly, which requires a commitment to good communication, or give these decisions to one of you to make separately?
Second, parenting time. For most, this means creating a basic schedule over a week or two, where the children have parenting time with each parent. Then consider which holidays are important to you, and whether you want to have a holiday schedule that will override your basic schedule. If you live a long distance apart, parenting time may be limited to summer, winter break, spring break, and three-day weekends.
Yes, and they often are. Research shows that parents who mediate are far more likely to have long term family relationships with their children, than are parents who argue in court.
Parents are often motivated to resolve their divorce amicably, because they know that that it's best for their children that they not fight. It is helpful to parents to plan how they will make major decisions about the children, and make a parenting time plan that will will work for both children and parents. They also make a plan for how they will work together as caring, responsible parents to rear their children from two households, and stay aware of their children's progress and challenges.
The Colorado Child Support Guideline prescribes a calculation for basic food, clothing and shelter for children, based on parents' gross incomes and parenting times, measured in overnights.
A second part of supporting your children is their health insurance premium and how you will handle between you all the out-of-pocket health and medical expenses for the children that are not paid by insurance.
A third part of child support addresses how you will handle between you all extra expenses for the children which are beyond basic food, clothing, and shelter, items such as music lessons, sports fees and equipment, school pictures, camp, private school, car insurance, prom . . .
A fourth component is about college funds, which some parents address and some do not. There are a variety of ways in which you can deal with these things in an amicable way, and mediation is a good method for showing them to you.
Yes. Maintenance, also called alimony in the Tax Code, is a series of payment made by one spouse to the other (or a lump sum payment payment). Colorado has a Maintenance Guideline for marriage of 3-20 years, that is advisory in nature. You will need to show how the Guideline applies to your circumstances, and then decide whether you will follow it or do something else. If you choose to do something about maintenance that is different from what is advised, you will need to explain why.
Maintenance is usually the most contentious item in a divorce. Such a court agreement can be extremely painful and destructive, not to mention expensive. In mediation we examine whether there is a need for maintenance, and if so, whether there is enough money to fill all or part of that need, through an uneven property division, or through a (usually) monthly maintenance payment, or a combination of these. Some spouses need maintenance until income from a new career phases in, others to go to school in order to become self-supporting. There can be a variety of purposes for it. The length of the marriage and the lifestyle during their marriage are also factors to be considered.
10. What is the tax advantage of maintenance?
Maintenance offers the opportunity for money to change hands that is tax deductible for the one who pays it, and included in income for income tax purposes for the receiver. The benefit is that you are taking money out of a high tax bracket and re-inserting it into a lower one, thus saving taxes and freeing up needed funds. The court is interested in whether you can both go forth from your marriage in reasonable financial condition, under all your current circumstances.
Divorce and legal separation are nearly identical processes through the court: division of assets and debts, maintenance if any, and of course a parenting plan and child support if there are minor children. The final paper, signed by the court, is a decree that declares you either legally separated, or your marriage dissolved (ended). With a divorce decree, you immediately become separate taxpayers, your marriage is ended, and you are free to remarry. With a decree of legal separation, you immediately become separate taxpayers, but not free to remarry.
1) Some choose legal separation because they are still examining their relationship, they “want some space.” If they later decide to resume their full marriage, they can dismiss the legal separation case. On the other hand, if they find later that they want to divorce, they have only to “convert” the decree of legal separation to one for divorce, a simple motion to the court that may be filed at any time after 6 months from the original decree of legal separation.
2) A second reason for choosing legal separation has to do with health insurance. Usually a spouse can stay on the other spouse's health insurance while legally separated, but not if divorced. Because of the high cost of health insurance, many couples are choosing legal separation until other reasonable coverage can be found. There is no time limit for being legally separated.
3) Some religions do not allow for continued membership if there is a divorce. This is the third reason for couples choosing legal separation.
Yes. The 91 days (13 weeks) start immediately when you file a petition signed by both of you. The very soonest you can have your decree would be day 92. To do that you will need to complete your agreement and all your paperwork, and file it all with the court before that, and for some, set a date for a final hearing.
Not necessarily. After reviewing your papers, the court must make the findings (state on the record, “I hereby find . . . ”) that your settlement is fair to both of you, and the parenting plan is in the best interests of the children (if there are minor children). If the court cannot make those findings, or if your papers are inconsistent, jumbled, unreadable, the court can reject your agreement and send you back to the drawing board.
You may or may not need to come to mediation. Just know that even though you agree on everything, you still need to have your agreement put in writing, and for it to be consistent with all your other papers. It must be carefully and thoroughly thought through by both of you, and not leave anything out. If you wish, a mediator may write or rewrite your agreement, or portions of it, for you.
Yes, the mediator may provide the court forms, and assist you with completing them for the court, or do them for you, if you wish. Couples often fill them out together in the mediation session, so that they are consistent with the facts presented, as well as with the agreements you have reached.
Mediations where one or both spouses are out of state, or even out of the country are not unusual. Skype and conference call can both work for mediation. The parties must send around copies of every item that needs to be considered, so all can discuss and look at the same document at the same time.
Mostly together, but after a short session, 10-15 minutes, of meeting separately with each party. If things get difficult, or there is need to clarify separately, the mediator may “call a caucus,” which means meeting with you separately. This is usually a 5-15 minute one-on-one with one spouse while the other waits outside the room, followed by a similar meeting with the other spouse. Then all meet together again. Caucusing often enables couples to get through matters that would have been more difficult if attempted while together.
Occasionally there are situations where the parties choose never to be in the same room at the same time. They meet with the mediator separately, on different days. This offers a layer of protection from old arguments, and a measure of privacy for those who feel they need it.
Some couples come to mediation in search of what to do about their marital difficulties. Besides divorce and legal separation, some consider making a postnup, a marital agreement made after the marriage (in contrast to a pre-nuptial agreement which is made before). It is made in anticipation of continued marriage, not divorce, and can address very specific matters or very broad issues, or both. Many marital agreements are financial, about allocation of incomes, or defining “his, hers, and ours,” or committing or recommitting to a budget or other financial goals. Some have been about difficulties with gambling, alcohol, drugs. Others want to negotiate terms for living apart, to “get some space” and perhaps work on their relationship. Some want a very specific commitment to more and better communication.