Colorado Divorce Law: Reasonable Person Standard?

The reasonable person standard is a legal concept that determines whether a person's actions or behaviour meet the level of prudence that a reasonable person would exhibit in the same situation. In the context of divorce law, it is essential to understand how Colorado's legal system approaches marriage termination and the distribution of assets. Colorado is a no-fault state, meaning that the only ground for dissolving a marriage is the assertion that the relationship is irretrievably broken. This assertion is typically enough for a judge to grant a divorce. The state also follows equitable distribution, which means that during a divorce, the court divides property in a way that seems fair to both parties, but not necessarily equal.

Residency requirements

To file for divorce in Colorado, either spouse must have been a resident of Colorado for at least 91 days immediately before filing for divorce. This is a basic requirement for a Colorado court to dissolve a marriage.

The 91-day rule is applicable in cases of divorce, legal separation, or annulment. However, an annulment has its own separate jurisdictional requirements.

In addition to the 91-day residency requirement, at least 91 days must have passed since the summons was served to the other spouse. This means that a divorce decree can only be entered after 91 days have passed from the day the spouse was notified of the divorce proceedings.

Colorado must also have personal jurisdiction over the respondent spouse. This can be established if the spouse is a legal resident of Colorado, was personally served in Colorado, or consents to Colorado's jurisdiction.

If there are children involved, Colorado must have been their home state for at least 181 days.

Grounds for divorce

Colorado is a "no-fault" state, meaning that the consent of a spouse is not required to obtain a divorce, and the reasons for wanting a divorce are not considered when granting one. The only ground for divorce in Colorado is that the marriage is "irretrievably broken", meaning that the couple cannot get along and there is no reasonable chance of that changing.

To obtain a divorce in Colorado, one of the spouses must have lived in the state for at least 91 days before filing for divorce. If there are minor children involved, the children must have resided in Colorado for at least 182 days.

The process of filing for divorce in Colorado includes:

• Filing the initial petition for divorce.
• Serving the spouse with the divorce papers if the divorce is contested.
• Submitting proof of service to the court once the spouse has been served.
• Reviewing all documents received from the court, including information regarding parenting classes and the date for the initial status conference.
• Attending the initial status conference, which is usually held via phone or WebEx.
• Complying with all deadlines established by the court during the initial status conference, such as submitting proof of completion of the parenting class and a Sworn Financial Statement.
• Attending mediation for contested issues. If a settlement is reached, the mediator will prepare an agreement called a Memorandum of Understanding, which outlines the terms of the divorce.
• If a settlement is not reached at mediation, completing the remaining divorce forms, including the financial statement, separation agreement, decree, parenting plan, support order, child support worksheet, and pretrial statement.
• Attending the final divorce hearing if there is no agreement on economic issues related to the divorce, such as equitable distribution and spousal maintenance, or child custody and parenting time-related issues.
• Reviewing all support orders and the final decree from the court.

It is important to note that Colorado also offers "legal separation" as an alternative to divorce.

Alimony/spousal support

Alimony, also known as spousal support or spousal maintenance, is a payment made by the higher-earning spouse to the other to ensure they can continue to meet their basic needs during or after a divorce. In Colorado, spousal maintenance is always a consideration in every divorce, but it is up to the judge to decide whether to grant it.

The judge will determine whether either spouse is entitled to spousal maintenance under Colorado law. The rationale behind maintenance is to "level the playing field" between spouses, as often, one may have advanced their career while the other contributed to the marriage in other ways.

Factors Considered by the Court

When deciding whether to award spousal maintenance, the court will consider the following factors:

• The amount of each party's gross income
• The marital property apportioned to each party
• The financial resources of each party, including actual or potential income from separate or marital property
• Reasonable financial need established during the marriage
• Whether maintenance would be deductible for federal income tax purposes by the payor and taxable income to the recipient
• The lifestyle during the marriage
• The distribution of marital property
• Both spouses' income, employability, and any reduction in employment due to the needs of minor children of the marriage or other circumstances
• Whether one spouse has historically earned a higher or lower income
• The length of the marriage
• The amount of temporary maintenance and the number of months that temporary maintenance was paid
• The age and health of the parties, including consideration of significant healthcare needs
• Significant economic or non-economic contributions to the marriage or to the economic, educational, or occupational advancement of one of the spouses
• The tax effects of paying or getting maintenance and any adjustment that may be needed to make the tax burden fair between the parties
• Whether the circumstances call for awarding a minimal amount of maintenance to preserve the spouse's claim of maintenance in the future
• Any other factor the judge believes is relevant

Calculating Spousal Maintenance

Colorado has a spousal maintenance formula that applies to cases where the decree of dissolution was entered after January 1, 2014, and the parties' combined incomes are $240,000 per year or below. The formula is as follows: 40% of the parties' combined Adjusted Gross Incomes (AGI) minus the lower-income party's AGI.

However, this formula is not binding, and the court has the discretion to determine the award of maintenance that is fair and equitable to both parties based on the totality of the circumstances.

Duration of Spousal Maintenance

The duration of spousal maintenance is based on the length of the marriage. Marriages of three years or more are generally considered for maintenance, and the advisory term of maintenance increases with the duration of the marriage. For marriages between three and 20 years, the advisory term of maintenance is between 31% and 50% of the duration of the marriage. For marriages over 20 years, there is no set formula, but the court may award maintenance for a specified term of years or indefinitely.

Temporary vs. Permanent Spousal Maintenance

There are two types of spousal maintenance in Colorado: temporary maintenance, which is awarded while the divorce is pending, and permanent maintenance, which is awarded when the divorce is finalized. The duration or term of permanent spousal maintenance will be set by the court.

Modification and Termination of Spousal Maintenance

Spousal maintenance orders can be modified or terminated if one of the parties can demonstrate changed circumstances that are substantial and continuing, making the terms of the original order unfair. Unless otherwise agreed upon by the parties, spousal maintenance ends when either party dies, the end date noted in the spousal maintenance order is reached, the party receiving maintenance remarries or enters into a civil union, or a court enters an order terminating maintenance.

Child custody

In Colorado, the term "parental responsibility" is used in place of "custody", and "parenting time" is used instead of "physical custody". The state also divides residential responsibility from decision-making responsibility. Sole decision-making responsibility occurs when a parent can make all major decisions about the child's upbringing without consulting the other parent, whereas joint decision-making responsibility occurs when parents share this responsibility.

In Colorado, there is no set rule on who will automatically get custody of the children. There are, however, statutory factors that the court must consider when awarding any decision regarding minor children. If both parents share custody, child support is determined based on gross monthly income and other expenses, rather than on which parent has the majority of time with the child.

Colorado does not have joint custody or sole custody. If parents equally share overnight visitation with the minor child, they have joint parental responsibility. If a parent has fewer than 90 overnight visitations with the minor child, the other parent is considered to have primary parental responsibility.

Parents can agree on how to handle custody and visitation, and judges will generally approve these agreements as long as they appear to be in the child's best interests. If parents cannot agree, the judge will come up with a parenting plan based on what would be in the child's best interests. In decisions about parenting time, factors include:

• The child's preference, if they are mature enough to express a "reasoned and independent" opinion about which parent they want to live with.
• The child's interaction and interrelationship with parents, siblings, and anyone else who may significantly affect the child's best interests.
• The child's adjustment to home, school, and community.
• The mental and physical health of all individuals involved.
• Each parent's ability to encourage the child's relationship with the other parent.
• Whether the parents' past pattern of involvement with the child reflects their time commitment, mutual support, and a value system.
• How close the parents live to each other, and the practice effect on parenting time.
• Both parents' ability to place the child's needs ahead of their own.
• Any information provided to the court about domestic violence in the family.

In Colorado, judges are not allowed to be biased for one parent due to sex.

Division of marital assets and debts

Colorado is a marital property state, meaning that assets and debts acquired during marriage (the marital estate) should be divided equitably between the spouses upon divorce, legal separation, or annulment. This equitable division is based on fairness, not equality, and is influenced by several factors.

Firstly, the court considers each spouse's contribution to the acquisition of the property, including their role as a homemaker. The economic circumstances of each spouse at the time of the division are also evaluated, including the desirability of awarding the family home to the spouse caring for any children.

Secondly, the court takes into account any increases or decreases in the value of separate property during the marriage, as well as depletion of separate property for marital purposes. Separate property refers to assets owned by a spouse before marriage or acquired through gifts or inheritances during the marriage. It's important to note that appreciation on separate property is considered marital property.

Thirdly, the court evaluates the value of the property set aside to each spouse. In cases of commingling, where marital and separate property are mixed, the court may need to determine whether the original owner should be reimbursed or if the commingled property was a gift to the marriage.

Spouses can divide assets by assigning specific items to each spouse, making equalising payments if one spouse receives significantly more, or by selling property and dividing the proceeds. They may also continue to co-own property, although this requires ongoing cooperation.

In addition to the division of assets, the court also allocates marital debts, which are debts incurred by either spouse during the marriage, equitably between the spouses. This allocation may result in an equal division or one where the higher-income earner assumes greater responsibility.

Frequently asked questions