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Q: My ex-husband is trying to modify the amount of child support he
pays because he quit his job. Will the Court reduce the amount of child support he was ordered to pay because he is voluntarily unemployed?
A: If the Court finds that your ex-husband is voluntarily unemployed, the Judge may impute, or assign, an income to him for purposes of determining the amount of child support to be paid.
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Please feel free to browse previous Questions of the Week below:
Divorce
What exactly are temporary orders in a divorce proceeding?
How do I initiate divorce proceedings when my wife serving in the
military overseas?
My husband left me and our 3 children last year. Can I divorce him for abandonment?
What is an "Initial Status Conference"?
Will I have to attend a hearing or several hearings when I divorce?
Is it necessary to serve my spouse with divorce papers after I file?
Is it possible to continue my coverage on my wife's health insurance after we divorce?
What forms are required in order to obtain a divorce?
How long is a legal separation valid?
How long will our divorce take?
My husband of 4 years left me and I don't know where he is. Can I divorce him without having his current address?
Instead of going back to my maiden name, can I create an entirely new last name after my divorce?
Can I ask my spouse to pay for the divorce?
Is it to my advantage to have my wife file for divorce since she is the one who wants to end our marriage?
Maintenance
What is temporary maintenance?
Can I receive alimony when I divorce my husband of 20 years?
Division of Assets
Is my former fiancé legally obligated to return the diamond engagement ring to me now that she has refused to marry me?
My husband has been very secretive regarding our finances throughout our 10 year marriage, and he owns several businesses. Will I need to hire a private investigator to determine our net worth?
After I file for divorce, can I withdraw $30,000 from my personal 401(k) so I can move out?
Am I within my rights to ask my wife to leave our home, after we file
for divorce? The house is in my name.
The house and both of our cars are titled in my husband's name. Is it true that I have no right to these assets?
During our marriage, and even after we separated, my wife ran up many thousands of dollars of credit card debt on our joint accounts. Am I responsible for half of her debt?
Children
When child support is modified, what date does the change become
effective?
Do I have to notify my former wife that I will no longer be paying child support when our son turns 19 next month?
Can my husband gain custody of our children just because I don't
have an income right now?
Can I adopt my son's newborn daughter if he relinquishes his
parental rights? The mother passed away a year ago.
What can I do about my ex-wife being consistently late for the parenting time exchange?
My ex wants me to give up my paternal rights to our daughter so her new husband can take over as the father. Can I still visit my child if I consent to this?
I just filed for divorce and I want to take my children to visit my parents in California. Can I do that as long as I come back to Colorado for the final hearing?
My ex wife no longer works because she is being supported by her new husband. Can I modify my child support payments to her now that she is voluntarily unemployed?
How do I prove that my wife has contributed to parental alienation?
How can I increase my Court ordered child support?
How long do I have to pay child support?
What is a "Child and Family Investigator" (CFI)?
For what reasons can I modify my child custody in Colorado?
What does child support cover?
Can child support be modified based on a former spouses' imputed income?
Paternity
How is paternity established in Colorado?
What are my rights as an unwed father in Colorado?
Does the Acknowledgment of Paternity form give the biological father
of my child custody or visitation rights?
Step Parent Adoption
What are the Legal Grounds for Step-Parent Adoption?
My wife of 3 years wants to adopt my daughter from a prior marriage. We have not heard from the biological mother in over a year and are unsure of her whereabouts. How do we proceed?
Grandparents Rights
Do Grandparents have the right to see their grandchildren even if
the parents will not allow visitation?
How do I initiate a Grandparents Rights case?
Miscellaneous
Can I garnish my former wife's wages to obtain arrearages on child support?
Can I change the date of the ISC? I will be traveling on business that day.
Do I need a marriage certificate to be legally married?
I have been living with my girlfriend for 3 years. Are we common law married?
I was served with a temporary protection order that says I have to move out of my house and cannot contact my wife or children. What is a temporary protection order, and how can I have it dismissed?
What's the difference between a contested hearing and a non-contested hearing?
Q: Can I change the date of the ISC? I will be traveling on business that day.
A: The Initial Status Conference is set by the Court, but they will generally allow you to reschedule. However, you may be required to obtain the other party's consent before the date can be changed. If you cannot change the hearing date, you can request that you be allowed to testify by telephone. If you hire an attorney, they can appear on your behalf, but the court will still want you to call in for the hearing.
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Q: Does the Acknowledgment of Paternity form give the biological father
of my child custody or visitation rights?
A: Although custody issues are determined by the Court, visitation terms can be arranged informally between the mother and the father.
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Q: My husband left me and our 3 children last year. Can I divorce him for abandonment?
A: Colorado is a no fault divorce state and no reasons are required for divorce other than the belief that the marriage is irretrievably broken.
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Q: What is an "Initial Status Conference"?
A: A: The initial status conference is often the first Court date in your divorce case. The Court meets with both spouses at the ISC to determine how the case is progressing and what issues need to be addressed. If there are issues on which you and your spouse cannot agree, the Court may order the parties to attend a mediation session and/or set the matter for a contested hearing.
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Q: Will I have to attend a hearing or several hearings when I divorce?
A: There will be at least one hearing. First there is an initial status
conference, where the court will ask you to describe your issues and
appoint any necessary experts. Generally, no substantive orders will be
issued at that time unless it is just to approve agreements that you
make with your husband. Then, you may have a Temporary Orders hearing,
where the Court will decide things like who pays what during the divorce
and how parenting time shall be divided until the Permanent Orders
hearing. Then, you will have a Permanent Orders hearing where the Court
will make the final decisions as to parenting time, division of assets
and debts, child support, maintenance and other issues. However, at any
time after the Initial Status Conference and completing the financial
disclosure process, you can submit a signed Separation Agreement and
Parenting Plan so that you do not have to attend any additional
hearings. It is virtually impossible to tell you when your hearing will
take place as much of that depends upon how long it takes you and your
husband to complete the disclosure process. However, the Court cannot
enter a decree of dissolution of marriage until after 90 days has
expired from the time of the filing of the Petition for Dissolution of
Marriage if you file as Co-Petitioners or from the time that you are
served.
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Q: During our marriage, and even after we separated, my wife ran up many thousands of dollars of credit card debt on our joint accounts. Am I responsible for half of her debt?
A: Courts will divide debts and assets on an equitable basis. Regarding the debt accumulated during the marriage, there remains a strong possibility that the Court will divide it equally, unless a strong case is presented that one person should be held responsible. Debt accumulated after you file for divorce is still considered marital debt; however, Courts often award the post-filing debt to the party that incurred it.
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Q: Is it necessary to serve my spouse with divorce papers after I file?
A: In order for the divorce to proceed, the opposing party must be put on notice of the proceeding. The Judge cannot enter orders until the party has been properly served.
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Q: Is it possible to continue my coverage on my wife's health insurance after we divorce?
A: Once you are divorced you can not be covered under your wife's health insurance. It is likely, however, that you would be eligible to continue your insurance coverage through COBRA for up to 3 years if you pay the premiums. In some cases where one of the parties has significant medical concerns, the parties often file for a legal separation to allow the spouse with health issues to remain on the other's health insurance.
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Q: What forms are required in order to obtain a divorce?
A: The forms necessary to obtain a divorce in Colorado include: Sworn Financial Statements, an Affidavit of Non-Appearance, Decree, Separation Agreement and Support Order (if there is maintenance). You are required to complete all of these forms and file them with the Court. Upon the expiration of 90 days from the date the Petition is filed, the Court can enter your decree.
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Q: How long is a legal separation valid?
A: Once the Court enters a decree of legal separation, it is effective for at least six months. After that period of time, either party can request that the legal separation be converted to a decree of dissolution of marriage even if the other party objects. If neither party requests a conversion, the legal separation will remain in effect indefinitely.
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Q: I was served with a temporary protection order that says I have to move out of my house and cannot contact my wife or children. What is a temporary protection order, and how can I have it dismissed?
A: Any party can go to Court and request a temporary protection order.
After the order is signed and the other party is served, a hearing takes
place in about 14 days. Both parties have the opportunity to present
their side at the hearing as to why or why not the protection order
should be made permanent. Provisions regarding the visitation with the
children remain in effect for 120 days, but other provisions may be
permanent. You can petition the court to have a permanent protective
order dismissed after 4 years have passed.
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Q: How long will our divorce take?
A: The minimum amount of time it takes to obtain a divorce in Colorado
is 90 days, but if there are child involved, they must live in this
state for at least 6 months before the Court will address the allocation
of parental responsibility.
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Q: How do I initiate a Grandparents Rights case?
A: In order to file an action for grandparent's rights, there generally
needs to be either an existing Court action open, such as a divorce or a
custody case, between the parents, or to allege that the child has been
in the grandparent's physical custody for at least 6 months.
If either or both of these situations are applicable, the grandparent
has the right to petition the Court to order visitation with the child.
Generally, speaking there are due process presumptions that a parent has
the right to determine the scope of grandparent visitation. To rebut
this, clear and convincing evidence must be submitted to the court that
shows that a visitation schedule with the grandparent is in the child's
best interest.
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Q: My husband of 4 years left me and I don't know where he is. Can I divorce him without having his current address?
A: In situations where a spouse cannot be located and thus cannot be
served with the divorce papers, it is still possible to obtain a
divorce. The process requires that you to provide notice through
"publication." The procedure entails placing an announcement in local
newspapers where the opposing party is likely to find them. If after a
certain period of time has lapsed the spouse does not respond to the
notification, the Judge can grant dissolution of marriage.
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Q: What are the Legal Grounds for Step-Parent Adoption?
A: Legal grounds for a step-parent adoption require either:
- The consent, or voluntary surrender, of all parental rights, by
the non-custodial birth parent, or
- The involuntary termination by the Court of the non-custodial
parents' rights based upon non-support or abandonment.
If the birth parent whose rights are sought to be terminated consents to
the step-parent adoption, he or she will file the consent with the
Court. If he or she does not agree, Colorado law requires that a showing
be made that the child has been abandoned either financially or
emotionally and it is in the best interests for that parent's rights to
be terminated. An affidavit must be provided indicating that the other
birth parent has abandoned the child for a period of at least one year,
or has failed without cause to provide reasonable support for such child
for a period of one year or more; and ultimately providing testimony
regarding the same.
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Q: Instead of going back to my maiden name, can I create an entirely new last name after my divorce?
A: Paternity can be established by several methods:
- A judge or other judicial officer of a Colorado Court may enter
an order.
- The county Child Support Enforcement Unit may also establish
paternity, and unmarried parents can also sign an Acknowledgment of
Paternity form at the hospital when the child is born.
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Q: How is paternity established in Colorado?
A: Paternity can be established by several methods:
- A judge or other judicial officer of a Colorado Court may enter
an order.
- The county Child Support Enforcement Unit may also establish
paternity, and unmarried parents can also sign an Acknowledgment of
Paternity form at the hospital when the child is born.
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Q: How can I increase my Court ordered child support?
A: Generally, you can only modify child support when the end result will be 10% higher or lower than the current amount. Changes in the amount of income, daycare expenses, health care expenses, and changes in the amount of parenting time are all factors that can alter the amount of child support.
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Q: How long do I have to pay child support?
A: Generally, both parents have a financial obligation to support their children until they turn 19 or otherwise become emancipated.
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Q: What is temporary maintenance?
A: There are two forms of maintenance: temporary and permanent.
- Temporary maintenance is Court ordered spousal support to be paid to
a party while the divorce action is pending.
- Permanent maintenance is spousal support ordered after the divorce is
final. The term permanent maintenance does not mean that spousal
support is paid indefinitely because the length of permanent maintenance
depends on the factors considered when a Court decides to award
maintenance.
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Q: Am I within my rights to ask my wife to leave our home, after we file
for divorce? The house is in my name.
A: If the parties in a divorce proceeding cannot agree who stays in the
marital home, the Judge will make a decision for them. The fact that the house is in your name only may or may not be a deciding factor.
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Q: The house and both of our cars are titled in my husband's name. Is it true that I have no right to these assets?
A: Regardless of how the assets are titled, assets obtained after the date of your marriage are considered marital assets. The Court will divide the marital assets on an "equitable basis", but necessarily an equal one.
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Q: Can I ask my spouse to pay for the divorce?
A: You can request that your spouse pay for your attorney's fees, but there is no guarantee that the Court will grant your request. The Court will compare your relative positions in regard to income and property and if there is a disparity, the Court will generally attempt to create a balance by awarding requested attorney fees.
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Q: My wife of 3 years wants to adopt my daughter from a prior marriage. We have not heard from the biological mother in over a year and are unsure of her whereabouts. How do we proceed?
A: When a parent has had no contact with his or her child for a period
of one year, and/or has not paid child support for at least one year,
evidence of the biological parent's abandonment of the child can create
grounds for the step-parent adoption.
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Q: What is a "Child and Family Investigator" (CFI)?
A: A "Child and Family Investigator", CFI, is an individual appointed
by the Court to conduct an investigation and make recommendations to the
Court regarding parental decision making and parenting time. The CFI is
usually a licensed therapist or has a background in psychology and/or
counseling.
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Q: Do Grandparents have the right to see their grandchildren even if
the parents will not allow visitation?
A: A grandparent has the right to petition for visitation if the
parents are divorced or separated. However, in order to rebut due
process presumptions in favor of the parent deciding on appropriate
visitation with the grandparents, the grandparents must demonstrate by
clear and convincing evidence that the visitation schedule they seek,
and not the visitation schedule the parent seeks, is in the best
interests of the child.
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Q: What are my rights as an unwed father in Colorado?
A: It is difficult to say with any certainty what rights an unwed father has prior to the determination of parental responsibility. This is one of the reasons why the father should submit to a paternity test after the child is born. Since Colorado favors the involvement of both parents, the Court usually gives each parent at least some parenting time. Parents have constitutional rights to determine how their children are raised, but in Colorado those rights are balanced against the best interests of the child.
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Q: For what reasons can I modify my child custody in Colorado?
A: Colorado allows for Court ordered modifications of parenting plans
if the Court finds that a change has occurred and the modification is
necessary to serve the best interests of the child. The statute sets a
high standard for granting modifications and basically limits the
granting of a modification to five reasons:
- Both parties agree to the modification;
- The child has been integrated into the family of the party
requesting the modification;
- There has been a modification of parenting time;
- A party has consistently consented to the other party making
decisions;
- Or the present situation would endanger the child's physical or
emotional development and the advantages to changing the child's
environment will outweigh the likely harm to the child as a result of
having their environment changed.
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Q: What does child support cover?
A: Child support considers the parties gross monthly income, child care
costs, health insurance costs, transportation costs (if any), and a variety of other factors.
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Q: Can I receive alimony when I divorce my husband of 20 years?
A: In Colorado, "Maintenance" is the term for spousal support or
alimony. A Court's decision to award maintenance to one party is made
on a case by case basis, and is dependent on several factors:
- Initially the party requesting maintenance must show that he
or she does not have the means to provide for his or her reasonable
needs
- It must also be shown that he or she has an inability to
support themselves through appropriate employment
Once that standard is met, the Court will also consider factors that include:
- The length of the marriage
- The age and physical condition of the party seeking maintenance
- The ability for the spouse to obtain education or training
- The ability of the other party to pay maintenance
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Q: Can child support be modified based on a former spouses' imputed income?
A: Child support can be modified if there is a substantial and continuing change of circumstances at the time of filing that would result in a change of more than 10% in the amount of support due each month. See C.R.S. 14-10-122(b). To impute income, the court needs to first make a determination that a parent is voluntarily underemployed or unemployed. If the court makes this determination, child support shall be calculated based on a determination of potential income. See C.R.S 14-10-115(7)(b)(I). There are a multitude of factors that the court considers in determining whether a parent is voluntarily underemployed or unemployed and it is improper for a court to impute income absent factual findings. Nonetheless, the court may impute to the parent the income from her previous job and is not limited to only impute minimum wage.
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Q: Is it to my advantage to have my wife file for divorce since she is
the one who wants to end our marriage?
A: The divorce process in Colorado is initiated with one of the spouses
filing a Petition for Dissolution of Marriage. Since Colorado is a
"no-fault" divorce state, this means that it is of no consequence to the
Court who files first, and the Court will not compensate the spouse who
wished to remain married.
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Q: What's the difference between a contested hearing and a
non-contested hearing?
A: A contested hearing is one where both sides have the opportunity to present evidence to the Court, and the Judge makes a decision based on
the specifics of the case. A non-contested hearing is for cases where
the parties agree upon everything, but a Court appearance may still be
necessary to finalize the matter.
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Q: How do I prove that my wife has contributed to parental alienation?
A: The degree of a child's alienation from a parent is usually investigated by a Court appointed professional. The Judge then considers the resulting assessment and all suggestions about the creation of an appropriate parenting plan. If the other party is not abiding by the Court order, it is also possible to a motion for contempt to enforce the Court ordered parenting time.
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Q: My ex wife no longer works because she is being supported by her new husband. Can I modify my child support payments to her now that she is voluntarily unemployed?
A: Child support is only calculated using the custodial and non-custodial parent's income. The Court maintains the right to deviate from the guidelines if it believes it is justified, but in most cases the Court will follow the amount proscribed by these guidelines. If one parent is voluntarily underemployed because they have remarried and no longer need to work, it is possible for the Court to impute income to the non-working parent for child support purposes.
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Q: After I file for divorce, can I withdraw $30,000 from my personal 401(k) so I can move out?
A: The automatic injunction does not allow this. Either party is free to use marital property to satisfy expenses in usual course of business or for necessities of life, but major expenditures must be agreed to by your spouse, or you'll have to request a Court order to take a distribution from your retirement account. Even then, you will be expected to account for how the money is spent.
Q: I just filed for divorce and I want to take my children to visit my parents in California. Can I do that as long as I come back to Colorado for the final hearing?
A: In divorce cases, the automatic injunction restrains you from taking the children out of state without permission from the other person or unless you have a Court order.
Q: How do I initiate divorce proceedings when my wife serving in the military overseas?
A: If your wife is being cooperative and you have reached an agreement, you may be able to obtain a divorce via the mail. Otherwise, depending on her deployment status, she may be able to put the divorce on hold until she returns to the state to participate in the proceedings.
Q: I have been living with my girlfriend for 3 years. Are we common law married?
A: There are no clean-cut designations that determine whether someone is common law married or not. All that needs to be shown is that the two of you intended to be common law married and presented yourselves to the
public as a married couple. In order to establish a common law marriage, Courts will be looking for specific indicators such as whether or not
you maintained joint financial accounts, or joint credit cards. They will also ask if you filed joint tax returns, or listed your significant
other as a "spouse" on insurance forms. If other evidence suggests that you are not common law married, however, such findings can negate these
items.
Q: My ex wants me to give up my paternal rights to our daughter so her new husband can take over as the father. Can I still visit my child if I consent to this?
A: The parental rights of the non-custodial birth parent are terminated in the step-parent adoption process. This means that his or her right to parenting time and the obligation to pay child support are extinguished.
Q: Do I need a marriage certificate to be legally married?
A: According to Colorado Revised Statute 14-2-109, the filing of the marriage certificate is a required part of the marriage ceremony. The county clerk and recorder will not register the marriage until the certificate is filed.
Q: What can I do about my ex-wife being consistently late for the parenting time exchange?
A: There is no law that addresses the length of time you should wait
when a parent arrives late to pick up a child, but you should wait for
what you consider to be a reasonable amount of time. If the other
parent is chronically late, you can file to modify the parenting plan
and create a stipulation that specifies timeliness, notice, and how long
you will wait before making alternative arrangements.
Q: Can I adopt my son's newborn daughter if he relinquishes his
parental rights? The mother passed away a year ago.
A: You can file to adopt your granddaughter if your son relinquishes his parental rights to the child.
Q: Can my husband gain custody of our children just because I don't have an income right now?
A: The amount of income you earn is not relevant when deciding where the children will live. While some people may argue that having a job indicates stability, the best interests of the child will also be
considered. There can be perfectly legitimate reasons for not having job, such as the tradeoff of working versus the day care costs involved.
Q: Do I have to notify my former wife that I will no longer be paying child support when our son turns 19 next month?
A: You should file a Motion to terminate support if the child support order is not clear about what conditions must exist for the order to terminate. The Support Order usually states that support terminates at
the age of emancipation barring special circumstances.
Q: When child support is modified, what date does the change become
effective?
A: You should file a Motion to terminate support if the child support order is not clear about what conditions must exist for the order to terminate. The Support Order usually states that support terminates at
the age of emancipation barring special circumstances.
Q: My husband has been very secretive regarding our finances throughout
our 10 year marriage, and he owns several businesses. Will I need to hire a private investigator to determine our net worth?
A: After filing for divorce, each party is required by law to disclose financial information to other party: pay stubs, bank statements, retirement statement accounts, tax returns, and credit card statements.
The parties are also required to file sworn statements with the Court regarding monthly income and expenses. In complex cases, especially
those where businesses are involved, it may be necessary to hire a forensic account to trace and uncover assets.
Q: Is my former fiancé legally obligated to return the diamond engagement ring to me now that she has refused to marry me?
A: The Colorado Supreme Court has held that the recipient of an engagement ring must return it to the giver if it was conditioned upon a subsequent marriage.
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Q: Can I garnish my former wife's wages to obtain arrearages on child support?
A: In the State of Colorado, you can enter an income assignment, or garnishment, with your former wife's employer. Subsequently, The Family Support Registry will monitor and transfer the payments directly to you.
Q: Q: What exactly are temporary orders in a divorce proceeding?
A: During "Temporary Orders" the Colorado court can order parties in divorce proceedings to make certain payments while the divorce is pending. These can include orders to pay the mortgage, make maintenance
(alimony) payments, and pay child support. There is often a delay between filing for the divorce and the entry of temporary orders hearing. The delay can range from a few weeks to a few months, depending on the county.
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