Legal Separation In Colorado
In the context of Colorado family law, legal separation is an intermediate step that people may take between being married and getting divorced. Although it is a distinct legal state from being divorced, it is a good way for people to try out living apart from each other legally before seeing if they want to take the next step and seek to divorce each other. Just like in a divorce proceeding, the couple would have to decide what happens to their money, assets, children and other matters of vital importance. Legal separation allows couples to maintain some or all of the legal benefits of marriage while at the same time enjoying the benefits of living separately from each other. This means that you can maintain health insurance under your spouse’s plan, inherit property as if you were still married and file joint tax returns with a lower tax rate than if you were divorced . Some people opt to get legally separated instead of divorced because of their religious beliefs or personal beliefs about the state of their marriage. Obtaining a legal separation, rather than a divorce, allows them to continue to live apart while preserving the financial and legal benefits of being married. People may also choose to get legally separated because they do not yet think of their marriage as irretrievably broken and want to take time apart to see if they view it as such in the future. Those who are certain about their choices and do not want to schedule money for an extra step in a series of legal actions may prefer to file for divorce. No matter what you ultimately decide, you should contact a knowledgeable Colorado family law attorney to assist you and your spouse.
Divorce in Colorado
Though the divorce process can differ from state to state, some things remain prevalent no matter the jurisdiction. In Colorado, the initial requirements for filing a divorce action include that both parties must be eligible for divorce under one of the state’s six grounds for divorce and that the court have jurisdiction over the parties in order to grant a decree of dissolution. Jurisdictions will analyze the validity of the ground that the action is filed under and whether that ground meets the legal requirements.
In Colorado, a petitioner can file for legal separation or divorce after living separate and apart for 91 days from the date of service of the Petition. In the event that parties have minor children, it is recommended to proceed with legal separation rather than divorce until the children reach age of 18 to avoid having to pay child support.
Colorado employs a "no fault" divorce approach. This means that neither party has to prove any cause or fault in order to proceed with the divorce. The legal grounds in Colorado, however, do require proof of: (1) irretrievable breakdown of the marriage (which does not require any further proof of other issues as was previously required under the former law); (2) conviction of a felony; (3) impotence; (4) severe and chronic abuse of first party; (5) adultery; and (6) mental illness (or being in a mental facility for six consecutive months). Residency requirements for filing a divorce action include that either party must reside in the area for at least 91 days before filing in the appropriate district court.
Legal Separation Vs Divorce
The most significant difference between legal separation and divorce is the finality of the marriage. With divorce, you will face the end of your relationship with your spouse. While the legal separation process works to divide many aspects of your life, you still remain married to your spouse.
Legally, a legal separation is the same as a divorce in that the court will issue a decree of legal separation. The differences are that in legal separation, you may work to figure out whether your marriage has hope for saving or if you are ready to move on to divorce.
A legal separation in Colorado is a common option for couples who desire the benefits of a divorce, minus the paperwork, and the benefits of a marriage, minus the one-flesh between you and your spouse. Consider the following main differences between the two.
The most obvious differences between legal separation and divorce rest in their meanings. A couple that legally separates remains legally married, while a divorcing couple ends their marriage through the court. This means they are no longer a family unit through the eyes of the law.
Because the two dissolve your union differently, this leads to an obvious difference in finances. Your finances will no longer be shared once you divorce. Your tax filings will change, and your income or tax bracket may also change.
A legal separation does not disintegrate your marital assets. By remaining legally married, your taxes will remain the same. Though you will likely live in separate households, legal separation continues to divide your finances as if you were married. Your taxes will not be affected.
In Colorado, a legal separation may be a pre-cursor to a divorce. You may want to see if the separation helps you to reconcile with your spouse. It allows you to decide whether or not you would like to divorce or remain married.
The Money Factor: Legal Separation Vs Divorce
A crucial factor in deciding whether to separate or divorce is the financial implications of either option. Identities as a single person and as a married person each have their own costs and tax liabilities. For instance, you will need to establish a whole new budget once you are legally separated or divorced, since the spending forms and accountabilities change. You may need to pay more for health insurance if you will no longer be covered by your spouse’s employer plan.
Typically, in Colorado, assets are divided according to equitable distribution rules, which means marital property is fairly divided. Courts may choose to award an uneven split of property if there are significant underlying factors that make it just to do so. However, neither party can be awarded property obtained prior to marriage.
After separating or divorcing, the courts will also determine how debts are divided. If a debt was incurred after the date of separation, either party is still responsible for paying their half, and nothing can be done except to pay the debt off together. However, debts acquired before the date of separation are handled differently. The most important thing to remember is that a legal separation changes nothing about who is responsible for pre-separation debts, and you still have the same amount of liability as when you were married. However, divorce discharge debts and allows individuals to start fresh with their partners’ finances.
Alimony allowances vary from case to case, but in most situations a spouse can expect to receive 30-35% of the net amount that the ex-spouse earned. Alimony is most often granted in short-term marriages, however, and often run for maximum of 2-3 years to allow both parties time to get back on their feet.
Considering The Children: Custody and Support Issues
The impact of legal separation or divorce on children can vary, although the results are still traumatic as the family unit is broken and the children are forced to realize that their parents are no longer able to live together and have broken up the family. The only difference may be where the spouses will live. There are several ways to address custody issues in a decree for legal separation or in a decree for dissolution of marriage. Parents may develop a parenting plan that works for their families, but if the spouses cannot agree on the provisions of a parenting plan, the Colorado judges are required to issue orders in the best interests of the children, which usually include provisions regarding parenting time, the decision making process regarding children and the sharing of costs of child care in terms of education and health. Colorado law requires that the court give weight to the wishes of the child if the child is mature enough and if the court determines that the interpretation of such wishes is independent (not affected by parental pressure, etc.).
Once the parenting plan is established , the parties must follow it while the separation or dissolution of their marital relationship exist. It is possible for the courts to change previously entered orders by the agreement of the parties without the necessity of an evidentiary hearing. However, if changes are required, such as one parent moves to another state or voluntarily leaves a country where the actual or real life serves a parent, the parties must return to court for hearings, where the children’s views may be presented to the judge and the history of the changes established by the party seeking to enforce the modification.
Colorado divorce laws have established parameters for child support, and more specifically, how much is required to satisfy the basic needs of the children. Additionally, both parents may be ordered to pay the same amount of child support, depending upon the income levels and the child care requirements. When a parent is out of state, even in the military, either parent may file a petition for modification of support, but the military service member or spouse must be given notice of such petitions.
To Separate or Divorce: How to Decide
In Colorado, the decision of whether to pursue a legal separation or a divorce will depend on the individual needs of you and your spouse. Considering the following factors can help you make the right choice for your situation:
1. Addressing Your Finances
As mentioned above, deciding between a legal separation and divorce requires understanding some fundamental differences between the two. With a legal separation, you remain a married couple-you are still tied by the financial connections you shared as husband and wife. This means you are still responsible for each other’s debts and may not make any significant changes to your financial situation without the other spouse’s consent (unless a court order allows you to do so).
For many couples, this is the biggest drawback of legal separation-without the ability to sever all financial ties, it is impossible to move on as individuals. Although divorces can become financially complicated, ending the marriage usually allows one or both spouses to start fresh with their own expenses and income.
2. Considering Children’s Needs
Married or not, any couple with children has to consider what is best for their kids. For example, some couples may prefer to formally separate because their kids are too young to understand a divorce. You may have certain religious beliefs that need to be considered, too.
The most common reason couples with children decide to get legally separated instead of divorced, however, is that separating will allow them to receive necessary health insurance benefits only available to legal couples. For example, as a result of the Affordable Care Act, many parents can insure their children under their own plans, but they also want to retain the option of insuring the kids through their spouses’ plan. Legal separation allows you to maintain that ability.
3. Determining Your Individual Goals
Of course, every couple will have unique goals that determine the right path for their family, so the above guidelines should only be considered when necessary. The most important factor is what will work best for you and your loved ones. If you believe you have a chance to save your marriage, time living apart can help. However, be sure you are prepared for the long-term consequences a legal separation can create.
See A Family Lawyer In Colorado
If you are considering legal separation or divorce, you should not attempt to understand the process or its consequences in Colorado without seeking advice from a qualified family lawyer. A divorce lawyer will help you with information and advice on all aspects of the law and, in particular, those issues that apply to your family situation, whether they be property, debt or the issues of parenting time, allocation of parental responsibilities and child support . Some individuals have trouble with getting the right answers to their questions and some problems stem from assumptions made about the law. Do not make the mistake of assuming you know the answer until you have been guided properly by an experienced family law attorney. Listen to them if you are unsure of the facts, and accept their advice and experience in the area of family relations and the law. In most instances, however, you will find their advice logical and even intuitive.