FAQ - Divorce

Frequently Asked Questions about Divorce Law

Q: How do Colorado judges divide property in divorce cases?

A: In Colorado, judges must first allocate to each spouse his or her separate property, and following that they are required to divide the couple's marital property in a "fair and equitable" manner. In Colorado there is no legal requirement for a 50/50 division of marital property. Factors such as one spouse having a large amount of separate property or a spouse making a disproportionate contribution to the accumulation of marital property can result in unequal property division.

Q: Do Colorado judges favor mothers in custody disputes?

A: It is hard to generalize about the prejudices of individual judges, but Colorado law does not discriminate against fathers, and in fact presumes that both parents should have substantial and frequent contact with their children. This does not mean, however, that parents will necessarily end up with a 50/50 parenting time arrangement. The physical proximity of the parents, their ability to co-parent after the divorce, and the wishes of the children are among the factors that are taken into consideration by Colorado judges in fashioning parenting time schedules. The guiding principle in this undertaking is not what is in a parent's best interests, but what is in the children's best interests. In custody cases, it is common for the court to appoint a child and family investigator, who is often a social worker or psychologist, to interview the parties, their friends and relatives, and the children, and make recommendations to the judge.

Q: Is Colorado a common law marriage state?

A: Yes. However, there is no set period of time (e.g., 7 years) that parties must cohabitate to become married in the eyes of the law. Instead, whether parties are married depends upon their intent. In order to establish a common law marriage it must be proved that there was some form of mutual public acknowledgment of the marital relationship. Given the absence of a marriage ceremony, a mutual public acknowledgment of the marital relationship is usually proven by establishing the couples "general repute" as being married in their community. Friends, relatives and neighbors are therefore important witnesses in contested common law marriage cases because they can testify whether they understood the couple to be married or not and why. Other factors that judges can take into consideration besides cohabitation are whether the woman has taken the man's surname, whether children born to the couple have the man's surname, whether either or both parties wore wedding rings, whether the parties owned property together, and whether the couple filed income tax returns as a married couple.

Q: Do I need a lawyer to represent me in my divorce?

A: The answer is sometimes. If a couple has been married a short time, have little or no marital property and no children, hiring a lawyer is probably not necessary. However, in cases in which there is substantial property, potentially undisclosed or undervalued assets, or disagreements regarding custody, spousal maintenance or child support, an experienced divorce attorney is needed. It is a particularly bad idea for one spouse to represent him or herself against a represented spouse. Colorado, like every other State, has an adversary system of justice which presumes that both sides in a dispute will effectively represent their own interests.

Q: My husband makes more money and/or controls more of the assets than I do. Can the Court order him to pay my attorney's fees?

A: The answer is yes. Colorado judges have the authority to allocate legal expenses between the parties and it is common for judges to do this. Both sides have the right to competent legal counsel and in Colorado the law is clear that it is appropriate for legal expenses to be paid with marital funds regardless of which spouse controls these funds.

Q: My wife thinks that the money she earns from her job and that the money in her retirement account is "hers". Is this true?

A: The answer is probably not. Money earned by either party in a divorce case is marital property subject to division by a judge. Judges, particularly at the early stages of a divorce case, are not concerned about who earns it. Money in retirement accounts may be separate, marital or a bit of each. For example, if a the wife had $100,000 in her retirement account on the date of the marriage, and $200,000 in the account on the date the divorce decree is entered, $100,000 of the account is separate property that must be set apart to her. The remaining $100,000 is marital property which the judge is required to fairly and equitably divide between the parties.