The Real “Allocation of Parental Responsibilities”
Frequently Asked Questions
Whether it is separation, divorce, custody, or maintenance, the decision to divorce comes at a steep price, and we aren’t talking about the legal bills. Before making that final decision, know the FAQ’s and ask the right questions of an attorney.
What is "Divorce"?
Legally speaking, divorce is the division of a life spent together, whether legally or common-law married. It often includes dividing debts, assets, parenting time and/or pet time, and child/spousal support. In the state of Colorado, expect the process to take at least 3 to 4 months minimum. Even after the divorce, parenting time and support collection can be another round in the courts as well. There is nothing simple or easy about divorce. It is messy.
I have never been legally married to the other I share a household with. Do I really need a divorce?
That is, unfortunately, not an easy question to answer, but we can give you a few guidelines the court would look at:
- Have you filed taxes together?
- Are there any household bills in both of your names? (e.g., rent, car loan, credit cards, utilities etc.)
- Is there anyone that could witness that you are both married?
It is this last question that really gets to the bottom of the question: Is there a public assumption of marriage? If there is, best play it safe and at least ask an attorney for more advice. If there is not… it still might be a good idea to ask, just in case.
Do I need an attorney to get a Divorce?
Not at all. All of the forms are online in the court website or you can go to the courthouse for them. There are a few services that even offer free classes to help you figure the process and forms out. It is still, however, a generally good idea to hire an attorney instead of representing yourself. Are you comfortable facing the other party or his/her attorney on the other side? Are you comfortable speaking up for yourself in a courtroom? Do forms confuse you? Is there a history of domestic violence or other abuse? Do you know, for a fact, what you are legally entitled to and what your rights are? Take all of this into consideration.
Can I hire an attorney after I've already started the case?
Yes, but it is more difficult. Most attorneys will require no less than 2 weeks notice prior to the next court date or will require that you get the court to continue (postpone) the case before they will take it on. You also want to establish a professional relationship with your attorney and, not unlike showing up late to an interview, a late decision to hire one does not start you off with a great impression.
Aside from an attorney, what are the costs?
The forms can cost $20 to $25 at the courthouse or you can download them for free from www.courts.state.us/Forms/index.cfm and printing them out for yourself. Beyond that, the court also has filing fees. These fees can be waved based upon your lack of resources (form jdf205). It is a two page financial summary and it will require the incomes of any other people living in the same house as you are who are more than just roommates (e.g., family members, significant others etc.).
Does it matter if I'm the one who moves out?
Yes and no. The court does not hold it against you, however there is also no strong enforcement available to, then, get your personal possessions. If you have something that matters to you, take it with you. See also the Custody questions.
Does it matter who files first?
No, at least not to the court. The initial filing fee is slightly higher for the Petitioner (the one who files first) than the Respondent. Beyond that, the clock starts with the first filing. Otherwise there is no benefit or loss to filing first.
Can I get maintenance?
Maybe. There is a formula the state uses for this: 40% of the higher gross monthly income – 50% of the lower gross monthly income. There is also a needed determination of a party’s “need.” Colorado has adopted a set of maintenance guidelines to suggest an appropriate amount of maintenance and an appropriate period of time for maintenance to continue based upon the length of the marriage. The Court is not bound by these guidelines, but will use them for a starting point.
Do I have to tell the other party about all of my financial assets?
This is called the Mandatory Financial Disclosures, and yes, both sides must file them and see each other’s filing. If a party does not disclose everything, the other party can challenge this, requesting of the court a specific order to disclose such information. Even a gift or inheritance must be disclosed, so do not hold back. If it is your asset, it must be disclosed. Keep in mind as well that if you fail to disclose anything, this can come back to court for up to 5 years later and any support order or division of assets in the original order could, then, be recalculated including back interest.
What is a "Custody" matter?
Usually when we talk about “custody,” we are primarily referring to the allocation of responsibility towards a child or children. Therefore, we would be talking about everything from decision making and child support to parenting time.
What exactly is the "Allocation of Parental Responsibility" (APR)?
An APR in Colorado Courts is the legal assignment of custody, used when there is no marriage to dissolve (no divorce proceeding). Just like “custody,” it assigns any arrangements for decision-making and parenting time. In our opinion as well as personal experience of Rebecca and Monte, for long-term care of children not your own, it is better to take this route than to do a Power of Attorney for such duties as enrollment in school and medical care.
We have found, through our adoption of our “Junior Partner” Freya, that it can also be used as a stop-gap when adopting privately between two parties, custodial adoption requiring a full year between child and adoptive parents before concluding.
What do you mean by "decision-making"?
Anything that is a “life decision” for a child requires a “decision maker” that can be legally assigned by the court if necessary, such as in the case of a divorce or foster care. This could include school choice, physician choice and when to go for medical treatment, the kind of medical treatment allowed, religious upbringing, and even extra-curricular activities. This would not, however, include the everyday such as what a child eats and wears, hairstyle, or the means of discipline.
I'm not married nor do I need a divorce. Does this mean I ask for an APR?
Yes, you get the picture. Of course that assumes the court agrees that you are not married and do not need a divorce. We have also come across cases where there was just a little too much intermingling of households. This falls into the category of “Common Law Marriage.” (See the FAQs on Divorce.) If that’s the case, your request for an APR will be vacated since it is asking the wrong question and you will have to go through a divorce in order to allocate that responsibility.
If we get along and share responsibility after the break-up, do we really need a custody case?
“Need” is a strong word right at this moment. You “want” a custody case to settle everything out legally because this moment may not last. While you still agree on everything, get the court to adopt your agreement without a fight now. Here is an extreme example of what could go wrong:
If the other parent takes the child to another state, you have no legal claim of kidnapping without firmly established custody and may be going to family court too late to do anything about it as well. After 6 months in the other state, by Colorado’s determination, the child is now in the jurisdiction of that state. Colorado will no longer take on a case regarding custody of that child.
Do I need an attorney for a Custody case? Can I hire one after the case is started?
Like with divorce, you can download the forms free, online, from the courthouse and represent yourself and you may find free services to help you understand filling out the forms as well, but there are several reasons you may want an attorney anyway, the least of which is just not feeling comfortable with the forms. See the Divorce side for other reasons.
Same is true for hiring an attorney after the case has started. Like our answers on the Divorce side, the biggest problem with hiring an attorney afterwards is finding one that will take it on prior to the first hearing. See the Divorce side for other reasons.
Aside from an attorney, what are other costs of a Custody case?
The forms can be downloaded and printed for free at www.courts.state.co.us/Forms/Index.cfm both in MS Word and PDF formats or you can purchase the forms from your local county courthouse for $20-$25. There will also be filing fees involved with the court. If you cannot afford the filing fee, use form jdf205 and ask the court to waive the filing fee for you based on your lack of resources. It is a two page financial summary and requires the incomes of all other people living in the same house who are in any way related to the case (e.g., family members, significant others etc.).
What if I just keep the children or just leave them with the other parent?
If you do not take the children with you, you need to get a parenting time agreement IN WRITING with the other party or, at the very least, keep a log of your contact with the children. Otherwise, if the fight gets ugly, you could be accused of abandoning your children without evidence to the contrary.
Likewise, if you keep the children away from the other parent, be sure to file promptly for custody. If you take too long, the court may interpret it as playing games against the other parent, unable to put your children’s needs ahead of your own needs or fears.
If you leave the children with someone other than the other parent for a long period of time, you might give them the right to assert parenting time and/or decision making privileges against both you and the other parent. Yes, it is that messy. Take the time and write out a plan of how you want to handle parenting time and decision making.
Can I waive child support?
It is your right to ask for it to be $0 (not waived), but do not expect the court to automatically grant it. Child support is not for you, but is the right of the child and cannot be waived. If both incomes are close to equal and parenting time is close to equal, or the parent with the greater income is already paying more of the debt and expenses, $0 child support may be the right call.
Be ready to explain to the judge how your child will not get the short end of the deal. It is his or her money, not yours. Otherwise the judge will impose child support even if both parents agree.
Northglenn, CO 80233