While we cannot answer most specific questions you may have about your case, we do occasionally find ourselves thinking about the questions we hear regularly during FREE consultations. Here are select questions we hear often along with their common responses. If you cannot find it here, give us a call and make an appointment for your FREE consultation.
If I’m not married and don’t need a divorce, what can I do to get custody of my child?
You need to go through an Allocation of Parental Responsibilities (APR) case. This essentially is what we used to call a custody case. You file a case with the Court, asking the Court to enter orders about decision making and parenting time for your children.
What does “decision making” include?
It covers major life decisions, such as deciding whether and where your child will receive religious training, deciding what school your child will attend, deciding what physician your child will see, making determinations on what optional medical treatment your child will receive, and deciding what activities your child will participate in. It does NOT include day to day decisions, such as what the child will eat or wear, whether to cut the child’s hair, or how to discipline the child.
If I’m getting along with the other parent of my child, and we are not married, do I need to go through a custody case?
This is the ideal time to file a custody case. You can file your agreement at the same time and get the Court to adopt it as an order very quickly and without a fight. Without a court order, either parent has an equal right to have the child with him/her. This means if the other parent takes the child and leaves the state, you cannot press kidnapping charges. Your remedies are limited to those in the family court. If the child is removed from the state, after 6 months in the other state, that state’s court will have authority (jurisdiction) over the child, and Colorado will not.
Do I need an attorney to get divorced or to get custody of my child?
No. You can do it yourself, using the forms online. There are a few services that offer free classes to help you figure out the process and the forms. However, it may be advisable to get an attorney anyway, depending on your circumstances. If your case has issues that relate to another state, you need an attorney. If you are not comfortable facing an attorney on the other side, or not comfortable speaking up for yourself in a courtroom, you need an attorney. If forms confuse you, you need an attorney. If there is a power imbalance between you and the other party (i.e. a history of domestic violence and/or physical or mental abuse) such that you have a hard time saying no, you definitely need an attorney. If you don’t know what you are entitled to and what your rights are, you need an attorney.
Do I have to buy the forms if I want to start it myself?
No. You can buy the full packet of forms from your local county courthouse for $20-25. You can also download them for free (in either MSWord or PDF format) from www.courts.state.co.us/Forms/Index.cfm.
Can I hire an attorney after I’ve already started the case?
Yes. An attorney can enter her appearance for you after the case is already in progress. Most attorneys will require that you contact them a minimum of 2 weeks before your next court date so that they have adequate time to get to know your case and prepare. If it is short notice, they may agree to represent you only if the court will continue (postpone) the court date.
Does it matter if I file before the other party does?
No. There is no benefit or loss to filing first. The initial filing fee for the Petition is a little higher than the filing fee for the Respondent. That is the only difference.
What if I can’t afford the filing fee?
The Court has a form (jdf205) which can be filed, asking the Court to waive the filing fee for you based upon your lack of resources. It is a two page financial summary. The Court will require you to include the incomes of any other people living in the same house who are more than roommates (i.e. family members, significant others, etc.).
Does it matter if I’m the one that moves out?
Yes and no. The Court will not hold it against you. However, it has a very practical implication for personal belongings. It is nearly impossible to enforce an order requiring your ex to give you personal items from the house, so if it matters to you, take it with you when you move. It can have implications on parenting time if there are children involved (see next question).
Does it matter if I keep the children from the other parent, or leave them with the other parent?
If you do not take the children with you, either get a parenting time agreement in writing with your soon-to-be ex or at least keep a log (journal/diary) with dates and noting when you had contact with your children. This will give you necessary evidence to rebut any allegation your soon-to-be ex might make that you ‘abandoned’ your children and so should have less parenting time. If you keep the children away from the other parent, be sure you file promptly. If you take too long, the Court might interpret it as playing games, and being 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 too long, you might give them the right to assert parenting time and/or decision making privileges, even against you.
Do I have to disclose (tell the other party about) all of my financial assets?
Yes. There are mandatory financial disclosures, as well as an obligation to disclose anything of value that doesn’t fit the standard categories. If the other party fails to disclose items, you can file a request with the Court for a specific order for those items to be disclosed. If it was a gift to you, or an inheritance, you still have to disclose it. It will be separate property, but it may have some marital value too. If the Court or your ex discovers that you failed to disclose an asset (maybe a 401k you opened and didn’t tell him about, a bank account, an inheritance), the Court can reopen your entire divorce case for up to 5 years from the date of your Decree. This means that the Court can change the division of the assets and debts, as well as any support orders. This is a very bad position to be in, as you will also have the Judge very mad at you for playing games. You will be sharply penalized for a failure to disclose.
I don’t want child support from my ex. Can I just waive it?
Child support is the right of the child, so you cannot waive it. However, in some circumstances, it is appropriate to agree to $0 child support. For example, if incomes are relatively equal, parenting time is relatively equal, or the parent with greater income is paying more debts or expenses, it may make sense to agree to $0 child support. You have to be able to explain to the Judge why your child will not get the short end of the deal, or the Judge will impose child support even over your agreement.
Can I get maintenance (alimony)?
Maybe. Temporary maintenance is often relatively easy to get. There is a formula for calculating the amount; 40% of the higher gross monthly income – 50% of the lower gross monthly income. The Court has to determine that the lower income person has a need, and that the higher income person can afford it. It is always a case by case basis. Maintenance beyond permanent orders is harder to get. Regardless of what you have heard about the “rules” for getting maintenance (married a certain number of years, so many $/month for each year you’ve been married, etc.), there are no firm rules in Colorado for maintenance beyond permanent orders. It is very subjective, and considers the factors listed above, as well as what is fair and appropriate in each case. If you do get maintenance, be aware that it will affect your child support. If you waive maintenance at permanent orders, you can never come back and ask for it in the future.