The Real “Allocation of Parental Responsibilities”
SOON TO COME: Collaborative Family Law
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 no “easy method” of getting a divorce, only a “less messy method.” See Collaborative Divorce.
I have never been legally married to the other I share a household with. Do I really need a divorce?
Great question with a not-so-direct answer. What this refers to is “common-law marriage,” a hindsight marriage that is most commonly brought up in cases of divorce or probate. To prove a “common-law marriage” requires a shared home address, shared assets, shared accounts, joint-filed taxes, and other similar provably shared things. Secondary and less-proving pieces of evidence come from the expectations of people such as admissions to friends or family of a husband-and-wife relationship or, even less-proving, not correcting those who have assumed the two of you to be married. When in doubt, get a divorce. It is “easier” than cleaning up the mess later should you get legally married without the legal divorce.
Do I need an attorney to get a divorce?
Technically, there is no reason you cannot get a divorce on your own. Such cases tend to take up more court time primarily due to simple things like missed filings, the lack of responsibility for doing any in-between pieces such as mediation and status conferences etc. Judges are use to it and, while they don’t like it, there is nothing in law that can stop you from doing so. We only recommend this if there is absolutely no chance of the two of you disagreeing on something and, thus far, have not recommended it to anyone except the most adament about their agreement, many of whom later tried to hire us to represent them after they discovered a major disagreement only to find the firm too busy to take their case at the last second.
Aside from an attorney, what are the costs?
In a standard divorce, the up-front costs are obvious, the attornies and the filing fees. The filing fees CAN be waived if the court allows it for the sake of financial hardship. Attorneys tend to be a little less helpful. It is the policy of Whole Family Legal to try to take on no less than 10% of our cases Pro Bono (free of charge) or at least sliding scale, but ONLY IF the client has already been through the monthly JAMLAC clinic at the Broomfield FISH center.
Does it matter if I'm the one who moves out?
The short answer is “No.” The long answer is that judges like parties that are proactive peace keepers, humbly trying anything they can to keep the peace. Judges do not like stubborn, bitter, angry, prideful, any parties that do not put the good of the children before their own good, and this includes keeping down any witnessable trauma between the parties.
Does it matter who files first?
As with the previous answer, the short answer is “No.” It does not matter who files first, however it does matter if you are late filing anything from that point forward. Again, the object is to proactively be the good guy.
Can I get maintenance?
Under Colorado law, maintenance is calculated based on each party’s income and is calculated separately from child support. The higher the income and the greater the difference in incomes, the greater the possible maintenance. One word of caution: Do not be greedy OR humble. Judges like things in balance and will not appreciate any party that is either seeking more maintenance than is responsibly needed nor any party that attempts to flatly refused maintenance. If you do NOT want maintenance, that is ultimately between you and your ex, but it is also not recommended because if you should need it later and your ex refuses, it can end up being a new nasty court battle in which both of you will lose.
Do I have to tell the other party about all of my financial assets?
Under Colorado law, financial disclosure is required and is mutual, both sides required to share all financial information with each other and the court. Any financial information left out that is later proved to exist can be a major blow to your case. Do not try holding back information.
What is "custody"?
Usually when we talk about “custody,” we are primarily referring to the allocation of parental responsibility (APR) towards a child or children. Therefore, we would be talkinga bout everything from decision making and child support to parenting time.
What exactly is the "Allocation of Parental Responsibility" (APR)?
APR is the legal term for allocating parenting time, decision-making power, and more for children. It is the legal document produced from a custody case and would remain the legally binding document should any side of the case do something against it’s instructions.
What do you mean by "decision-making"?
Splitting of parental responsibility (in a divorce or in the case of losing children to another party) typically also results in a division of decision-making, anything from 50/50 to 100% decision-making by a single party. The primary areas for such decisions are medical, educational, and, of course, legal. If this responsibility is split 50/50 and the parties cannot agree on something that is not life-threatening, the only way to deal with it is in court. For either party to arbitrarily act without agreement or court authorization would look bad on that party.
I'm not married nor do I need a divorce but do share a child or children. Does this mean I need an APR?
“Need”? No. “Want”? More than likely. We have seen many such cases come through the firm when the mother or father want to marry, have primary custody without paperwork, and simply drop visitation of the other parent. It happens all the time. If you two are splitting up, it is in both of your best interests as well as the best interest of the child/children involved to get a court-signed APR done showing everything you agree with so that there are no questions later or, at least, that any future questions would need to be brought to court.
If we get along and share responsibility after the break-up, do we really need a custody case?
Repeating the above answer: “Need”? No. “Want”? More than likely. We have seen many such cases come through the firm when the mother or father want to marry, have primary custody without paperwork, and simply drop visitation of the other parent. It happens all the time. If you two are splitting up, it is in both of your best interests as well as the best interest of the child/children involved to get a court-signed APR done showing everything you agree with so that there are no questions later or, at least, that any future questions would need to be brought to court.
Aside from an attorney, what are other costs of a custody case?
As with divorce, the up front expenses tend to be filing fees and attorneys fees. With custody cases, sometimes intertwined with divorce cases, additional fees might include a representative for the child/children or two which, like court fees, might be waived by the court with the right filings and at the court’s discression.
Can I waive child support?
Like attempting to waive maintenance, it greatly depends on the differential between your two incomes and the needs of the children. It is not, however, recommended that you ask. Asking shows that you care more for your own comfort dealing with the other party than for the needs of your children.