How Does Cheating Affect a Divorce?

Posted in Child Custody,Divorce on November 18, 2019

Cheating is the driving factor behind many divorce cases. Cheating could be the reason one or both parties come to the courts with a divorce petition. Whether cheating will play a role in divorce proceedings, however, depends on the state. Most states permit petitioners to bring fault-based divorce claims on the grounds of adultery. In these states, cheating could influence a judge’s decisions, such as child custody or alimony. In Colorado, however, no-fault laws mean cheating generally will not affect a divorce.

Colorado Is a No-Fault Divorce State

Colorado is one of 17 true no-fault divorce states in the U.S. True no-fault states do not allow residents to file for fault-based divorces. In Colorado, therefore, a petition cannot list adultery as a reason for the dissolution of marriage. The only acceptable grounds for divorce in Colorado is an irretrievably broken marriage. Even if cheating is what broke your marriage, the state courts do not need to know the specifics. The courts only ask that either both parties agree the marriage is irretrievably broken or the respondent does not deny it.

Cheating will not impact any of a judge’s decisions during most divorce cases in Colorado. Since a petitioner cannot assert adultery as a reason for the dissolution, the judge will not consider it during child custody, property division or alimony decisions. In a fault-based state, on the other hand, a judge may use cheating as a determining factor in these important decisions. In general, the spouse that did not cheat could receive a greater portion of marital property and alimony in a fault-based divorce state.

Exceptions to the Rule

Although cheating will not play a factor in most no-fault divorce cases in Colorado, some exceptions to the rule exist. In extreme situations, adultery could impact a judge’s decisions. A judge in Colorado will not look at a spouse’s moral or ethical fitness, but he or she could assess how adultery might impact material aspects of the case. If you are curious as to whether cheating might affect your divorce, consult a lawyer.

  • Marital waste. Colorado is an equitable distribution state, meaning a judge will divide marital property based on what is fair and equal for the couple. Many factors could influence a judge’s decision, including marital waste. This is a legal issue in which one spouse spends an excessive amount of money; for example, if a spouse spends an exorbitant amount on travel or hotel rooms while having an affair. In cases involving marital waste, a judge could award greater marital assets to the other spouse.
  • A child’s best interests. In some adultery situations, a judge may see one parent’s romantic relationship as something that could potentially go against the child’s best interests. If the parent’s new spouse has a history of domestic violence or substance abuse, for example, the judge may not feel comfortable awarding that parent primary custody of the child. The child’s best interests will be the main standard in making this decision, however, not the fact that one parent cheated on the other.
  • A prenuptial agreement. Some couples in Colorado sign prenuptial agreements before getting married. A prenuptial agreement could have an infidelity clause, in which case cheating would affect the divorce. An infidelity clause could state that if one spouse cheats on the other, the cheating spouse must face the consequences listed in the prenup, such as getting to keep fewer marital assets.

In most cases, it will not matter if your spouse cheated on you in Colorado. If your relationship fulfills one of the exceptions, however, you may need a lawyer’s assistance in navigating how adultery might impact your divorce. A lawyer could help you use your spouse’s adultery to your advantage, if possible, or defend you against such actions if you are the one guilty of infidelity. Regardless of your situation, a divorce attorney could help you work through a complicated divorce case in Colorado.



What Is Fault Divorce Versus No-Fault Divorce?

Posted in Divorce on November 18, 2019

During a divorce case, you may hear the terms fault and no-fault, especially at the beginning of the filing process. While every state allows claimants to file for no-fault divorces, some also give the option of filing for a fault divorce. It is important to understand the difference between these two types of divorce, the laws in your state and which type of divorce will serve your best interests. An experienced divorce attorney can review your case to help you answer these questions.

What Is the Difference?

A no-fault divorce does not allege that one spouse or the other caused the marriage to dissolve. Instead, it gives a mutual reason such as irreconcilable differences. A fault divorce, however, asserts that one spouse caused the split. The distinction is important because separate rules and laws apply to each type. If a spouse succeeds with a fault-based divorce, he or she could bypass rules such as the required period of separation as well as receive a greater portion of marital property. Proving fault for divorce in some states could also lead to alimony – or more alimony – for the not-at-fault spouse.

Although a fault divorce could come with benefits, it can also be more difficult to win and take longer to resolve. For a successful fault-based divorce, the filing party must prove fault. The party alleging fault must have evidence that the scenario fulfills the state’s requirements for fault divorces. In most states, these requirements include adultery, abandonment, domestic violence, a conviction for a crime or the physical inability to have sex.

Is Colorado a Fault or No-Fault Divorce State?

Not all states permit people to file for fault divorces. Currently, claimants can request fault-based divorce actions in 33 states. The other 17 states and the District of Columbia are no-fault divorce states. A true no-fault divorce state does not allow anyone to file otherwise. Colorado is one of them. In Colorado, the only grounds on which a person can file for divorce is no fault. State courts will never assign fault to one party or another during a divorce.

To get a divorce in Colorado, you must show the marriage is irretrievably broken. This is the only grounds for divorce in Colorado. Both parties must affirm under oath that the marriage is irretrievably broken, or one spouse must claim it and the other must not deny it. Other requirements are that the petitioner has lived in Colorado for at least 90 days prior to filing. If the case involves a minor child, the child must have lived in the state for at least 180 days. Unless the courts find evidence proving otherwise, it will generally agree to hear the no-fault divorce petition.

When to Hire an Attorney

The courts in Colorado will not take fault into consideration when determining aspects of a divorce order such as child custody, child support, alimony or property division. The courts will instead use other methods to make these decisions, such as equitable distribution laws. Equitable distribution means the courts will split marital property according to what is fair, not necessarily what is equal. This often means the spouse that earned more money during the marriage will get to keep more marital property upon divorce.

A divorce attorney can help you navigate Colorado’s no-fault divorce laws. A lawyer can use the state’s divorce laws to your advantage as much as possible, arguing your side of the case before a judge, if necessary. An attorney could also help you during pretrial events such as mediation to improve the odds of settling your case while avoiding a trial. If you need assistance proving an irretrievably broken marriage, a lawyer can help you with this task in Colorado.



Bad Social Media Habits to Avoid During Your Divorce

Posted in Divorce on October 14, 2019

Updating your friends and family about your divorce on social media may seem innocent enough…until your ex-spouse brings printed-out tweets to court to use as evidence against you during a custody battle. What you post on social media is not privileged information. It is available to the public and can be used against you during a divorce case. Be careful what you post on Facebook, Instagram, Twitter and Snapchat – or stay off social media altogether until a judge has finalized the split. A bad social media habit could end up influencing a judgment against you.

Criticizing Your Ex

Ranting about your ex-spouse may make you feel better, but try to avoid doing it on social media. Making your criticisms public for the world to see could come back to hurt you during your divorce. If your remarks go as far as to threaten your ex-spouse, spread false rumors about him or her, or criticize his or her abilities as a parent, it could enter your case as evidence against you. Inflammatory remarks could also incite your spouse into making the divorce more difficult for you that it has to be. Remember, deleting a social media post or deactivating your account will not be enough to erase what you post. An investigator can still access deleted activity.

Joining a Dating App

It may be in your best interest to wait until after a judge has finalized your divorce to join a dating app or site such as Bumble, Tinder or Hinge. Joining one of these sites while still married could be proof of infidelity, even if you have separated from your spouse. Although Colorado is a no-fault state and will not take infidelity into account during a divorce, a judge may assess whether it is appropriate to have the kids around new partners in a custody case. The same tip applies to changing your relationship status on Facebook. Wait until after the divorce to bring new partners into the picture – at least publicly.

Showing Off New Purchases

A key concern during most divorce cases is property division. Colorado is an equitable division state, meaning a judge will divide marital assets based on what appears fair for each spouse. If you try to diminish your income on paper by purchasing items such as sports cars or vacation homes, do not post about it on social media. Your spouse could use these updates as proof that you are not being honest about how much you make. If a judge believes you guilty of hiding assets, it could be detrimental to your side of the divorce case.

Posting Party Pics

It can be tempting to show off how well you are doing post-split with photos or videos of you partying, but avoid posting anything like this to social media sites. Your spouse could use pictures of you at a party or club to degrade your character during a custody battle. Your spouse may be able to use it as proof of substance or alcohol use on your part – habits that will not impress a judge trying to determine which parent is most responsible. Your spouse could even take a casual photo of you having a beer at a baseball game out of context for custody purposes, so be careful what you and your friends post.

Sharing Location Information

Avoid checking into places such as bars, casinos, strip clubs or the hottest new restaurant on social media sites during a divorce. A history of location sharing in such establishments could serve as proof that you are an irresponsible parent during a custody dispute. It could also serve as proof of your financial stability if you are trying to fight for spousal maintenance. Tell your friends not to tag you in any location updates or photos. Everyone in your life should be on the same page about what not to post on social media. Going dark on social media for a few months during your divorce can be well worth the break. It could help you avoid serious pitfalls.

Can an Ex-Wife Claim Money After a Divorce in Colorado?

Posted in Divorce on October 14, 2019

Property division is one of the key issues discussed during a divorce case in Colorado. Property refers not only to the family home, but also income earned, bank accounts, savings and retirement funds. If you are getting a divorce, you may wonder how much of your income – if any – a judge will award your ex-wife. You may not realize, however, that your ex could also be eligible to claim money you make after a divorce. It is not always possible to cut your ex-spouse off financially, even after the finalization of a divorce.

Colorado Property Division Laws

Any money earned among spouses becomes marital property in the eyes of the law during a divorce case. In Colorado, the courts require equitable division – property division that is fair but not necessarily equal. Rather than splitting marital property down the middle, the courts in Colorado will assess the situation and rule on division according to what is fair for each spouse. If one spouse gave up a career to care for children, for example, that spouse may receive a larger portion of marital property than the other spouse.

A judge will look at several key factors when determining how to split marital property, including each party’s income, economic circumstances, which spouse gets the family home and child custody. Marital property includes all assets, income and debts the couple acquired during the marriage. Anything brought into the marriage by each spouse will remain separate property and will not become part of property division. Any money earned by one person during the marriage, however, may end up split between both spouses in a divorce. High asset divorces are especially complicated and you should speak with a high net worth divorce attorney to ensure the assets are fairly divided.

Spousal Maintenance in Colorado

A judge may award your ex-wife a portion of your income even after a divorce if she qualifies for spousal maintenance (alimony). Spousal maintenance orders one spouse to pay another a monthly or one-time sum. The goal of spousal maintenance is to keep both spouses’ quality of life the same as it was before the divorce. If you can afford to pay alimony and your ex-wife needs financial support, you may end up paying her monthly in maintenance.

Spousal maintenance levels the playing field between you and your ex-spouse post-divorce. It may not seem fair to have to pay your wife money you earn after the divorce, but if a judge deems it necessary, you will have to comply until the term of spousal support ends. A judge may give your ex-wife a set amount of time to acquire job training or experience that will allow her to support herself, or else make you pay alimony until your ex-wife remarries. Alimony could be permanent if the marriage lasted over 10 years and the judge deems it appropriate.

Calculating Spousal Maintenance

A judge in Colorado will look at certain factors when deciding whether to award alimony. The two most important are each spouse’s income and the length of the marriage. Although a judge will have the ultimate discretion in awarding spousal maintenance, Colorado law suggests an equation to come up with a fair amount: 40% of the parties’ combined adjusted gross income, minus the lower-earning spouse’s monthly adjusted gross income. When the couple’s joint income is $10,000/month or less, the formula will use an 80% multiplier. If it is higher, the judge will use a 75% multiplier.

For example, if you and your ex-wife earned $14,000 together before the split, a judge may multiply this by 40% (0.40) to get $5,600, then subtract the lower income. If your wife earned $4,000 per month, your spousal maintenance amount would be $1,600 per month. The judge would then apply a 75% multiplier against $1,600 for a final amount of $1,200 in maintenance. Depending on you and your ex-wife’s income, the equation may look slightly different in your divorce case. Speak to a divorce attorney to find out whether your ex-wife will be able to claim money after the split.

Is it Better to File Bankruptcy Before or After Divorce?

Posted in Divorce on September 17, 2019

A typical divorce case does not exist. Each case is unique, with complex elements such as child custody, spousal support and the division of assets setting them apart. One matter that could complicate a divorce case in Colorado is the desire to declare bankruptcy. Whether you should file bankruptcy before or after your divorce depends on your unique circumstances. If you are considering filing for bankruptcy at the same time as a divorce case, speak to a qualified and local divorce expert in Colorado for counsel.

Chapter 13 vs. Chapter 7 Bankruptcy

The right solution for you will depend on many factors, including the type of bankruptcy you wish to file. The two main types of bankruptcies for individuals are Chapter 13 and Chapter 7. A Chapter 13 bankruptcy is suitable for people who wish to reorganize their debts and assets, while Chapter 7 will liquidate assets and use them to pay off debts. If you have limited income and know you cannot repay your debts, Chapter 7 might be the right choice. If you believe debt reorganization and a payment plan are all you need to dig yourself out of debt, choose Chapter 13 instead.

The type of bankruptcy you choose can make a difference in your divorce case. While you will eliminate debts with both types of bankruptcies, you may want to file at different times depending on the situation. If you wish to file for Chapter 13 bankruptcy and begin a 3-to-5 year repayment plan, for example, it may be best to file after the divorce. Filing before divorce could mean you and your soon-to-be-ex spouse must work together to keep up with the repayment plan for the next few years. If you do not wish to stay connected to your ex-spouse in this way, file Chapter 13 bankruptcy after a judge finalizes your divorce.

If Chapter 7 is a better fit for your financial situation, you may want to file for bankruptcy before your divorce. This can erase marital debts and liquidate assets before you and your spouse enter into property division negotiations. Filing before your divorce can make for a simpler property division process. It can also help you start with a clean slate once you finalize your divorce. You should wait to file for Chapter 7 until after your divorce, however, if you desire this type of bankruptcy but do not qualify because your income is too high. Waiting until after your divorce could lower your assets enough to qualify for Chapter 7 bankruptcy.

It Is Generally Best to Deal With Debts Before Divorce

Although the answer is not one-size-fits-all, in general, your goal during a divorce case should be to make the process as simple and streamlined as possible. A simple divorce process will save you time and money. Eliminating assets and debts that could create conflict between you and your spouse can simplify your divorce. If you have a mountain of debt, filing for bankruptcy before a divorce could eliminate an issue you would otherwise have to negotiate with your spouse. Filing bankruptcy before the finalization of your divorce could make the subsequent process simpler for all parties involved.

Speak to a Divorce Attorney in Colorado

The information here barely scratches the surface of bankruptcy and divorce. These are complex topics that deserve attention from an attorney. If you or your spouse are considering filing for bankruptcy and divorce around the same time, speak to a lawyer before making any decisions. What is best for you, your situation and your family will depend on the specific circumstances. For some people and financial situations, filing for bankruptcy before a divorce may make the latter process simpler. In other cases, filing after divorce may make the most sense, so the parties can first go their separate ways and then deal with finances. It is important to contact a divorce lawyer for tailored advice before you make any decisions.


Division of Vacation & Sick Time During a Divorce

Posted in Divorce on September 8, 2019

Dividing assets during a divorce is often one of the most complicated aspects of a split. Assets can include not only physical property such as a home or vehicle but also financial assets such as bank accounts, retirement savings, stocks, bonds and paid vacation time. During a divorce case in Colorado, the courts require both spouses to disclose their accrued paid leave on the Sworn Financial Statement Form. Vacation, sick and personal leave could be a substantial asset one or both parties own. This could change the division of assets during a divorce case.

Vacation and Sick Time as an Asset

The Sworn Financial Statement Form is a Colorado-Supreme-Court approved document that asks for specific salary and asset information. It requires each spouse to state whether he or she has a job, how many hours he or she works, pay rate, type of work, monthly gross income and miscellaneous income. It also asks for a breakdown of monthly expenses, including housing, utilities, food and health care costs. Finally, it requests details about the person’s assets, real and financial.

  • Real estate
  • Motor vehicles
  • Recreational vehicles
  • Cash on hand
  • Checking and savings accounts
  • Life insurance
  • Furniture and personal property
  • Stocks and bonds
  • Retirement funds
  • Separate property

The form also has a box for miscellaneous assets. It is here the spouse must check “Accrued Paid Leave (sick, vacation, personal)” if this asset applies. The Colorado courts may see this type of asset as one that is divisible during a divorce case. Paid leave could amount to a substantial sum depending on the spouse’s income and available leave. Someone who earns $10,000 a month, for example, could have $10,000 in unpaid leave assets if he or she has a month’s worth of unused time off. Thus, each spouse needs to be honest in recording accrued leave on the financial form.

How Does Colorado Divide Accrued Leave in a Divorce?

Each state divides property differently in divorce cases. Colorado is an equitable division state, meaning the courts will rule in a way that is fair, but not necessarily even. Rather than automatically splitting marital assets 50/50, the courts will analyze the unique case and determine asset division accordingly. The courts will look at factors such as each spouse’s economic circumstances, physical custody of children and the value of the properties in deciding asset division.

When it comes to dividing vacation and sick time, the Colorado family courts will only view accrued leave as a divisible asset if the person can cash it out. If the spouse has a right to request payment for this time from an employer, the courts will view it as part of marital property. Thus, it will be eligible for division along with the rest of the couple’s marital property (as long as the spouse accrued the time during the marriage, not before marriage or after separation). If the spouse cannot receive time off as a cash payment, however, it will not enter the case as a divisible asset. Each spouse will need to examine his or her employment agreement to find out whether the right to cash out accrued time off exists.

In cases where accrued time off does count as marital property, the courts can view it as part of that spouse’s income for calculations such as alimony and child support. The courts may also divide it between each spouse as part of a property division agreement. If the couple can agree to property division without court intervention, a judge will typically sign off on the arrangement the couple created. If the couple cannot compromise, however, the matter will go to a judge to decide. A judge in Colorado may decide to give none, part or all of one spouse’s accrued time off to the other spouse in a divorce case.




What Is the Divorce Rate in Colorado?

Posted in Divorce on August 23, 2019

Divorce has to do with much more than where you live, but according to statistics, location could predict whether your marriage survives. Public record data collection gives an overview of the divorce rates in each state and city in America. Lists of the places with the highest divorce rates become a cause for concern for many married residents – especially in Colorado. Colorado is one of the top 10 worst states for divorce as of 2018, according to U.S. News.

Colorado’s Divorce Rate: 13.52 Per 1,000 Married Individuals

The state with the highest divorce rate per 1,000 married people is Arkansas at 17.14. The list then moves to Alabama, Kentucky, Oklahoma, Idaho, West Virginia, Georgia, Tennessee, South Dakota and – in 10th place – Colorado. Colorado’s divorce rate based on data from the American Community Survey was 13.52 in 2018. Some of the states with the lowest divorce rates are Hawaii, New York and Vermont. Hawaii is the lowest, with a divorce rate of 7.67 per 1,000 married individuals.

Colorado also made the list of the top 50 cities with the highest divorce rates. Aspen, Colorado has a divorced population of 22.9%. Aspen is currently home to 1,462 divorcees. Aspen has a married population of 31.4% and a median household income of $64,594. Other cities with high divorce rates include McMinnville, Tennessee (23.7%); Brattleboro, Vermont (24.8%); and Truth or Consequences, New Mexico (26.8%). Aspen has the highest divorce rate out of all the cities in Colorado.

The other Colorado cities with the highest divorce rates (in order) are Sheridan, Gypsum, Lochbuie, Pueblo, Edgewater, Cortez, Delta, Salida and Avon. The overall Colorado divorce rate based on 2013 to 2017 data is 11.9% – exactly one percentage point higher than the national average of 10.9%. The unusually high number of divorces in Colorado could be an ominous sign for married residents.

Divorce Rates Per Country

The United States ranks number two on the list of countries with the highest divorce rates, according to the Organization for Economic Cooperation and Development. It is second only to Russia in terms of dissolved marriages. The crude divorce rate in the United States is currently 3.2 divorces per 1,000 people. The country with the lowest divorce rate is Chile, with just 0.1 divorces per 1,000 people. The United State’s crude divorce rate is higher now than it was in 1970. From 1995 to 2016, however, the divorce rate fell slightly in the United States, as well as in several other countries.

Why Is the Divorce Rate So High in Colorado?

Divorce rates calculate the number of divorces compared to the overall population and number of married couples. They do not explain the reason behind so many marital splits. Yet it may be possible to predict and even prevent a divorce by studying common risk factors present in marriages before divorce. Analyzing the reasons most couples in Colorado end up citing irreconcilable differences could help you notice warning signs in your own marriage.

  • Marrying young
  • Age differences between the spouses
  • Living together before marriage
  • Each spouse’s education level
  • Divorced parents
  • Prior marriages
  • Lack of children
  • More than three children
  • Unemployment
  • Money problems
  • No religious affiliations

Where you live could also play a role in whether or not your marriage lasts. Living in Arkansas, for example, means your odds of getting a divorce are statistically higher than in all other states. Moving to the tropical paradise of Hawaii, on the other hand, could make all the difference. Your risk of divorce would be much lower – perhaps in correlation with increased happiness within your marriage. Divorce rates may not have anything to do with location, but there may be a reason divorce is more common in some states than others. If your relationship is on the rocks, consider moving to a less divorce-friendly state than Colorado.

Can I Stop a Divorce If the Paperwork Has Already Been Filed?

Posted in Divorce on May 10, 2019

Not all couples in Colorado achieve amicable divorces. Some couples both agree to the divorce, but not to its terms. Others have one spouse striving for reconciliation. In other cases, a couple files for divorce only to change their minds later. If you need to recall a divorce petition you or your spouse has already submitted to the courts in Fort Collins, you will need to follow a specific legal process. Act fast and contact a Fort Collins divorce lawyer – otherwise, it might be too late to stop the wheels you have set in motion.

If You Filed – Retracting the Petition

As the spouse that filed for divorce, if you change your mind you can typically request a dismissal. You have until the time a judge enters a final judgment on the petition to request a dismissal. The county clerk can give you the dismissal forms you will need to submit. If you file your dismissal form before your spouse has responded to the petition, you do not need to do anything more. The courts will dismiss the petition and you will remain married. If your spouse has already issued a response, however, you both must sign off on the dismissal form.

Your dismissal form officially files a motion asking the courts to dismiss your petition without prejudice. Filing this motion may take a simple letter expressing the need to stop the divorce, or else official paperwork depending on the rules of your jurisdiction. Explain in your motion whether your spouse has responded to the petition or not. You may need to appear at a hearing to explain why you want to dismiss the petition, in some situations.

If You Did Not File – How to Contest a Divorce

If you were not the spouse that filed for divorce, you generally cannot stop the process unless you convince the filing spouse to order a retraction. The only right you have once your spouse has filed the paperwork is to contest its terms. You may need to contest to the divorce if your spouse has issued terms you do not agree with, such as how to divide property or who will have custody of children. To contest a divorce, you must respond to the divorce papers your spouse served upon you within 21 days of receipt.

Respond to the divorce papers with terms of your own. Explain that you wish to contest the divorce’s current terms. Within 42 days of your spouse filing the papers, both of you and your lawyers will meet with a judge during an informal meeting called an Initial Status Conference. Here you can go over major contested issues in the divorce. You and your spouse may be able to work together at this point to agree on better divorce terms, or else you will have to take the case to court.

If you did not do the filing, you cannot stop a divorce from happening unless you reconcile with your spouse. You may only contest the divorce, which could make it last months or years longer than necessary, along with greater legal costs. Only the person that filed the divorce petition has the right to stop the process in Colorado. Talk to a local divorce attorney for more information and advice.

Stephen Vertucci Listed as Top 3 Divorce Lawyers by Three Best Rated® for 2019

Posted in Divorce,Family Law on March 19, 2019

Stephen Vertucci was recently ranked as the top divorce attorney in Fort Collins, CO by Three Best Rated®. Qualifications for ranking as a top 3 divorce lawyer in Fort Collins included a rigorous 50-Point inspection ranging from checking reputation, history, complaints, ratings, satisfaction, nearness, trust, cost and general excellence.

Three Best Rated® was created to rank top businesses in all cities across the US. They are “focused on best, not the most” when it comes to hand-selecting local businesses. It is truly an honor to be acknowledged as one of Fort Collins best. Our law office strives to make every client happy, everyday. We hope to continue giving our clients the best possible services for all family law needs. We specialize in divorce, child custody cases, child support cases, and more.

Stephen began practicing law in Colorado since 2007 and has focused his practice primarily on family law in Northern Colorado since that time. Stephen is a fan of the local art scene in Fort Collins and on his free time enjoys weekend road trips with his family. To learn more about Mr. Vertuccis hobbies and career path, read his bio here.

We know our clients deserve the best and we strive everyday to be the representation you need in order to protect your family. For more information about our mission, call today or visit the links below:

Best Divorce lawyers in Fort Collins

Who Gets Pet Custody in a Colorado Divorce?

Posted in Divorce,Separation on March 15, 2019

Studies show that pet ownership has increased in the last few decades. Since the first National Pet Owners Survey in 1988, pet ownership has gone up by 12%, from 56% of U.S. households to 68% in 2018. Studies also show the increase in pet ownership correlates to a decrease in younger generations having children. The outcome? Many couples getting divorced today treat their pets like their children – creating intense pet custody battles during Colorado divorce cases.

Deciding Your Own Pet Custody Arrangement

Pet custody is like many other aspects of a divorce case in that it does not have to fall to the decision of the courts. Couples will have the option to arrange their own pet custody agreement before a judge intervenes. This is almost always preferable than taking a pet custody case to trial. Trials can be unpredictable, and you may end up losing custody of your pet altogether, rather than settling on a compromise with your ex-spouse.

First, try to work out an agreeable arrangement between you and the other pet parent. Create a plan for the pet as part of how you and your spouse will separate property. The courts will always try to approve divorce arrangements a family creates before intervening. If you and your ex-spouse cannot work it out alone, consider hiring a mediator to help with negotiations. Mediation is not a trial. It is a meeting between you, your spouse, and an unbiased third-party mediator to act as a judge. You may also have attorneys present, if desired.

Mediation can help you resolve a pet custody battle without needing to take your case to court. You and your spouse can both present your cases, and the mediator will make a final suggestion as to how the issue should be resolved. You and your ex-spouse may either accept the suggestion and make it your official divorce contract, or reject the solution and proceed to the next step – a court trial. If your pet custody case does go before a judge, know that the courts will see your cat or dog like personal property, not like a child.

Pets as Property in Colorado

You may not see your pet as just another piece of owned property, but that is how the Colorado legal system views it. Your pet may be like a beloved family member, but in the eyes of the law, he or she is just another asset of the marriage. Thus, Colorado’s property division laws will preside over your pet custody case, not child custody laws. Here is a breakdown of how property division works in Colorado.

  • Separate vs. community property. Separate property is any and all assets either spouse possessed prior to the date of marriage. Community property, on the other hand, is assets the couple obtained during the course of the marriage – or assets the couple legally decided to share, such as joining two separate bank accounts.
  • Equitable distribution rules. Colorado is an equitable distribution, or common law, state. The courts will not split community property down the middle, in a 50/50 division. Instead, the courts will typically allot a greater portion of shared assets to the higher-earning spouse in the relationship.
  • How the court makes marital property decisions. In general, the courts cannot touch separate property. Each spouse will maintain ownership of his or her own separate properties. The state’s equitable division rule will only apply to community, or marital, properties and assets.
  • Fault vs. no-fault divorce. Colorado is a no-fault divorce state. Your spouse cannot use your fault for the split against you during property division or child custody disputes. In other words, even if you are at fault for causing your divorce, this will not automatically bar you from pet custody. Instead, the courts will split property in an equitable manner.

If you owned your pet prior to the marriage, odds are the courts will view the pet as your own separate property. Custody of the pet will likely go to you and not your spouse. If, however, you and your spouse purchased or adopted the pet after marriage (or obtained the pet jointly prior to marriage), the courts will determine custody as it would any other piece of property, in most cases.

The Answer Depends on the Court

Colorado does not have any specific pet custody laws. This makes the matter somewhat unclear and unpredictable. The courts will determine pet custody on a case-by-case basis. Some judges may look at a pet purely as property, and divide it along with other pieces of property, such as a residence or income. Other judges, however, may consider some of the child custody rules when determining a pet custody dispute.

Your judge, for example, may examine what is in the best interests of the pet to determine whether you or your spouse should have custody. The judge may listen to both sides of the argument, assess what would be best for the pet in question, and determine a sole or joint custody arrangement based on the facts of your case. How the courts treat your particular situation depends entirely on the judge, since no legal governance exists for such situations.

Can You Improve Your Chances of Securing Pet Custody?

It may be difficult to predict how a pet custody battle will go, but you can improve your chances of a satisfactory outcome by hiring a lawyer. Hiring an attorney because of your pet may seem unnecessary, until you realize the chance of your pet going to neither you nor your spouse exists. It is in the court’s power to order that the pet goes to a third party if you and your spouse cannot work out an agreement between yourselves. A judge may choose not to intervene in these situations, and decide to send the pet to a separate home instead of assigning custody.

If custody of your pet post-divorce is important to you, hire a divorce attorney to represent you during mediation or a divorce trial. A lawyer during your mediation can improve the odds of you and your spouse coming to a satisfactory compromise on pet custody and visitation rights, without needing to go to court. If your case does proceed to trial, a lawyer can state your claim to the pet through property division and/or custody laws. Your lawyer may be able to prove to a judge that you are the owner that will do what is best for the animal.

Proof of your position as the right choice may include demonstrating that you were the one who took primary care of the animal during the marriage. If you were the one who spent more money on the pet’s healthcare, more time walking or feeding the pet, and more attention on the pet, you could win primary custody – even if your spouse was the one who initially purchased the animal. Your attorney can set up witnesses to testify to your care of the pet, as well as collect evidence such as vet bills.

If you are currently facing a potential pet custody battle with your spouse during a divorce case, focus on what is best for your pet. Try to come to an agreement together, with help from lawyers and mediators. Neither spouse should use a pet to hurt or manipulate the other spouse.

If you need help getting custody of a pet you believe should be yours, trust an experienced attorney to make your case for you during mediation or a trial in Colorado.