THE REPRESENTATION YOU NEED IN ORDER TO PROTECT YOUR FAMILY
Posted in Separation on August 15, 2019
Spousal support is a court-ordered arrangement in which one spouse of a divorce pays another – either in a lump sum or monthly payments. A judge in Colorado may award spousal support during a divorce case that involves an income disparity between the spouses. If one spouse stayed at home to care for the kids while the other got an education and a career, for example, the first spouse may be eligible for spousal support if he or she is in financial need. The duration of the award will depend on the situation.
Who Qualifies for Spousal Support?
Colorado’s spousal support law, Colorado Revised Statutes Section 14-10-114, states that a divorce court may grant this type of award when one spouse needs financial support and the other has the ability to provide this support. In Colorado, the courts do not look at fault for the divorce when determining spousal support. It will not matter, for example, if one spouse cheated on the other. Instead, the courts look at each spouse’s financial standing to determine the eligibility of spousal maintenance.
- Length of the marriage
- Both incomes
- Each spouse’s financial resources
- Education levels
- Employment history
- Marital property distribution
- Child custody arrangement
- Financial needs
The courts will consider many factors in determining a spousal support award. However, they will mainly analyze whether one spouse will be at a financial deficit post-divorce, while another will have enough to offer financial relief. If this is the case, the spouse with more financial stability may have to pay the other spouse temporarily or permanently. Not all divorce cases result in spousal support. Even cases involving financial need may not receive spousal support depending on the circumstances.
Calculating Spousal Support
The courts in Colorado will calculate the amount of a spousal support award using a complex percentage system. For example, they will take 40% of the higher-earning party’s monthly gross income and subtract half of the lower earner’s monthly income. If the higher earner has a gross monthly income of $10,000, for example, and the lower earner makes $5,000, the spousal support award would be $1,500 ($10,000 x 40% = $4,000; $5,000 x 50% = $2,500; $4,000 – $2,500 = $1,500). The percentages can depend on the length of the marriage. An attorney can help you calculate your potential spousal support arrangement.
The Length of a Spousal Support Arrangement
If a judge deems spousal support appropriate in a divorce case, he or she may order a temporary or permanent award to one party. Temporary awards are more common. They do not last for the rest of the recipient’s life. A temporary support order may last until the divorce is final if one spouse requested spousal maintenance during the divorce process. In other cases, a judge may make a temporary order part of the divorce decree. Colorado has a lengthy and detailed list of how long spousal support will last if the couple was married at least 3 years but less than 20.
- 3 years: 31% for 11 months
- 5 years: 35% for 21 months
- 10 years: 45% for 54 months
- 15 years: 50% for 90 months
- 20 years: 50% for 120 months
These guidelines only apply if the couple makes $240,000 or less in combined income. Otherwise, the courts will calculate the length of the order in months based on marriage length. If a marriage lasted longer than 20 years, the courts will have the power to award spousal support for a specific number of years or indefinitely. A judge’s decision will depend on the factors of the case. The list of spousal support lengths for different marriage terms under Colorado law is not a guarantee that the courts will issue this type of award.
Spousal Support Modifications
If the spousal support becomes part of the divorce agreement, it will remain in place until the deadline passes. Either spouse will have the right to request a spousal support modification if one party’s financial status changes. If the spouse giving the maintenance loses his or her job, for example, the courts may suspend or terminate the support order early. The party making the request must have a valid reason for the judge to grant a modification order.
Posted in Separation on July 2, 2019
If the tension in your relationship becomes more than just a rough patch, separation might be a positive choice for your family. Separation is not divorce. You and your spouse will remain legally married, with all the benefits that come with a marriage on paper. However, separation may impact matters such as finances and legal rights according to the type you select. Separation could be the key to continuing your relationship, reconciling your differences or deciding it is time for a divorce. It could also be the ideal permanent choice depending on your situation.
Trial separation could be the right move if you are still unsure about the future of your relationship. If reconciliation may be possible, a trial separation period could help you and your spouse see things more clearly. During trial separation, you and your spouse will live in separate places, but everything else remains legally the same. Legal rights such as parenting time and property ownership will not change.
If you and your spouse decide to continue sharing a bank account or child custody, put the terms of your trial separation agreement in writing. You do not need to file your agreement anywhere or make it official, but having both signatures can help you prevent legal trouble in the future. That way, your spouse cannot accuse you of stealing money or claiming property you do not own. The terms of your agreement will be clear. However, in the court’s eyes, you and your spouse will still jointly own bank accounts, debts and assets.
Permanent separation, as the name implies, is a more permanent split. This might be the best option if you and your spouse decide it is time to permanently break up – often after unsuccessful reconciliation during trial separation. Permanent separation has more legal ramifications than a temporary split. In most states, permanent separation will officially distinguish between you and your spouse’s properties. The debts you accrue and money you make while permanently separated will become your separate property rather than community property with your spouse.
If you incur debts for things such as paying the mortgage on your marital home or buying groceries for the kids, however, the courts in Colorado will most likely view these as community property debts rather than yours alone, even while permanently separated. Keeping track of the date of your legal separation is important, as this date can have significance during a legal separation or divorce case. Until you take your spouse to court or vice versa, a permanent separation will not be a legal one. The courts will not intervene with your arrangement.
Making your separation official can have certain legal benefits. Achieving a legal separation means the family court in your county will change your legal status from married to separated in the system. A legal separation is similar to a divorce in that the court will grant orders about property division, child custody, child support and other important matters; however, you and your spouse will still be technically married. This distinction can be important for issues such as health insurance benefits if you or your spouse wish to retain them through your current agreement. Many couples prefer separation to divorce.
Which Is Right for You?
Choosing the right type of separation depends on your unique relationship. Do your best to communicate honestly and openly with your spouse. Explain your needs, whether that is just to have some time apart to think or to make your separation legal in a Colorado courtroom. Whichever course of action you decide, consider consulting with a lawyer about your rights. A Fort Collins family law attorney can help you choose the ideal living situation for you, your spouse and your kids. A lawyer can also help you through the legal process should you decide to opt for legal separation or divorce down the road.
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.
Posted in Separation on October 3, 2018
When it comes to ending a marriage, most people consider divorce as the first option. However, another option is annulment, a process through which the marriage never legally existed. This can seem like an appealing option when other factors make divorce unattractive for a couple.
However, an annulment is a distinct legal procedure that has different requirements than a divorce. Fully understanding annulment in Colorado can help you make the correct decision when deciding the best way to end your marriage.
Divorce and Annulment in Colorado
Like many other states, Colorado allows for “no-fault” divorce. So long as married couples follow the correct period of separation procedures, they may move forward with a no-fault divorce, with no need for other circumstances to come into play.
When it comes to annulment, Colorado does not have any procedures that use that name. However, the state does allow for a court action known as a “declaration of invalidity.” This order operates roughly in the same manner as an annulment, stating that your marriage was not valid – ending your legal obligations without a divorce.
Legal Grounds to Obtain a Declaration of Invalidity
Unlike the ability to file for a no-fault divorce, you must meet specific requirements to file and successfully obtain a declaration of invalidity. Under Colorado law, those circumstances are:
- Either spouse lacked the intellectual ability to consent to marriage due to drugs, alcohol, or another incapacity
- Either spouse could not physically consummate the marriage, but the other spouse didn’t know that when the marriage took place.
- Either spouse was under the legal age of marriage
- Either of the spouses was compelled to marry
- Either of the spouses entered the marriage because of a joke or because someone dared them
- One spouse married due to fraudulent acts or misrepresentation of the other
- The marriage was void because of bigamy, polygamy, incest, or another violation of marriage law
In addition to meeting the requirements for a declaration of invalidity, a spouse must file a petition within a specific time frame. You have 6 months to file for annulment on the grounds of lack of mental capacity or the claim of duress, dare, or fraud; 12 months for unconsummated marriages; and 25 months for violations of the age of consent. Claims of incest, bigamy, and polygamy have no time limit for filing a court petition.
How Long Does an Annulment Take?
Not only do declarations of invalidity have strict legal grounds for filing, the involved parties will likely also need to provide proof of the grounds for annulment. This can involve lengthy proceedings to justify the annulment request and additional legal preparations, even when both parties agree that they want to have their marriage declared invalid.
In contested annulments, the procedure can take even longer, quickly stretching out the timeline beyond that of a standard divorce. There will also be the consideration of applicable child custody, support, and visitation as would occur in a divorce. Unlike some other states, Colorado allows for distribution of any marital property through annulment, even though there is no legal marriage in the first place.
In contrast, because of Colorado’s allowance of no-fault divorces, a court can process a divorce proceeding much more quickly than an annulment – even though popular perception seems to be the opposite. For those who are hoping to find a quicker alternative to divorce, an annulment may not be the way to go.
However, certain circumstances may mean that annulment is the better option for ending your marriage. Consulting with an attorney can help you understand if you have the legal grounds for an annulment, as well as determine which procedure will better suit your specific needs.
Posted in Separation on January 26, 2018
Both forms of legal action prohibit contact by one party to the other. One of the main differences is that restraining orders often last up to one year and are temporary. No-contact agreements are binding contracts that can be removed only by the district attorney or the judge who is working the case. Another contrasting factor is the intensity of the punishment.
Divorces in Fort Collins vary greatly in nature, reason, and repercussions. Some divorces may even result in one of the spouses wanting official, legal reinforcement to keep the ex-partner away. Such reinforcement could be in the form restraining orders or no contact orders. These orders keep one spouse away from the other, as well as away from places that the requesting spouse frequents often. They may also ban texting, calling, messages, or any social media contact. If the two people accidentally run into each other, the person who was there last or who saw the other first is required to immediately leave.
For a restraining order, if the restrained individual attempts to contact the other or violates the order in any way, he or she can be arrested or fined. However, when someone violates a no-contact order, the one who is violated is not permitted to immediately enforce action by the police. Such a case would require filing a citation with the court. Though the initial punishment seems less severe with no-contact orders, they incur more intense final punishment than restraining orders. If a no-contact order is violated, the violator may spend up to six months in jail. This individual would also have to pay the attorney fees for the other party.
Yet another difference between a restraining order and a no-contact agreement is the circumstance that requires such action. A restraining order is usually filed for civil reasons such as divorces, relationships that ended poorly, or any other situation where a person feels threatened. A no-contact order is usually upheld because of criminal reasons. For example, if the victim of a crime were testifying against the criminal in court, they would most likely file a no-contact agreement that would last through the trial and even afterward. Often, criminal charges must be filed already or be in process for a judge to order a no-contact agreement.
The laws on restraining orders and no-contact agreements vary by state, but the main idea is that no-contact agreements exist to punish someone who has already caused harm and to prevent further harm, whereas restraining orders exist to prevent someone from causing harm in the first place. Restraining orders can also be adjusted depending on the situation at hand and how threatened the person who filed the order currently feels.
Both forms of action can be applied to help protect the mental and physical safety of an individual. Laws exists to protect the interests of both parties, prevent overreach and misapplication, and clarify terms. Anyone seeking to file either action, or currently subject to a restraining order or no-contact order should seek the advice of legal counsel.
There are many steps to a divorce case in Colorado. The final stage is the Permanent Orders Hearing. During this conclusive hearing, the judge reviewing the divorce will make the final determinations concerned marital asset and debt division. The judge will also determine maintenance awards, such as spousal support or alimony. If the divorcing couple has children, the judge will also make a decision concerning parenting times, custody, child support, and each parent’s ability to make major decisions for the children. Depending on the situation and each divorcing spouse’s behavior, the judge may also rule on one party’s obligation to pay the other party’s legal fees.
The determinations made in a Permanent Orders Hearing are final and binding, and these hearings can sometimes last several days before reaching a conclusion. Once the Permanent Orders Hearing is complete and the judge puts his or her final orders in writing, the court will issue a decree of dissolution and formally end the marriage.
Preparing for the Permanent Orders Hearing
The Permanent Orders Hearing happens after all other proceedings in the divorce case. Divorces in Colorado can be complex, especially if there is bad blood between the divorcing spouses. Unfortunately, some divorcing couples act harshly out of spite and anger, escalating divorce proceedings to contentious levels. The first step in starting the divorce process is one or both spouses filing a petition for dissolution. If the couple mutually agrees to the divorce, has little shared property, no children, and both spouses agree that the marriage is irretrievably broken, the divorce may proceed much more quickly than more-complex contentious divorces or divorces involving vast assets or children.
Each spouse should secure a family law attorney to navigate the process. Each spouse will need to compile a great deal of documentation to establish ownership of shared property and assets as well as evidence of their individual financial security. The divorcing spouses may also need to supply evidence supporting their claims to full or majority custody of the couple’s children. Eventually, the divorce case will resolve all these issues, and the Permanent Orders Hearing is simply a formal end to the case in which the judge makes an official ruling on all the elements of the couple’s divorce.
Why Do I Need an Attorney?
In some divorce cases, all the questions concerning Colorado child support, custody, division of assets and debts, and spousal support are already resolved before the Permanent Orders Hearing. If the divorcing couple files a full agreement, they can avoid needing to appear for a Permanent Orders Hearing. However, in any divorce case involving children or one spouse without legal counsel, the divorcing couple will need to appear for an uncontested Permanent Orders Hearing. During this hearing, the court will review the agreement to determine if it is in the best interest of the children and fair to the unrepresented spouse.
Even if a divorce case appears straightforward at first, it can quickly escalate into a complicated legal battle. Both sides in a divorce deserve and should secure reliable legal representation, so anyone considering divorce in Colorado should reach out to a family law attorney as soon as possible. Filing for divorce and gathering all the required evidence and documentation can seem daunting, and reliable, experienced family law attorneys will make the process much more bearable for everyone involves.
Maybe you’re in the beginning stages of contemplating a divorce, or maybe you’re getting ready to file an official motion. No matter what stage you’re at in considering a divorce, the idea of taking the next step can be scary. Knowing about the process can help put your mind at ease and prepare you for the road ahead. Here is what you can expect from the beginning stages of your divorce.
Serving the Papers
After meeting with a skilled divorce attorney, you will designate a third party who will serve the divorce papers. When serving your Colorado divorce papers, you have a few possible avenues. It’s important to note that you can’t personally serve papers. However, the state does allow these options:
- Serving by mail. One of the most obvious options is to serve your spouse by mail. If you choose this route, you have two options. The first is First-Class Mail, which would require your partner to sign for the package when he or she receives it from the mail carrier. The second is to send your package through Certified Mail with a return receipt requested. The return receipt is a green slip that your spouse signs acknowledging he or she received it, which is returned to you. If you cannot get your slip back within the specified time frame, you will have to elect another form of delivery.
- Process server. One of the more common methods is delivering the paperwork via proxy, or a process server. These individuals are professionals who will hand deliver the divorce paperwork to your spouse. The main advantage of using this method is that their training allows them to get the paperwork to your spouse as soon as possible. You can find them through your attorney or online.
- Acceptance of Service method. Technically, anyone over the age of 18 who isn’t directly involved in your divorce can deliver the paperwork. However, they must obtain a signed acceptance of service document that acknowledges receipt of the paperwork.
- Serving by publication. When all other attempts fail, your last avenue of delivery is publishing your petition in a local newspaper. You must, however, have permission from the courts to do so. In order to grant this permission, you must be able to show that you made a reasonable effort to serve your spouse the paperwork, using all other methods available. The courts will also require a copy of the newspaper notice and the run dates for their records.
If you’re dealing with a particularly contentious divorce scenario, you can talk to an experienced family law attorney about the best way to serve your Colorado divorce papers. It’s essential to deliver this paperwork adhering to the letter of the law using one of the options listed. When delivering the paperwork, you’re giving your spouse a notice to appear in court, as well as the opportunity to obtain representation and guidance through the legal process that’s to come.
A formal divorce proceeding can be daunting, but less so with a proactive and informed approach. Be sure to use one of these tactics when serving your spouse divorce paperwork.
When two people experience irreconcilable differences in a marriage, both parties typically want to complete the divorce process as quickly as possible. But this isn’t the case in every relationship. Sometimes, one party wants to stay married or delay the process by refusing to participate. If your spouse won’t agree to a divorce, there are ways around his refusal. In the U.S., no one can keep another person in a marriage. Work with a divorce or family law attorney to understand the process for divorce in your county.
How to File for Divorce in Colorado
Once you decide to file for divorce in Colorado, your spouse’s refusal to go along with it cannot stop you from submitting the paperwork to the right office. In Colorado, district courts typically hear divorce cases. Go to your local courthouse and obtain the proper forms needed to file for divorce – in most cases, these can also be found online. After you submit this paperwork, someone will have to serve your spouse, or notify him that you’ve filed for divorce. In Colorado, any person over the age of 18, the County Sheriff’s Department or a private party who specializes in this work can serve your spouse.
If your spouse isn’t agreeing to the divorce, he might dodge the serving process. In this case, you can request more time from the courts, or file again after 120 days have passed. In extreme cases, you could publish your intent to divorce in your local paper. This fulfills the serving requirement whether or not your spouse sees the advertisement. Once your spouse receives the notification, he or she has 30 days to respond. Refusing to respond will not stop the divorce process, but it could make it take longer.
Uncontested Divorce Cases
A divorce petition only signed by one spouse will go into default. A default divorce abides by the same rules as an uncontested divorce, which is one that both spouses agree upon. You will then attend a default hearing and fill out a decree of dissolution of marriage, which is the document that will grant your divorce upon a judge’s signature. This decree will also outline property and debt division, custody arrangements, and other important details of the divorce.
Have a family law attorney review your decree of dissolution of marriage before submitting it to the courts. A lawyer can help you protect your rights after divorce, and assist with any questions or concerns you may have. When one spouse refuses to participate in a divorce, the process can drag on longer than in a regular, uncontested divorce. Your spouse might decide to get involved in the process at any time, and disagree with your desired terms, which will lead to a contested divorce, and may require mediations and trials to come to an agreement. There is no telling how long a contested divorce case might take.
If your spouse continues to refuse involvement, the judge will sign off on your decree and your divorce will be official. In all 50 states, you have the option to file for no-fault divorce. In these cases, the courts will not consider fault when deciding how to divide property, assign custody, or determine spousal support payments. Instead, the courts will make decisions based solely on financial matters and the best interests of any children involved. Offering to file a no-fault divorce could persuade a reluctant spouse to agree to the divorce. Always discuss your options with an attorney before coming to a decision about how to file.
Custody battles are some of the most dreaded aspects of divorce cases in Colorado. No parent wants to fight for the right to have child custody – nor prove to a judge that he or she is a “good” parent. In Colorado, the law refers to child custody as “parental responsibilities.” When both parents agree on a custody plan, they skip this difficult and emotional part of divorce proceedings and a judge will simply approve the written agreement. It is important to understand what the court will look for in making this decision if it is up to a judge to decide the custody agreement between former spouses.
The child’s best interests are at the heart of everything a judge will decide during divorce proceedings. At the end of the day, this is what the judge will look at to make decisions, regardless of all other factors. One factor that could affect the child’s well-being is a family history of neglect, abuse, violence, and drug or alcohol use. The judge will examine each parent’s past behaviors and take them into account.
If one parent is a convicted criminal, has not been in the child’s life, or has a history of violence – the judge will likely award the other parent sole custody of the child. Sole custody gives one parent the right to make the decisions for the child, such as where the child will live and go to school.
The judge will also look at where the child would be living with each parent. In some cases, the judge may rule for the parent who is staying in the family home to have custody, because this is the environment with which the child is the most familiar. The judge is mainly looking for a safe, productive, and comfortable setting for the child. If you’re living on your friend’s couch during your divorce proceedings, the judge will likely not give you custody. If you and your ex-spouse live close nearby to one another, this can affect the arrangement. The judge might allow a more flexible time-sharing plan if there is not a large distance between the two homes.
The judge won’t necessarily ask a child which parent he or she would rather live with – although they have the right to, but the judge will take each parent’s relationship with the child into consideration. One parent may not have been as involved as the other parent, meaning the child would be more comfortable in primary custody with the more involved parent. If it appears that a parent is suddenly closer to a child during a divorce just to “win out” over the other parent, the judge will notice this and probably rule in the other parent’s favor. When the change of heart is sincere, the judge may award shared custody of children.
Child’s Age and Personal Preferences
The judge may take into account whether a child is an infant or toddler. If an infant is breastfeeding, for example, the judge will naturally want to keep the mother and child together. In divorces with older children, usually 12 years and older, a judge might ask a child for her preference. The judge does not necessarily have to go with what the child says, but she may take it into consideration.
Best Interests of the Child
Again, all child custody questions come down to one main answer – the child’s best interests. A judge can create a variety of different custody agreements to accommodate the child’s individual needs and concerns. Things such as a history of abuse might bar one parent from custody or even visitation rights, because it signals to the judge that the child might be at risk in this parent’s custody. A judge will carefully look at all relevant factors, decide what would be best for the child, and create a child custody agreement.
There may come a time when you need to make changes to your child custody agreement. Custodial and noncustodial parents can file for modifications to child custody in Colorado. The courts support safe and supportive living arrangement changes, and prefer these kinds of modifications to disruptive changes. The courts will only accept a child custody change if it is in the child’s best interest. If you believe you have the elements necessary to secure a custody, parenting time, or decision-making order, here are the steps you must take. Speak to a Fort Collins child custody attorney for more information about your specific case.
Determine Your Right to File for Modification
Colorado courts only allow changes in child custody and decision-making orders every two years. This means that if the court changed your order in the last two years, you must wait until two years have passed to make another modification. There are two exceptions to this rule: if the court decides that waiting would endanger the child’s health or emotional development, or if you are requesting to modify the child’s main residence. Otherwise, you must wait a minimum of two years from the time of the court’s previous modification.
Note that filing for modifications of child custody, decision-making responsibilities, and parenting time are three different things with three separate filing requirements. If you are filing to modify a parenting time agreement, you must also wait two years from the last modification. However, exceptions include if the parent with primary custody of the child has plans to move and take the child far away from you. In these cases, the courts may allow you to file for a modification in parenting time prior to the two-year mark.
When to Use a Stipulation Agreement
Next, determine what type of motion you will file. If you and your co-parent unanimously agree on the changes in the child custody, you will use a stipulation to ask the court to modify your responsibilities. Stipulations use Form JDF 1415, the Verified Stipulation to Modify Decision-making Responsibility. You may also require Parenting Plan forms to show the courts your new proposed parenting plan. A stipulation is only the right choice if you and the other parent agree on all the modifications to the existing order. Disagreement on any point, no matter how minor, requires filing a motion instead of a stipulation.
How to File a Motion for Child Custody Modification
If you and your co-parent do not agree on all the terms of a modification, file a motion with the courts. Parents may file a motion in circumstances such as:
- The child is integrated into the family of the party filing the motion, warranting a modification of decision-making responsibilities.
- There has been a change to the parenting time order that warrants a modification to the decision-making order.
- One party has consistently given the other party the right to make decisions for the child that both parties are meant to make mutually.
- The child’s health or emotional development are in danger, and the benefits that a change to the child’s environment might bring about outweigh the harms.
Fill out Form 1415 as you would for a stipulation, but make sure to check the correct boxes for filing a motion. You must submit this form with the same court that first created the child support orders in your family. This is the only court with the power to make modifications. Keep in mind that if custody modifications affect child support, you will also need to file a motion to change your support agreement.
The courts will send a copy of your motion to the other parent, notifying him or her of your petition to modify child custody orders. Within 49 days of filing the motion, the courts will review your motion and decide whether to schedule and resolve the case with or without a hearing. If necessary, a Colorado family law attorney can help you fight to modify the custody arrangement if it is truly best for the entire family.