Colorado does not require a period of separation before spouses can file for divorce, but many spouses separate before making the leap to a divorce. When a couple makes the decision that a divorce may be the solution for them, they almost always separate first—either to experience life apart before making the final decision or because living under the same roof has become unbearable.
For couples living apart while they wait for divorce proceedings to begin, there are some potential pitfalls to avoid.
Don’t be the Spouse Who Moves Out
If you plan on retaining the family home, you should not be the spouse who moves out of the house or apartment. This mistake immediately puts you at a disadvantage over the spouse who stayed in the home, especially if you have children. Some of the disadvantages you’ll face by moving out include:
A judge is far less likely to award you the right to retain the family residence
If you leave your children in the home with your spouse they can use that against you by claiming you’ve abandoned them. Even if you visit daily, a judge is likely to believe that you don’t prioritize your children
By being a parent who moves to a separate residence, you are less likely to become the primary custodian of the children or may end up with less parenting time
By moving out first, it’s easier for your spouse to claim your personal possessions left behind as part of the family domicile or as marital property subject to division
If you don’t intend to be the primary caregiver of your children or remain in the family home, moving out first won’t affect that outcome, but if your plans include raising your children in their home, moving out is a mistake to avoid.
Don’t Start a New Relationship
Not only is it too soon to move into a new relationship during a separation, but this can also negatively impact custody decisions. If it looks like you’re in a relationship that would expose your children to a third party, that person’s history may become part of the custody decision.
Don’t Lie to Your Lawyer
Your divorce attorney is there to defend your rights and your best interests throughout the divorce process. As soon as you hire an attorney, you should be entirely truthful about all aspects of the divorce including your financial assets and any “misdeeds” your spouse can hold against you in court. If your lawyer is blindsided, they can’t prepare a strong legal defense on your behalf.
Don’t Have Unrealistic Expectations
Some divorcing spouses go into the divorce expecting outcomes that aren’t reasonable or even possible under Colorado’s divorce laws. For instance, some parents believe they’ll get full custody of their children while the other parent will have every other weekend visitation. In reality, Colorado family courts place the best interests of children as their highest priority and seek to ensure that both parents maintain “frequent and continuing contact with their children.” While this doesn’t necessarily mean a judge will order exactly 50/50 custody, it does mean that unless there are mitigating circumstances, you and your spouse are likely to have close to 50/50 shared custody with a number of parenting schedules to choose from.
Some divorcing spouses also have unrealistic expectations about the assets and property they can keep. Under the state’s equitable division laws, only property you owned before the marriage or that you alone inherited isn’t subject to division.
Don’t Put Down Your Ex in Front of the Children or Over-Confide in Them
It can be tempting to tell your children exactly what you think and feel about their other parent during the contention of a divorce, but remember that you are insulting someone they love and they will feel exactly the way you’d feel about someone insulting your children.
With older children, it can be tempting to over-confide in them about what you’re going through and how you feel every day that you’re separated, but it’s important to keep some boundaries and resist burdening children with problems when instead you can choose to spare them.