Identify the Issues: Consider why you want a divorce and what you want to accomplish. What can be agreed upon by you and your spouse, and what will likely be argued about? Usually people fight over either money or the kids, sometimes both. The more you and your spouse can agree upon and settle on your own in advance, the better. Although Colorado is a “no-fault” state when it comes to divorce, parties spend a lot of time and money arguing over whose fault it is — sometimes fault is relevant, other times not.
Pre-Nuptial, Antenuptial or Premarital Agreements: These are financial agreements made before the marriage with the intent and purpose of making an agreement, before the marriage, about maintenance or alimony and about how assets and will be treated in the event of a divorce. Without an agreement, maintenance or alimony will be determined by the Court considering statutory guidelines and assets will be classified as “marital” or “separate” and then divided to reach a fair or equitable result without regard to fault. What the Court decides is fair may not be what the parties think is fair.
Pre-nuptial agreements are used to exclude certain property from the “martial pot” — for example, consider when one party owns a business from before the marriage: the business has a value at the time of the marriage and increases in value during the marriage; what is the monetary or market value of the pre-marital interest, has it remained “separate” property or become “marital” property, and what is the appreciation in value of the business during the marriage and classified as “marital” property to be divided between the spouses? How is the “marital” portion of the business to be divided: sell the business and split the proceeds, payout over time of the other person’s interest, or offset the value of the interest against other property? A pre-nuptial agreement can determine how the business interest is handled in the event of a divorce and remove the issue from the divorce litigation.
Post-Nuptial Agreements: These are financial agreements similar to pre-nuptial agreements, but will be more carefully looked at by the Court to determine if they are fair. If the Court finds that the agreement is not fair, it may be set aside and not enforced at the time of a divorce. A post-nuptial agreement may also be a Separation Agreement entered into to settle financial matters prior to the divorce.
Common Law Marriage: In Colorado, a common law marriage is formed when the parties “hold themselves out” as being married. The marriage does not need to be recorded with the County Clerk to be considered valid. Whether a common law marriage exists or not, is a question of fact to be determined by the Court during a divorce case if the issue is raised. Whereas it is clear that a marriage exists if the parties had a marriage ceremony and invited friends or witnesses to the event, it is not so clear if the parties simply filed tax returns jointly, filled out insurance forms as husband and wife, bought a house together, have joint financial accounts, lived together or had children together. It is a case by case determination. If it is determined by the Court that a common law marriage was entered into, then the parties will need to deal with maintenance or alimony and division of property and debts in a dissolution of marriage proceeding. Documentary evidence and witness testimony regarding the course of conduct of the parties during their relationship will be used to prove or disprove the existence of a common law marriage.
Financial Documents: Obtain copies of financial records as soon as possible if a divorce proceeding is expected. This includes income tax returns for at least the last 3 years, pay stubs, copies of bills and loan statements, bank account and credit card statements. Copies of social security cards, birth certificates, titles and deeds should be obtained and kept in a safe place. Documents may become unavailable or simply vanish after the divorce case has started and the parties physically separated.
Financial Accounts: Joint bank and credit card accounts typically create problems once separation or divorce is being planned or considered. A joint account enables one party to remove the funds without the knowledge or consent of the other party. Joint liability on a credit card may result in one party having to pay debt incurred by the other party without their knowledge. If separation or divorce is contemplated or expected, close the joint accounts. If your paycheck is direct deposited into a joint account, change where it is deposited. Consider opening new, separate, accounts.
Business Interests: Work from home? Consider alternative work places in the event you need to move out. Have an interest in a business with others? Consider the value of your interest in the business and what may happen if you need to buy out your spouses’ share of the interest (marital property). Is your business interest transferrable — can the stock held by you in a closely held company, or the interest in a partnership, be sold? Are there restrictions on the transfer of your interest in the business? Obtain documentation regarding any restrictions on sale or transfer — partnership agreements, buy-out agreements, etc. Obtain copies of business income tax returns for at least the last 3 years and recent income statements. If you are a sole-proprietor or self-employed individual, work on an income statement covering the last 6 months detailing all business expenses and revenue, and obtain copies of receipts or invoices backing up the numbers.
Personal Property: Make a list of all household goods and furnishings, vehicles (cars, trailers, boats), bank accounts, stock and investment accounts, 401k, IRAs, pensions, PERA, business interests and insurance policies. Take photos of property and household items. Research the market value of the personal property: NADA or Kelly Blue Book values for vehicles; Craig’s List, eBay, or other online trading services for household items, equipment, electronics, computers, etc. Make a list of property you had from before the marriage, received as a gift, or inherited during the marriage and determine their market value.
Real Property: It does not matter in whose name the property is titled or who is on the mortgage. The issue is whether it was obtained during the marriage, or if from before the marriage, whether it has increased in value during the marriage. Research the current market value: valuation by the County Assessor; realtor market valuation; appraisal; online valuation services. Is the property held in trust? Obtain a copy of the trust agreement or other document that created the trust. Is there a mortgage, deed of trust, judgment lien or other lien against the property? Obtain a copy of the lien agreement and the most recent statement or bill showing what is owed.
Separate Property: Make a list of all property, personal or real, that came from before the marriage and determine both its value at the time of the marriage and its current market value. Did you receive the property during the marriage as a gift or by inheritance? Include those items in the list of separate property. Consider each item on the list and whether you have documentation that will show it remained in your name alone during the marriage; preserve the documentation to show that what was separate property did not change into marital property during the marriage. Do you still have the property? If not, what happened to it? If it was transferred into different property that you still own, obtain documentation showing that it always remained in your name and was not transferred into both spouses names.
Liabilities & Debts: Make a list of all credit cards, account numbers, creditor on the account (issuer), amount owed and how the debt was incurred or what charges are included in the balance owed. Obtain copies of current account statements. When it comes to dividing the debts between you and your spouse, it does not always matter which one of you is liable on the account. The division of these liabilities and debts at the time of the divorce does not change who is liable on the account to the creditor, but the division of payment responsibility between the spouses will be determined by the Court. Typically, the debt secured by property will follow who gets the property. Investigate whether the debt, if held in both spouses names, can be refinanced to remove the other spouse from liability to the creditor and what will be needed to refinance. Although houses are frequently refinanced, vehicle loans and leases usually are not. Include any security deposits with the list of assets (personal property). Include income taxes owed in the list of liabilities and try to determine which spouse’s income led to the unpaid taxes being owed.
Safety Plan: Have a “Plan B”. If you will need to leave your residence, either voluntarily or involuntarily, on short notice, have a plan for where you will go and how you will get there. Set aside funds for use in paying attorney retainers, temporary housing needs, transportation to/from work, food, and other personal needs in the event you need to support yourself independently of your spouse for a period of time. The funds set aside should not be accessible by anyone other than you. Consider a backup source of funds: friends, relatives, loans. Do not go on a spending spree and be able to document all funds used, who paid to and purpose.
Parenting the Children: If possible, reach an agreement and put it in writing about how the kids are going to be taken care of if you and your spouse separate. Specify clearly when they will be in the care of each parent: what days of the week and the from and ending times. Do not bad mouth the other parent to the children or attempt to get them to be on your side of the breakup. Keep a log or journal of when the children are in your care and of any events of significance that occur. Consider how you will be able to prove to the Court, if needed, that the children were with you. For child support purposes, having the children overnight is what counts. If you pay support to the other parent, use a check and write “child support” in the memo field; obtain a copy of the check when it clears the bank. Providing food, diapers, car seats, clothes and other items to help with the children is not viewed as “child support”. Cash counts, but get a receipt.
Protection & Restraining Orders: It is fairly easy for the mother to go into court without advance notice to the father and obtain a temporary protection order that prohibits the father from being in the residence (usually within 100 yards of the mother) and places temporary custody of the kids with mom. The reason for the protection order may or may not be legitimate. The initial application is made “ex-parte” (no advance notice) and it is not uncommon for courts to grant the application and then set a full court hearing in two weeks for a more complete look at the facts. The process is used all to often by mothers to get dad out of the house and give them sole authority over the kids, and get an advance lead or step-up in an expected custody fight. Father’s going into court to obtain a protection order against mom typically do not fare as well.
It is best to appear in Court at the hearing with an attorney and witnesses to show that the allegations made to get the protection order are false. Failing to appear at the hearing will result in the protection order being made permanent. Take care to NOT violate the temporary protection order after having been served on you and before it is resolved in court. No contact means NO CONTACT: no messages by text, FaceBook, Instagram, etc., no leaving voice mail or sending messages through friends. Be safe and have an attorney communicate and make arrangements for you. Violating a protection order will result in arrest and jail with posting of a bond for release, charges of “DV” (Domestic Violence) being lodged and having to deal with prosecutors who typically will not drop the charges and only want a conviction, by plea bargain or after a trial.
Leaving the State: If there are children involved, leaving the state with the kids is not a good idea. If the children have lived in Colorado for the past 6 months, then Colorado is considered their home state and Colorado courts will have jurisdiction over the children. If they are taken out of the state, the Court has authority to order their return. If they are not returned, the Court may order their legal custody be placed with the parent remaining in Colorado and give authority to that parent to pick up the children and return them to Colorado. Violation of a custody order is a crime. Removing the children from Colorado without permission may also be considered negatively by the Courts when determining permanent placement at the time of the divorce.
Do-it-Yourself or Get Help: Going it alone, or “pro se” (also known as pro per) can save some up-front legal costs. But, will also require that you do all the legal work by yourself. Pro se litigants are held to the same standard as licensed attorneys in a divorce case: know the law and follow the Court’s procedures. There are a multitude of legal forms available, sometimes with instructions, published by the Colorado Supreme Court to assist pro-se litigants. Visiting the Colorado Self Help Resources links on this site is helpful both for those acting as their own attorney and those with an attorney to educate and familiarize themselves with the process. Although you may save some up-front costs in proceeding pro se, if something goes wrong during the case, the long-term cost may be enormous and the harm caused irreparable. The divorce process is intended to resolve the marital issues between the parties permanently. Child-related matters may be revisited in modification proceedings post-decree, but the decisions made by the Court during the divorce case may result in one parent having a preference over the other parent when a request is made to modify or change what was ordered. It may be wiser in the long run to get legal help from the start.
Personal Counseling, Networking & Support Groups: A divorce is the death of a relationship. Like any death of someone you are close to, there is usually a grieving process with an emotional reaction including anger, guilt, anxiety, sadness, and despair. In most cases, the process ends with acceptance and moving on. In other cases, there is ongoing litigation.
Obtaining a personal counselor or therapist can be very beneficial and should not be considered as a sign of weakness. Rather, it is an indication that the person going through the divorce recognizes that it is hard and that it helps to have someone to talk to and work through it with. It is generally better to have a counselor who is professionally trained and independent than the eager ear of a new girlfriend or boyfriend. Personal friends may mirror, if not heighten your emotions rather than give objective feedback that will help you deal with the problem productively. A girlfriend or boyfriend will typically make communication with the former spouse very difficult when emotions run high and the former spouse may fear being replaced as “mom” or “dad” in the children’s lives and will respond defensively.
Potential counselors may include a professionally trained priest, rabbi, pastor or minister at your church at little or no cost. Licensed professional counselors or therapists may be available through your health insurance at less expense. There are a number of licensed counselors available at reduced cost as well depending upon income.
Networking with family and friends can help and will give you someone to talk with about the case and commiserate with. Support groups of persons experiencing the same divorce process as you can provide tips and shared understanding of the steps involved. Support groups for fathers may be listed by geographic area on this site at the Shared Parenting link.
The information provided above is general in nature, is not intended as legal advice for your particular situation and should not be relied upon without first consulting with legal counsel. Martin Law Firm provides legal representation in divorce matters in the Denver Colorado metro area and will tailor its services to your particular needs and unique circumstances.
https://brettwmartin.com/wp-content/uploads/2016/04/Martin-Law-Firm.jpg00Brett W. Martin, Esq.https://brettwmartin.com/wp-content/uploads/2016/04/Martin-Law-Firm.jpgBrett W. Martin, Esq.2017-01-07 16:50:372018-01-18 09:11:16Pre-Divorce Planning