FAMILY LAW

Colorado is one of the few states to recognize common law marriage. Common law marriage can be entered into by agreement of the parties, in which case the parties would follow the regular dissolution of marriage course in order to terminate the marriage. However, in cases where one party alleges the existence of a common law marriage, and the other argues that the parties never intended to be married, it is up to the court to determine whether or not a common law marriage exists. A common law marriage is established by the mutual consent and express agreement of the parties to be husband and wife, followed by a mutual and open assumption of marital relationship. A key factor in determining whether there is a common law marriage is whether there was an intent by the parties to be married. Common law marriage does not happen by accident or with the passage of time in a relationship. The mere use of another’s name or acquiring property with a joint title does not confer a marital status. Instead, the parties must have expressed their intent to be married, and held themselves out to the world as husband and wife. Although Colorado recognizes common law marriage, there is no separate action outside of dissolution of marriage that needs to be filed in order to terminate a common law marriage.

Petitioning the court for an annulment of a marriage is a request to make the marriage entirely void, as if it never existed. A declaration of invalidity may, under particular facts, be an appropriate remedy when the marriage was not valid when entered. A declaration of invalidity is most frequently applicable to very short-term marriages. Under Colorado law, a marriage can be declared invalid if certain circumstances exist such that a party lacked the capacity to consent to the marriage at the time the marriage was performed; or that a party lacked the physical capacity to consummate the marriage. This list is not exhaustive, as there are a number of other circumstances which may lead the court to determine that a marriage is invalid. To file a petition for declaration of invalidity, one must be domiciled in Colorado for only 30 days. If there are children born of a marriage that is later declared invalid, those children are legitimate, meaning they are afforded the same legal rights as the children of valid marriages. Subject to limited exceptions, the Colorado laws regarding property rights of spouses, maintenance, allocation of parental responsibilities, and child support apply to invalid marriages.

A proceeding for the allocation of parental responsibilities, or custody, is filed in cases where the parties have children together, but are not married. A custody case may also be filed by a grandparent or other person who is not a parent, so long as that person has had physical care of the child for at least 6 months. A custody case may be filed in the district court in the county where the child resides or is found. After a custody case is filed, a notice of any proceeding concerning the allocation of parental responsibilities must be given to the child’s parent, guardian, and custodian, who may file a responsive pleading and who may appear and be heard. A custody action may be adjudicated in the district court or the juvenile court. An action filed in district court is an action between a husband and wife, between parties to a civil union, or between a third party and one or both of the parents. Actions initiated in the juvenile court are between the state or the child and the parents. A custody action is intended to address and resolve all child-related issues, such as parenting time, decision-making responsibilities, child support, etc.

Paternity cases arise out of situations that call for a determination as to who fathered the child. The issue of paternity may arise in parental responsibility, child support actions, and even in dissolution of marriage actions. In actions to declare the existence or non-existence of a child-parent relationship, the parties are usually not married. If the parents are married, the law presumes that the mother’s husband is the child’s father. If the parties are not married, and there is no presumed father, then paternity will have to be established. The action to declare the non-existence of a father and child relationship must be brought within a reasonable time, and not later than five years after the child is born. However, a legal action to prove a parent-child relationship can be initiated at any time prior to the child turning 18. The outcome of an action to establish or disclaim paternity carries with it many consequences. If paternity is established, the biological father may become involved in an additional court proceeding to determine child support and parenting time. On the other hand, if paternity is successfully disclaimed, then the mother may need help locating and finding the biological father of the child. In either case, having an attorney who can advise you and properly inform you of your rights will be of tremendous help.

There are several legal actions in which support for children can be ordered by the court, such as dissolution of marriage or an action for the allocation of parental responsibilities. The Colorado legislature has enacted guidelines to assist in the determination of child support and a schedule of basic child support obligations. An order for child support usually continues until the child reaches age 19 unless it is terminated earlier by court order, or extended past the age of 19 under special circumstances, such as the child is unable to care for him or herself due to mental or physical disability. In cases where the child support order has been entered, the support received by the custodial parent terminates upon emancipation of that child. Emancipation occurs when the child turns 19 years, unless the parties agree otherwise in a written stipulation, or the child is still in high school. Many factors are considered in calculating the correct amount of child support. The parents’ respective incomes and the number of overnights each parent has with the child are only two of those factors. Calculating the amount of child support correctly is extremely important as the cost of raising children significantly adds to each parent’s financial obligations. The child support amount should be utilized to ease the burden of raising children on both parents.

In a proceeding for dissolution of marriage or in a proceeding for legal separation the court must determine which property is the spouses’ separate property, and which property is marital property. The court then sets aside separate property to each party, and divides the marital property as the court deems most equitable. Equitable division does not mean a 50/50 split of the assets. Instead, it is division of property and assets that the court deems most fair under the circumstances. Marital misconduct is not a factor the court will consider in determining which spouse receives which share of marital property. The court will, however, consider other factors set out under Colorado law. All property acquired by either spouse during the marriage is presumed to be marital property, regardless of whose name is on the title. Marital property also includes any retirement and/or investment accounts acquired during the marriage. In dividing marital assets, it is crucial to properly determine the value of those assets, and allocate them pursuant to the statutory guidelines. Having an attorney is germane in achieving this goal.

Arguments for maintenance arise out of actions for dissolution of marriage or civil union, legal separation, or an action for declaration of invalidity of the marriage. The purpose of maintenance is to transfer income from the higher-earning spouse to the lower-earning spouse, to ensure that both parties can sustain themselves during and after the dissolution of their relationship. A request for maintenance should be made in the initial petition for dissolution of marriage or legal separation. Colorado law permits the court to issue temporary maintenance at the request of either party. The purpose of such award is to maintain the status quo, and ensure that both parties have sufficient financial means to continue paying their respective expenses and debts. After calculating maintenance, the court must then determine the temporary payment of marital debt and the temporary allocation of marital property. Temporary maintenance typically ends when a case is dismissed or the final decree is entered, and the amount of temporary maintenance is modifiable for good cause. The term “permanent maintenance” refers to maintenance awarded at a final hearing or agreed upon in a separation agreement, and it can be contractual in nature and non-modifiable or it can be non-contractual and modifiable, depending on the circumstances. Maintenance is a difficult issue as it significantly impacts the economic power of both spouses. Depending on the situation, the amount of maintenance requested is often not the amount that should be owed. Having an attorney to help you determine the appropriate amount of maintenance could save you from spending more money than you would otherwise be obligated to pay.

Contempt actions are usually initiated as a measure to enforce the provisions of any order issued by the court. Contempt may be either direct, meaning that the court has seen or heard the offensive behavior, or indirect, meaning that the offensive behavior occurred out of the direct sight or hearing of the court. Colorado law provides for two types of contempt proceedings and sanctions: remedial and punitive. Punitive sanctions may have a jail sentence attached to it. If you have been served with a Verified Motion and Affidavit for Citation for Contempt of Court, it is very important that you do not ignore this document, and that you speak with legal counsel to learn your rights. If you fail to appear for the contempt hearing, the court is authorized to issue a warrant for your arrest.

In cases involving children, whether it is a custody or a divorce action, removing a child from Colorado may become an issue of contention between parents. Over time, Colorado law has been modified to require that both parents share equally in the burden of demonstrating how the child’s best interests will be impacted if the child were to relocate to a different geographic area. In cases where a parent seeks to relocate with a child, thus often modifying an existing parenting time order, the court will consider a number of statutory factors to determine whether such relocation is in the child’s best interests. These factors include, but are not limited to, why the parent wishes to relocate with the child; why the other parent opposes the proposed relocation; and the anticipated impact of the relocation on the child. In relocation cases, it is important to know that the court does not have the statutory authority to mandate that either parent reside in any specific location, thus parents are free to live anywhere they choose. The court must base the allocation of parental responsibilities and parenting time on where the parents reside at the time the issues of parenting time and parental responsibilities are being determined. In determining a parenting plan that is in the best interests of the child, the court will consider how close the parents reside to each other, but the court will not mandate that either parent move to a certain location. Relocation cases are difficult to establish to the court, as the court is reluctant to disrupt the child’s life and routine. Knowing and understanding the statutory standard and supplying strong evidence to the court is key to prevailing in relocation cases.

The purpose of a civil protection order is to prevent future harm to the person seeking protection. Seeking a civil protection order from the court is different from having a mandatory protection order issued. An action for a civil protection order is one where a party petitions the court for a temporary protection order on an ex parte basis due to imminent danger the responding party poses to the party filing the motion. A mandatory protection order, on the other hand, is one entered against a defendant in a domestic violence case, or a protection order issued as a result of bond or sentencing conditions requiring no contact. After a temporary civil protection order issues, the responding party must be served with a citation, which states the time, place, and location where the case will be heard. The hearing to make the temporary order permanent will occur no later than 14 days after the temporary protection order is issued. Whether seeking or defending against a civil protection order, understanding the statutory standard is the crucial part in building your case and proving your case to the court.

Adoption is a legal process in which the biological parent’s rights are terminated permanently, and the adoptive parent steps into the shoes of that biological parent, assuming all the rights and responsibilities as they relate to that child. Unlike becoming a child’s guardian or having custody of a child, adopting a child permanently terminates the parent-child relationship between the biological parent and the child. This prevents the biological parent from reappearing in the child’s life and seeking to continue his/her role as a parent. Depending on whether a party seeks to initiate a proceeding for kinship adoption, adult adoption, legal custody adoption, same gender parent adoption, or step-parent adoption, different court procedures and rules apply.

Entering into a prenuptial or a postnuptial agreement, which is otherwise known as a marital agreement, is intended to minimize the cost and the stress of litigation in the event of divorce. Marital agreements allow couples to negotiate and enter into a contract with respect to any rights and obligations either during the marriage, or in the event the marriage fails. Those contracted rights may refer to marital property, an award of maintenance, or the designation and distribution of any life insurance policies. This list is not exhaustive, as there are many other issues to consider. A marital agreement may also address the financial issues that concern the children, if any, such as the establishment of a trust account or an educational account. There are various elements that a marital agreement must meet in order to be enforceable. A well-drafted agreement could mean the difference between expensive litigation and statutory division of property versus settlement of the entire case pursuant to the parties’ wishes set forth in the marital agreement. If you are considering entering into a marital agreement, it is a good idea to consult an attorney to ensure that the terms of that agreement are enforceable.

Different procedures apply to legal actions where the petitioner seeks to be appointed the legal guardian or a conservator of a minor child versus an adult. Party seeking appointment of a guardian may seek an order for the appointment of an emergency guardian, a temporary guardian, or a permanent guardian. Colorado law allows for the appointment of a guardian of a child if the court finds such appointment is in the child’s best interest. The person petitioning the court for the appointment must have consent of the parents. However, the guardianship appointment may also be sought in cases where all parental rights have been terminated, the parents are unwilling or unable to exercise their parenting rights, or the guardianship of a child has previously been granted to a third party who has deceased or become incapacitated. Guardianship of an adult, on the other hand, may be established if there is a showing by clear and convincing evidence that an individual of 18 years of age or older is incapacitated, meaning he/she is unable to make responsible decisions that are in his/her best interest. The guardian has the authority to made decisions regarding the support, care, education, health, and welfare of the incapacitated adult. However, the guardian’s authority to remove the incapacitated person out of state and establish his/her residence elsewhere, requires express authorization from the court.

The role of a conservator is to exercise authority over the financial affairs of one who is unable to make those decisions on his/her own. The legal standard for appointing a conservator is clear and convincing evidence. A conservator may be appointed where the court finds that the protected person is unable to manage his/her property. There is no requirement for incapacity in order to appoint a conservator. For example, a conservator may be appointed in cases where a person is missing, detained, or unable to return to the country. In order to appoint a conservator, the court must also find that that the protected person’s property will be wasted or dissipated without proper management. If you know a child or an adult in a situation where guardianship or conservatorship may be appropriate, you may contact us to schedule a free consultation.