Legal Separation in Colorado
The term “legally separated” in Colorado has a separate meaning from the physical act of no longer living together. Parties may be physically separated for years without any legal change in their marital status. The attorneys at Graf & Associates, P.C. are experienced in legal separation proceedings in Colorado and can advise you of when and why a legal separation may be a preferred method to achieve your needs.
The process for going obtaining a Legal Separation in Colorado is identical to obtaining a divorce. The same pleadings, financial disclosures and court hearings are required for legal separations and divorces. The Petition for Legal Separation is identical to the Petition for Dissolution of Marriage; the only difference is the title of the pleading. The Petition must allege the marriage is irretrievably broken; the remaining information is identical in both proceedings.
A legal separation in Colorado requires one or both of the spouses to file a “Petition for Legal Separation” in the District Court. Thereafter, you must serve the Petition for Legal Separation and Summons on the other spouse. In the alternative, the parties can jointly file the Petition for Legal Separation or the other spouse can accept the service without the need for a process server or sheriff to hand them the paperwork.
Identical to a divorce, the court in a legal separation is required to divide marital assets and debt, determine if maintenance (alimony) is appropriate, determine parenting time and decision making for the children (child custody/visitation) and child support. The only difference between a legal separation and divorce is that you are still married when the process is over and the decree is entered. Six months after the entry of a Decree of Legal Separation, either party can request the decree be converted into a Decree of Dissolution (divorce). There is no hearing and the other party has no right to object to the conversion from legal separation to divorce.
Procedure for Obtaining a Legal Separation in Colorado
The procedure for obtaining a Legal Separation is identical to obtaining a divorce. The following is a timeline and list of documents and hearings that will occur:
- File a Petition for Legal Separation: Either party must have resided in Colorado for more than 91 day before the filing of the Petition for Legal Separation. A case cover sheet and summons are also required.
- Serve the Petition for Legal Separation and Summons on the other party. This is not necessary if the parties jointly filed the Petition for Legal Separation.
- Respond to the Petition for Legal Separation: Within 21 days of service of the Petition for Legal Separation, the other party must admit or deny the statements in the Petition by filing a response. The Response is not necessary if the parties jointly file the Petition. The time for filing the Response is 35 days if the service was made on the other party in a different state.
- Initial Status Conference: The court will set an initial status conference within 42 days of the filing of the Petition for Legal Separation. The hearing is usually before a magistrate or court facilitator. It is not an evidentiary hearing. Rather, it is intended as a checkup to see if the parties have provided their financial disclosures to each other and to determine if a temporary orders hearing is required. The Court will order parties with children to attend a parenting class and give a deadline for financial disclosures if they have not already been exchanged. The Court will also order mediation and may set a temporary or permanent orders hearings dates.
- Financial Disclosures: You must complete and provide to the other party a sworn financial statement listing your income, expenses, assets and debts. You must also provide three years of tax returns, financial account statements such as checking and saving account statements, credit card statements, mortgage statements etc.
- Mediation: If you cannot reach an agreement on your own, you will be required to attend mediation before the Court will allow a permanent orders hearing. If you cannot agree on a mediator, the court will require you to use the Office off Dispute Resolution (ODR), which provides mediators in the Courthouse.
- Temporary Orders: In the event the parties cannot agree on issues such as temporary possession of the marital home, temporary parenting time (visitation), temporary payment of marital bills, temporary child support, and temporary maintenance (alimony), the Court may hold a temporary orders hearing. This occurs with a magistrate and is usually scheduled for 2 hours to a half a day.
- Separation Agreement or Permanent Orders: In the event the parties reach an agreement on all issues such as division of property, child custody, maintenance (alimony) etc., a Separation Agreement is drafted and made an order of the Court. If the parties cannot reach an agreement on all issues, the case will be set for “permanent orders” which is a trial.
- Decree of Legal Separation: The Court must wait 91 days after the filing of a Petition for Legal Separation before it can enter a Decree of Legal Separation or a Decree of Dissolution. Therefore, the permanent orders hearing, if necessary, will be scheduled more than 91 days after the Petition was filed. If a Separation Agreement was reached, an uncontested permanent orders hearing will be set; this is a quick hearing to confirm that the parties are accepting the Separation Agreement and that all of the other timelines and disclosures were complied with such as finishing the parenting class. In an agreement is reached, the parties can submit an affidavit for non-appearance and the Court will enter the Decree without a hearing
- Conversion to a Decree of Dissolution: Six months after the Court enters the Decree of Legal Separation, either party may request that the Decree be converted to a Decree of Dissolution.
- Post Decree Motions: Either party may file motions to modify child support, maintenance (alimony) or parenting responsibility (custody) after the Court enters the Decree of Legal Separation.
Why File for Legal Separation Rather than Divorce?
Health insurance or employee benefits are primary reasons people choose a legal separation rather than a divorce. Once parties are divorced, the federal ERISA laws prevent an ex spouse from remaining on the other party’s employer provide health insurance except through COBRA benefits. COBRA benefits require additional premium payments that are typically very expensive. There are other employee benefits that may only be available if the parties are still married; this is especially true with members of the armed forces. A legal separation may also provide the parties the emotional opportunity to reconcile the marriage. The emphasis however is on emotional opportunity because marital assets and debts have already been divided in a legal separation. There are also tactical reasons that may make a legal separation advisable. Discuss the issue with the attorneys at Graf & Associates, P.C. to determine what is best for you.