By: Plog & Stein PC
Chances are if you are considering divorce, you are facing difficulties in your marriage that you don’t believe you and your spouse will be able to overcome. Perhaps you have even made the decision to divorce, but are unsure what the best time to file is. Here are some facts that are intended to help with this decision. Please note that this is not an exhaustive list but rather a list of some (non-emotionally based) reasons why it may be advantageous to delay, or not.
Reasons to Delay Filing to a Later Date:
- Collecting on Your Spouses Social Security: If your marriage lasted more than ten years, you may be able to collect on your spouse’s social security after divorce. If you are close to the ten year mark, but not quite there and you think that you will otherwise qualify to collect on your spouse’s social security, you may want to time your filing for divorce such that you will reach the ten year mark before your divorce is finalized.
- Waiting until the children are older: If your children are close to emancipating, you may want to delay divorce until they are at least 18 or heading off to college. Divorce can often be simpler when the children are either not involved (because they are no longer minors) or when the children are already spending most of the year away from both parents. The age of majority tied into child support obligations, 19, might also be something to consider when pondering delaying a divorce. At age 19, there are generally no more risks or entanglements tied into support of the children. Additionally, if your children are close to school age, you may want to delay until they start school. Many 50/50 parenting plans are considered more developmentally appropriate when the children are school-aged.
- Maintenance considerations: If you are hoping to get maintenance (alimony) from your spouse, you may want to delay. Under the Colorado maintenance guidelines, maintenance is appropriate when a marriage has lasted at least three years. The guidelines further suggest a longer term, the longer the marriage lasts. Conversely, if your spouse is temporarily unemployed, attending school, or in a state of job flux, you might want to consider waiting for their income situation to be stabilized and/or increased.
- Other financial considerations: In some cases it is advantageous to delay so that you can get yourself financially prepared for the divorce. Because it can take several months before a judge makes any orders in your case, you will want to make sure you can financially get through those few months, even if your spouse decides to cut you off. Similarly, you may be able to gather information regarding assets while you are still married that would be difficult to access once divorce begins.
Reasons to Divorce now
- Maintenance considerations: If you would owe your spouse maintenance (Alimony) you may want to get the divorce started as soon as possible. Under the Colorado maintenance guidelines, maintenance is appropriate when a marriage has lasted at least three years. The guidelines further suggest a longer term, the longer the marriage lasts. If your spouse isn’t contributing financially and you have asked them to, the longer you live with this situation, the more likely the court is to see you as “ok” with this situation, which could hurt arguments to not pay maintenance.
- Stop the Bleeding: If you notice your spouse making large transfers of money that are questionable or your spouse is threatening to take the children, you may want to file immediately. Once you file for divorce, an automatic injunction attaches which prohibits you or your spouse from disposing of assets outside the ordinary course of business and from leaving the state with your children without your consent. Both could act as protections to you.
- When do you want to be Divorced: By statute, the soonest you can be divorced (even if everything is settled between you and your spouse) is 91 days after you have filed. If you want to be divorced by a certain time, you should keep this in mind. One reason you may want to be divorced by a certain date is to file taxes as single or head of household. If this is your goal, you need to be divorced by December 31.
- Do you want to be divorced under Colorado Law: If your spouse is moving or has moved to another state and you want to make sure the divorce happens here in Colorado and under Colorado law, you will want to file before they do. Whichever court establishes jurisdiction first will dictate the location and laws for the divorce.
The decision to divorce can be life changing and understanding your rights, options, and risks tied into the timing of of your decision is important.