Frequently Asked Colorado Divorce Questions Part 5
- I don’t know how to find my husband. Can I still get divorced?
In any divorce case, the general rule of thumb is that the other party must be served with the underlying petition and summons in order for the court to gain jurisdiction over him or her. This is applicable in Colorado custody cases as well. However, there are instances in which the other party may not be able to be located. People may separate and lose contact over the years, without a divorce case being filed. When contact is lost, it may become difficult, if not impossible, to find the other party for purposes of service. In such instances, statute allows for service by publication. This is specifically authorized pursuant to C.R.C.P. Rule 4(g). For a court to authorize service by publication, the requesting party must file a motion, which indicates that a good faith effort to have the other party served has been made, but has failed. If granted, notice of the divorce proceedings will be published for 5 weeks in a specific local newspaper. After this time period, the court can then make a ruling that service by publication has been effectuated. Though the court can then enter a decree of dissolution of the marriage, it may not enter specific financial orders against or affecting the other party until actual service has been completed. Though this can leave a party in limbo as to his or her finances, or other issues, that party can at least be divorced, thereby preventing future financial entanglements or issues.
- My wife is challenging our pre-nuptial agreement. Can she do that?
In Colorado, pre-nuptial agreements are governed by the Colorado Marital Agreement Act, C.R.S. Title 14, Article 2, Sections 301-310. In common terms, a pre-nuptial agreement is generally an agreement entered into between prospective spouses prior to getting married. In most instances, a pre-nuptial agreement is sought by one party to protect his or her assets or income flow acquired before the marriage. Beyond protecting the corpus of pre-marital property, it is not uncommon for a pre-nuptial agreement to contain provisions ensuring that no aspect of that property becomes marital during the marriage in terms of increases in value, which are generally going to be considered “marital.” It is also not uncommon for pre-nuptial agreements to contain provisions regarding waivers of alimony.
Pursuant to statute, a pre-nuptial agreement is presumed to be valid and enforceable, assuming the parties to it ultimately get married. However, C.R.S.14-2-307 sets forth provisions under which a pre-nuptial agreement may not be enforceable. Specifically, if a court determines the agreement was not signed voluntarily it will deem the agreement essentially void. A court may also determine that a pre-nuptial agreement is not enforceable if it determines that one party did not provide a “fair and reasonable disclosure” of his or her assets and financial obligations. Though pre-nuptial agreements will also often contain provisions regarding a waiver of alimony, a court can also negate those provisions if it finds that the alimony aspect of the agreement is “unconscionable.” Unconscionable means more than just “unfair.” Our firm can more fully advise you regarding the subject of pre-nuptial agreements and the legal reality that the terms are not always absolutely binding.
- What is the difference between legal separation and divorce?
Out of the hundreds of Denver area custody and divorce cases handled by us at Plog & Stein, only a handful have started and ended as legal separation cases. A legal separation is different from a divorce in that the parties are technically still married, but separated. The procedures for legal separation are essentially the same as divorce. Both types of cases start with the filing of a petition and summons. Both types of cases will deal with the same issues, whether custody, property division, alimony, or otherwise. Both cases ultimately end with the court entering a decree. With a legal separation, the decree will reflect such, as opposed to indicating that the marriage is permanently dissolved. Once a decree of legal separation enters, either party may seek to convert the decree to a decree of dissolution of marriage (divorce) after 6 months. There is no defense to a motion to convert the decree to one of dissolution. From a practical standpoint, the only reason most parties will entertain the entry of a decree of legal separation is so that one may remain on the other’s health insurance or share in some sort of other benefit which will terminate if the parties are divorced. With the same potential for arguing and acrimony in a divorce case, it is not uncommon for one party to a legal separation case to seek conversion to a divorce case mid-stream.
- Can a court throw out (vacate) my separation agreement?
A separation agreement is the final agreement in a divorce case setting forth the agreed upon resolution of all issues, including property division, alimony, visitation, custody, child support, or any other relevant issues. Separation agreements are governed by C.R.S. 14-10-112 and are generally considered binding. However, as with pre-nuptial agreements, there are situations in which a court can vacate all or part of a separation agreement based on certain circumstances. C.R.S. 14-10-112(2) specifically indicates, “the terms of [a] separation agreement, except the terms providing for the allocation of parental responsibilities, support, and parenting time of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or request of the court, that the separation agreement is unconscionable.” In essence, if the court determines, whether on its own, or upon motion of one of the parties, that a separation agreement is so grossly unfair as to provisions relating to property division, debt allocation, or alimony, it can invalidate those provisions. Without finding it to be unconscionable, the separation will be deemed binding as to those issues.
Parties should keep this in mind when negotiating agreements. If one side to an agreement ends up with 95% of the marital estate, a court or the other party may have grounds to later challenge the agreement. Our attorneys have seen situations in which parties draft and sign separation agreements prior to providing required financial disclosures. This can also be an instance in which a court may void some or all the provisions of a separation agreement. Most courts will view the issues of child support and custody as still subject to the court’s oversight and approval, regardless of what the parties agree to, particularly child support. Parties will sometimes set forth provisions in a separation agreement regarding child support, only to find out that they did not follow the child support guidelines set forth in statute. An experienced Denver child support attorney will have seen situations in which judges will negate the child support agreement arrived at by the parties and enter orders following the guidelines. When drafting a separation agreement, parties and attorneys should be aware of the potential pitfalls and statutory nuances that may affect the binding nature of the agreement or subject it to invalidation by the court.
- What is the difference between a divorce decree and a separation agreement?
At the conclusion of each Colorado divorce case, whether reached via a court hearing or an agreement, a decree of dissolution of marriage is entered. The decree is generally a one page document indicating that the parties are divorced. The decree will also contain potential references to a name change for the wife and specific notations that each party will follow the final orders in the case, whether a “separation agreement” or permanent orders entered by the court. People often confuse the divorce decree with a separation agreement. A separation agreement is essentially a document or agreement setting forth the specific settlement terms arrived at by the parties. It will detail all issues, including custody, visitation, property and debt division, child support, and alimony (maintenance). Though the decree certainly matters from the standpoint of officially letting you and the world know you are divorced, it is the separation agreement that needs to be followed. Pursuant to C.R.S. 14-10-112, a separation agreement is essentially a binding contract, which is ultimately made a court order by reference to it in the decree.
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