Frequently Asked Colorado Divorce Questions Part 6
- What is a non-appearance affidavit?
In divorce cases in which there are no children, or there are attorneys representing each spouse, the parties can file, along with all other required documents, what is called an Affidavit for Entry of Decree Without Appearance of the Parties, referred to by attorneys and courts as a “non-appearance affidavit.” This document asks the court to go ahead and enter the decree of dissolution of marriage without any of the parties having to show up. A non-appearance affidavit is only used in instances in which there is full agreement. From an efficiency and cost perspective, the affidavit is a great tool for cutting down on both time and attorney costs. In divorce cases with children, but not two attorneys, the court needs to hear from each party, in person, that all agreements regarding the children are in their best interests before it can enter the decree.
- In a divorce case, how do courts generally deal with dividing furniture and household items?
Furniture and household items, just like more significant items, such as houses or 401Ks, are property subject to the court’s jurisdiction regarding the equitable division of such items. Though furnishings are certainly important to the parties, the reality is that most Denver area divorce courts or judges loathe dealing with such issues. In light of this, we always encourage clients to try to work with their respective spouses to agree on these items. Cases do come along, from time to time, in which people may be fighting over Picasso’s or Rembrandt’s. However, in reality, the average family has the traditional couches, tables, televisions, etc. As with other property in a divorce, if the issue goes before a judge, he or she will really look at the fair market value. People often presume that the purchase or replacement cost of an item of furniture is what the court will go by. This is just not true. Many metro area judges will indicate, preemptively, that they will either order a garage sale of the contested household items, with the proceeds to be split, or that they will have the parties flip a coin to see who goes first selecting the items, one at a time, in the home. When faced with the possibility of having to sell everything and start over with the furnishing of a home, the notion of coming to an agreement on such matters becomes much more attractive. Likewise, though attorneys will certainly assist with this process or become involved regarding the debate of furnishings, it is generally better for parties to work this out on their own. It is not that uncommon, once agreement is reached, to put together lists of who gets what, which can be incorporated by reference into any divorce agreement or final order.
- What is the difference between a judge and a magistrate, and who will hear my divorce case?
In most divorce cases in the Denver area, the case will be divided up into a couple of stages. At the initial stages, the case will likely be dealt with by a magistrate. Magistrates will generally deal with initial status conferences, temporary orders hearings, and issues in the case prior to temporary orders. In most cases, unless the parties expressly consent to a magistrate, the final divorce hearing will be heard by a judge. In divorce cases, the primary powers a judge has that a magistrate does not relate to a final division of property and assets and the final allocation of custody (parental responsibilities). Thus, should your divorce case proceed from start to finish in a contested fashion, you will like deal with both a magistrate and a judge at various points in the case. One must keep in mind that a magistrate’s authority in terms of the effect of his or her rulings or orders is no different than that of a judge. Our legal team deals with both magistrates and judges on a regular basis, and strives to become familiar with how each functions in terms of their views on various aspects of divorce law and your case.
- If I have a decree of legal separation, can I change that to be divorced?
As opposed to filing for a divorce, sometimes people choose to become legally separated. Though the process is largely the same, the end result of a legal separation is the issuance of a “Decree of Legal Separation,” as opposed to a “Decree of Dissolution of Marriage.” The Decree of Legal Separation indicates that the parties are legally separated, yet still married. In a legal separation case, the rights regarding property, alimony, custody, and child support are still determined, just as with a divorce. However, without the marriage being formally dissolved via divorce, the parties are still husband and wife. Pursuant to C.R.S. 14-10-120, parties who are legally separated via a decree can convert that decree to a decree of dissolution, or divorce, by filing a motion with the court requesting that the case be converted to a divorce. There is a 6-month statutory waiting period from the time the decree of legal separation enters. After those 6 months, the motion can be filed and served upon the other party. There is no legal basis to object to converting the decree to one for divorce and the court will grant the request once made. Sometimes people who are legally separated are concerned they will have to go through the process all over again to get divorced. Fortunately, statute provides an easy remedy to get things done without having to begin a whole new case.
- I am getting divorced. Is my pre-nuptial agreement binding?
Maybe. Pursuant to Colorado statute, premarital agreements are binding, absent certain exceptions set forth in C.R.S. 14-2-301 et. Seq. So long as a marital agreement is entered into in proper fashion, whether before or after the marriage occurred, it will be binding upon the parties, but for a few exceptions. A pre-nuptial agreement will generally contain provisions regarding property, debt, alimony (maintenance), and attorney fees, and how those items will be dealt with in the event of a divorce. Marital agreements, whether before or after the wedding, are not valid, if they are arrived at while a divorce case is pending. Additionally, to be valid, they must be entered into voluntarily by both parties. Furthermore, there must have been a fair and reasonable disclosure of assets and liabilities provided prior to each party signing the agreement. Presuming those criteria are met, a court will generally uphold an agreement. C.R.S. 14-2-307, also indicates a Colorado divorce court does have the ability to negate the provisions of a pre-nuptial agreement regarding alimony/maintenance, if it finds that the agreement is “unconscionable” at the time of the divorce as relates to the issue of spousal support. The “unconscionable” standard is more than the waiver of alimony being “unfair” and will depend on the facts and circumstance at the time. Thus, though a properly executed agreement is binding as to property and debt division, it may not be as to support. It is generally better to contact a Denver divorce attorney to discuss the legalities and formalities of a pre-nuptial agreement prior to entering into one.
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