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What Issues Does the Court Decide in a Divorce?

Dissolution of marriage (divorce) in Colorado is not as simple as just getting an order or “decree” indicating that the marriage between a husband and a wife is officially, legally over. Though the ending of the marriage is the result of the process which terminates the tie which once existed, thereby allowing each spouse to move on, there are many more potential issues you may have to contend with in your divorce. Once each party has signed the divorce petition, or the second party has been served with a petition and summons, the court holds personal jurisdiction over both of them, their income, their assets, and potentially even their course of conduct during and after the process is concluded. If there are children involved, the court will also hold personal jurisdiction over the kids tied into time with each parent and over the parents as to support and other divorce related issues.

The stage your divorce case is at will determine what types of issues a judge can decide. As part of the overall process, courts can weigh in on both temporary issues and long terms, or permanent, issues. During the earlier stages of your case, either side can request a temporary orders hearing, at which the court can enter orders regarding temporary spousal support (spousal maintenance), temporary use of marital property, such as who will use the house while the case is going on, and temporary child issues, including decision-making and parenting time (visitation). These orders are designed to be effective only while the case is pending and specifically should not prejudice either spouse when it comes time to formulate the “permanent orders.” At the final stage of the divorce, the court can make decisions on more lasting issues, including a final division of both marital assets and marital debts, alimony moving forward, and child custody and support issues moving forward. Though courts generally maintain some form of jurisdiction to modify orders related to support or child custody, the property and debt division orders are generally going to truly be final and permanent. Courts always maintain jurisdiction to enforce their orders so long as those orders are in effect.

It should be noted that if any marriage in which one party needs to seek a restraining order against the other so as to prevent threats, domestic violence, stalking, or harassment, the divorce court will generally also take jurisdiction over that issue, including both issuance of the temporary protection order and ultimately whether it should be made permanent against the accused spouse. In most jurisdictions, the divorce court will even take jurisdiction over a county court protection order case between the spouses. For example, if a spouse in Douglas County files for a temporary restraining order in county court and then files a Douglas County divorce case, the restraining order case will likely be consolidated or merged into the divorce case at the request of either party, or sometimes by the court, on its own.

Going to the core issues the court in your divorce will ultimately decide, the are division of marital property and debt, alimony, child custody, and child support.

Marital property and debt are property and debt accrued during the marriage, with some exceptions set forth in C.R.S. 14-1-113. Courts must decide how to divide up the marital estate “equitably,” meaning in manner the judge decides is fair. If parties are unable to settle their property and debt issues on their own, the court has the final say.

Alimony or “maintenance” is another issue the court will decide, absent an agreement between the parties. Alimony is not mandatory in Colorado and may not be awarded in all cases. Income is the biggest determinant of whether there will be a spousal support award. Though the court is not required to award either party support, it must make a decision as to whether the parties’ agreement as to the subject is sufficient or whether it needs to weigh in to resolve a dispute.

If there are children of the marriage, the court will need to decide what makes sense, or is in the children’s “best interest” in terms of primary residential custody, parenting time for each party, the allocation of legal decision-making rights, and what child support will be. As with other issues, the more the parties agree upon, the less deciding the court must do. Though courts are generally pretty lenient in terms of accepting parties’ agreements, it should be noted that child support is one exception in that most judges are going to want to make sure child support orders are entered pursuant to the C.R.S. 14-10-115 guidelines.

With all of the core issues, the court’s role is not necessarily to snick its proverbial nose into the mix in terms of creating problems where there are none or undoing agreements the parties have reached. At a bare minimum, the court’s only decision to be made simply be to determine that the parties’ agreements are fair, equitable, and not unconscionable to other party, and, if there are children, are in the children’s best interest. Divorce litigants have the power to keep decisions on the core issues out of the judge’s hands by coming to agreements on their own.