Initiation of Proceedings

An action for dissolution of marriage is commenced by the filing of a “Petition” with the district court in the county of residence.  The Petition is a simple document that consists primarily of informational and statistical data concerning the parties, the marriage, and children, if any.  In most cases the Petition can be completed in a short amount of time with little effort.

Once the Petition has been prepared and filed, it must be served with a “Summons” on the other party.  In most cases, the opposing party will be willing to accept the Summons and Petition by signing a “Waiver and Acceptance of Service” which negates the need for personal service by a process server or a law enforcement officer.  In cases where both parties have agreed that the divorce should go forward, the parties can jointly file the Petition as “co-petitioners” which also negates the need for personal service. 

There is a 90 day waiting period after the later of filing of the Petition or completion of service – that is, the decree dissolving the marriage cannot enter until the 91st day following the later of filing or service. 

Usually the Petition, as well as the Summons and waiver or proof of service, are the only documents filed at the initiation of proceedings.  However, in some instances, particularly those involving domestic violence, flight risks with the children, or similar concerns, emergency requests for protection orders (often referred to as “restraining orders”) or other urgent relief may be filed with the Petition.  Obviously, in domestic proceedings the safety of the parties and their children is of paramount concern.  While protection orders should be sought only when truly warranted to protect the parties or their children, and not to obtain a “leg up” in the proceeding or for other ulterior motives, it is an unfortunate reality that in some instances such orders are necessary.  While this overview is not intended to cover matters pertaining to emergency relief such as protection orders, it is important that these matters be addressed with counsel at the first consultation and certainly before the Petition is filed.

First steps in the process following initiation

Following initiation of the proceedings, the next steps are generally addressing temporary issues pertaining to the parties’ children and finances, as well as gathering and preparation of what are commonly referred to as the “mandatory financial disclosures.” 

With respect to temporary issues, it is not uncommon for the parties to separate without a clear plan concerning how they will share time with and responsibility for their children, or how household bills and living expenses will continue to be maintained pending entry of the decree and completion of the proceedings.  In most instances, these issues can be addressed informally through dialog and negotiations between the parties and/or their counsel.  In cases where they cannot, the parties can seek relief from the court.  The court and the parties are required to schedule what is known as an “initial status conference” to be held before the presiding judge, magistrate, or other family law professional working on behalf of the court system.  While procedures vary from district to district, this conference will generally be held within a couple of weeks after the proceedings have been initiated and, depending on the urgency of the issues, the court may enter certain interim orders on such issues.  In cases where the matters are less urgent, or the court is unwilling to enter interim orders for other reasons, the parties can request a “temporary orders hearing” at the initial status conference which is a more formal judicial proceeding where both parties can testify and present evidence on such issues and at the conclusion of which, the court will enter orders governing the parties and their children as necessary pending entry of final orders and the decree.  Generally a temporary orders hearing can be held within four to six weeks of the filing of the Petition, although time frames vary from district to district. 

Simultaneously with addressing temporary issues, the parties generally work on preparing and compiling their “mandatory financial disclosures.”  In all divorce cases, the parties are required to exchange financial documentation, including, but not limited to, paystubs, recent tax returns, bank and other financial account statements, loan and credit card statements, retirement account documentation and so on.  In addition, both parties must complete what is called a “Sworn Financial Statement” which details information concerning income, expenses and assets of the family.  It generally takes at least a couple of weeks or longer, depending on the complexity of the parties’ finances, for the parties to complete their financial disclosures.  It is advisable for the parties to complete the disclosures as soon following initiation of the proceedings as they are able.  Most divorce litigants desire to settle their case by agreement, as expeditiously as reasonably possible, and with as little court involvement as can be had.  Generally speaking meaningful negotiations on a final agreement and settlement cannot be had until the financial disclosures have been completed and exchanged.

It is generally at the end of these steps in the process that the parties will also determine the need for involvement of experts, such as appraisers and other valuation experts for the home and other assets, and/or an expert to assist with the parenting plan (in most instances this will be what is referred to as a “Child and Family Investigator” or “CFI”).  Not all cases require experts, but it is generally at this juncture that this issue should be considered.  Your counsel can assist you in assessing the need for experts and, if needed, can assist you in selecting the appropriate expert or experts. 

After the initial steps have been completed

Once emergency and temporary issues have been addressed and financial disclosures have been exchanged, which usually occurs between one and two months after initiation of the proceedings, the parties and their counsel will then generally engage in discussions and negotiations directed at permanently resolving their case by agreement.  We sometimes refer to this phase of the case as the “negotiation phase.”

Divorce cases are resolved in one of two ways:  by agreement between the parties; or by orders entered by the court following a formal court proceeding known as a “permanent orders hearing.”  Most people prefer the former to the latter and thus during this phase of the case it is important to actively engage the other party in discussions and negotiations directed at achieving a settlement.  A final agreement must address a parenting plan, if there are minor children, as well as all financial issues.  In particular the parenting plan must address at a minimum a parenting time schedule (including holidays and vacations) as well as allocation of decision-making responsibilities concerning important aspects of the children’s lives such as schooling and health care.  On financial matters, the agreement must address at a minimum how all marital property (i.e. all property acquired during the marriage aside from that obtained through gift or inheritance) will be divided; allocation of responsibility for debts and liabilities; child support and child support related matters such as responsibility for health insurance and uninsured medical expenses and daycare, and tax matters, such as the allocation of the dependency exemptions for the children; and whether either party will have a maintenance (alimony) obligation to the other party, and if so for how much and for how long.  Each case is different and while there are common threads as noted above, each case generally has unique issues that will need to be addressed in the agreement.

There are numerous means by which the parties may seek to reach an agreement.  Most people are familiar with or at least have heard of mediation.  Mediation is a process by which a third party mediator, who is generally trained in divorce issues and dispute resolution, will act as a third party intermediary in order to assist the parties in reaching agreements.  Many cases are resolved through mediation and in most cases the court will require the parties to participate in mediation before it will hold a permanent orders hearing.  A mediator cannot force the parties to enter into an agreement or impose orders on the parties; he or she only acts as a facilitator to assist the parties in reaching agreements.  In other instances, particularly where the parties are close to an agreement entering the divorce process, the parties will exchange written proposals in order to reach a final agreement. Generally one party or the other (usually through counsel) will draft a proposed agreement (including a parenting plan where applicable) for transmittal to the other party.  The agreement can then be negotiated and tweaked as necessary to arrive at a final agreement.  In other cases, the parties will meet together with attorneys in a conference amongst themselves, without a mediator or any other third parties.  Such face-to-face meetings can be a productive means of reaching a settlement, depending on the dynamics between the parties and the attorneys involved.  There are many types and methods of “alternative dispute resolution” in divorce cases.  The best method in any given case depends on the circumstances of the case and the relationship between the parties as well as other factors.

The parties have a great deal of freedom and flexibility in crafting their agreement and parenting plan and so long as the agreement and parenting plan are not unconscionable or contrary to the best interests of the children they will almost always be accepted and approved by the court.

Completing the process

If a final agreement is reached, it is reduced to writing, signed by the parties and their counsel and filed with the court for approval, along with the divorce decree itself and any other associated documentation required by the law or the court to finalize the proceedings.  In cases where there are no children, or there are children but both parties are represented by attorneys, the court will generally enter a decree dissolving the marriage and approving the agreement as an order of the court without even requiring the parties to appear for a hearing.  If a court hearing is required in these instances, generally it is a short hearing (about 15 minutes) at which the court will conduct a brief review of the agreement and parenting plan for fairness and best interests of the children before approving same and entering the decree. 

If the parties, despite their efforts, are unable to reach an agreement on all or some of the matters at issue, a permanent orders hearing will be set and held.  At this hearing both parties are permitted to provide testimony and present other evidence on the various issues on which there is disagreement.  The court has a series of statutory criteria upon which it is to base its decision on parenting issues, property division and so on.  Depending on the complexity of the issues, a permanent orders hearing can last from one hour to several days.  The majority of cases are heard in one day or less.  After the court has heard the testimony of the parties and considered the testimony of any other witnesses and the evidence presented, it will then enter “permanent orders” concerning the matters in dispute. 

In all instances, it is important that the parties utilize their best efforts to explore settlement.  While the court generally strives to be fair and even handed in these matters, the presiding judge has only a short period of time to familiarize himself or herself with the family situation and the issues in need of resolution.  It is always perilous to place your family’s future in the hands of a judge who, by necessity, must strictly budget the time allocated to hear and learn about your case.  While some cases must be heard by the court, most cases are resolved by agreement and the parties are well advised to strive to reach agreement in all areas where they are able. 

Preparing for the process

A party entering divorce proceedings should do a number of things in preparation for the process, including, but not limited to, the following:

            1.         Consider and write down a list of your goals with respect to all aspects of the case.  For example, with respect to a parenting plan for your children, it is important to consider what type of parenting schedule may be in the best interests of the children while at the same time working for the parents.  When is it important for the children to be with each parent and why?  How will the various schedules of the children and the parents be meshed?  Decision making is also a consideration.  Do the parties have the ability to work together on decisions concerning their children?  What is the history? – Does the past pattern of involvement by a parent indicate he or she will or should be extensively involved in the future?  With respect to property and financial issues, can or should the family residence be retained and, if so, to which party should it be awarded?  How should retirement and other assets be divided? Who should pay what debts and why?  Will either party need maintenance in order to financially survive and, if so, how much will be needed and for how long?  This list is certainly not exhaustive, but before entering the divorce process or meeting with an attorney it is important to develop some ideas on how you want it all to end. 

            2.         You should gather as much financial information and documentation as possible.  As noted, the parties are required to exchange an extensive list of financial documentation.  As such, you should gather your tax returns, most recent statements on all financial and credit accounts, as well as income documentation on all income sources for the family, whether it be from employment, investments, trust arrangements, or other sources.  If there has been a dissipation of assets during the marriage through gambling, use of drugs or other such behavior, it is important for you to gather documentation that will demonstrate this pattern as well. 

            3.         In divorce cases, there are two types of property.  There is “marital property” which is all property acquired during the marriage, with certain exceptions.  The court has jurisdiction to divide the “marital property        .”  The other type of property is called “separate property.”  “Separate property” consists primarily of property acquired prior to the marriage or property received by gift or inheritance to one party but not to both parties, and which property has retained its separate character (i.e. has not been co-mingled with marital assets).  The court does not have jurisdiction to divide separate property.  Appreciation and income on “separate property” is marital property.  In gathering your financial data, it is also important that you obtain whatever documentation may be necessary to prove the separate character of any property so claimed.  Often, this involves retrieving statements on or near the date of marriage or the date of gift or inheritance. 

            4.         It is important for you to emotionally prepare yourself for the process.  Divorce is generally one of the most stressful events a person will experience.  You should go into the process with a realistic attitude.  You know your spouse probably better than anyone, and in most instances have a better understanding of how your spouse is going to react to the process and how he or she is likely to behave.  These insights can be very helpful to your counsel, and will help you and your counsel manage the emotional, financial, and other aspects of the process.     While no one can control the behavior of another, knowing what to expect will give you a head start in proactively dealing with the other’s behavior. 

            5.         Divorce can be expensive.  If you plan to retain an attorney, and in most instances, you are well advised to do so, you should have a plan concerning how you will pay that attorney.  If experts will be necessary, fee arrangements will need to be made for them as well. Most attorneys will require a retainer for payment of fees and costs, which can be as little as $1,000 to $1,500 and as high as $10,000 and more, depending on the complexity of the case and the level of conflict.  You can reduce fees by being well prepared and utilizing your best efforts whenever possible, to reduce the level of contention with your spouse, and keeping lines of communication with him or her open.  You should expect your attorney to provide you with a written fee agreement and to be clear with you on fee arrangements.  You should not be afraid to ask questions concerning these matters.

Other resources

The Colorado courts website address is www.courts.state.co.us/.  This website contains a wealth of information concerning divorce and family law matters.  The website also has many of the commonly used forms in divorce proceedings, including a sample parenting plan and separation agreement.  Most judicial districts have resources to assist divorce litigants as well.  For example, the Jefferson County courts have a “self-help center” where a court clerk is available to answer administrative questions concerning the process.  It is important for you to know that while the courts can help with the administrative aspects of your case, court clerks are specifically prohibited from giving you legal advice concerning your case.

Conclusion

This overview is only intended as a summary of the process that occurs in most cases; it is certainly not exhaustive and each case will be different.  Given the rough economic times and other factors, many cases are handled without the assistance of attorneys.  While this is understandable, it is always best to seek the representation of counsel with your divorce.  Even if you cannot afford, or do not wish to have, formal representation throughout the proceedings, at the very least we advise that any final agreement be reviewed by a family law attorney before it is signed by you or filed with the court.

We stand ready to assist you with your case and hope you will give us the opportunity to be your counsel. 

We provide the highest quality legal representation with affordable fees.