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Tom Martin Feb. 1, 2017

A primer: divorce mediation basics

As people age and priorities change, those who promised to stay together "until death do us part," may find that continuing in an unsuccessful relationship is not the best option for any of the involved parties.

A recent study in the United States analyzed various factors to determine whether they served as predictors of divorce. The researchers examined 3,000 marriages across the country, focusing on a number of factors including:

  • The number of years the couple dated before getting engaged

  • Income

  • Size and cost of the wedding

  • Whether the couple went on a honeymoon

Some of the findings were not particularly surprising. For instance, as a couple's income increased, the likelihood that the marriage would end in divorce decreased. In all, those making $125,000 or more each year were 51 percent less likely to get divorced than those making $25,000 or less annually.

In addition, those who dated for three years or more were 39 percent less likely to get divorced than those who dated for a year or less before getting engaged.

Less predictably, the researchers found that couples who had a large wedding were more likely to stay together than those with fewer guests in attendance. In contrast, those who spent in excess of $20,000 on their nuptials were more likely to get divorced that those who spent less.

Finally, couples who chose to go on a honeymoon were found to be 41 percent less likely to get divorced than those who skipped the post-wedding vacation.

Regardless of the reasons for a couple's decision to divorce, however, it is critical for both parties to understand their rights when it comes to the dissolution of their marriage.

No fault

In Colorado, individuals who choose to divorce need not state a specific reason for dissolving the marriage. As Colorado is considered a "no fault" divorce state, those filing for divorce must only indicate that the marriage is "irretrievably broken."

In addition, in order to file for divorce in Colorado, residency requirements must be met. Before filing for divorce, at least one member of the couple must have lived in the state for a minimum of 90 days.

Property division

After one party has filed for divorce, a number of concerns will have to be resolved in the course of the dissolution. One of the main issues facing divorcing couples in Colorado is the division of property.

Colorado is considered an equitable division state, as opposed to a community property state. When a couple divorces in Colorado, property is considered either separate or marital. For instance, assets that an individual acquired prior to the marriage are typically considered separate property. In addition, if one spouse received an inheritance during the marriage, that is also likely considered separate property. Otherwise, most property acquired during the course of the marriage is considered marital property.

In some cases, separate property may become marital property, depending on the actions of the spouses. For example, if one spouse purchased a home prior to the marriage, the property may be considered marital if both spouses took on financial responsibility for the home - such as by making mortgage payments and covering other household expenses - throughout the course of the marriage. When separate and marital property has been commingled, it will be up to the couple - or a mediator or judge - to determine which party owns which assets.

In addition to dividing assets, couples will also have to determine how debt will be handled following the dissolution of marriage.

In Colorado, the division of property is meant to be equitable. It is important to understand that equitable does not necessarily mean a split down the middle. If the couple is unable to agree to terms regarding the division of assets and debt, a judge may be required to step in. Under such circumstances, the judge will consider factors - such as the economic stability of each party - when determining an equitable division. Both assets and debts will be subject to an equitable division in Colorado.

Spousal support

In addition to questions of property division, couples going through a divorce should be aware of the laws governing spousal support - commonly referred to as alimony.

In Colorado, guidelines governing spousal maintenance payments were established in January 2014. The guidelines were instituted in an effort to establish some consistency among support orders throughout the state.

The formula is meant to help determine the amount and length of the maintenance award. For instance, say spouse A makes more money than spouse B. The formula calls for 50 percent of spouse B's monthly income to be subtracted from 40 percent of spouse A's monthly income to determine the appropriate spousal maintenance amount. In addition, judges are expected to consider the length of the marriage, the number of children and other factors.

The guidelines are not mandatory, however, allowing judges some leeway when determining the actual award. It is also important to note that spousal maintenance awards are not granted in every case.

Child custody and child support

Of course, for couples with children, the most important decisions will revolve around determinations relating to the kids. When parents have minor children, agreements will have to be made regarding parenting time - also known as child custody - and child support.

In Colorado, decisions must be made regarding parenting time and parenting responsibilities. Parenting time refers to which parent will have physical custody of the children, while parenting responsibilities refers to which parent will make decisions regarding the children. In both cases, parents may be awarded joint or sole parenting time or parenting responsibilities.

In making the determination, the court will consider what is in the best interests of the child. Among the factors a court may consider include the child's wishes and the parent's relationship with the child.

In determining the amount of child support, a court will similarly consider a number of factors, such as:

  • The financial resources of the parents and child

  • The standard of living had the marriage continued

  • The physical and emotional needs of the child

  • The educational needs of the child

  • Under Colorado law, either one or both parents may be required to pay child support. Much like the spousal support guidelines, a formula exists to determine the child support award.

Seek the counsel of a skilled attorney

The legal issues facing those who decide to divorce are numerous and complex. When someone is considering getting a divorce, a wise first step is consulting with a skilled legal professional.

A knowledgeable family law attorney will advocate on behalf of the party seeking a divorce to ensure his or her interests are protected throughout the process. If you are thinking about getting a divorce, do not hesitate to contact The Law Office of Thomas W. Martin to discuss your legal needs.