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The following are common mistakes frequently made regarding Colorado family law. These statements are meant to provide general information based upon Colorado law, not to provide specific legal advice. To learn more about your specific case please contact the Law Office of Kathy A. Higby today. Common Misconceptions About Colorado Family Law 1. IT IS BETTER TO BE THE SPOUSE WHO FILES THE DIVORCE ACTION. FALSE: There is no legal benefit derived by one spouse over the other based upon which spouse filed the action. 2. IF THE MARRIAGE LASTED ONLY A SHORT TIME, IT CAN BE ANNULLED. FALSE: Annulments are granted based upon very limited statutory grounds such as fraud, duress, mental incapacity (intoxication), failure to consummate and incidents which involve prohibited marriages such as bigamy or close blood relatives. The length of the marriage is irrelevant when it comes to annulments. 3. PROPERTY MUST BE DIVIDED EQUALLY BETWEEN THE PARTIES. FALSE: Colorado is an equitable, not community, property state. This means that the Court can divide the property in a manner which it deems fair, based on the particular facts and circumstances of the case. 4. AS A PARENT, I AM ENTITLED TO HAVE MY CHILD HALF THE TIME. FALSE: There is no statutory presumption that each parent is entitled to have their child half the time. Parenting time schedules are established based upon what is best for the child. 5. VISITATION CAN BE WITHHELD IF CHILD SUPPORT IS NOT CURRENT. FALSE: Parenting time and child support are two separate and distinct issues. Denying a parent court-ordered parenting time could result in contempt charges or other sanctions against the withholding parent. If child support is not current, commence enforcement action; do not restrict parenting time. 6. PARENTING TIME DOES NOT AFFECT CHILD SUPPORT. FALSE: A parenting time schedule in excess of 93 annual overnights results in a reduced child support obligation. The reduction is incremental, increasing with the number of annual overnights in excess of 93. It is not total hours or days which the court counts for this purpose; it is overnights. 7. AN ORDER REGARDING PARENTING TIME LOCKS THE PARENTS INTO A SCHEDULE. FALSE: Parenting time is always modifiable based upon the best interests of the child. 8. ONCE A CHILD REACHES 12 YEARS OF AGE, THE CHILD CAN DECIDE WITH WHICH PARENT HE OR SHE WILL LIVE. FALSE: Although the statute indicates the court will consider the child’s preference if the child is old enough to understand the issue, there is no age in Colorado when the child has the right to determine with which parent he or she will reside. The issue is determined based upon the best interest of the child, regardless of the child’s age. 9. CHILD SUPPORT CALCULATIONS WILL INCLUDE THE INCOME OF A NEW SPOUSE. FALSE: In Colorado, child support is based upon the gross income, from all sources, of each parent. It does not include income from a new spouse; however, if the new spouse is making monetary gifts to the parent, that income can be included. 10. THE COURT CAN ORDER A PARENT TO PAY COLLEGE EXPENSES FOR THE CHILD. FALSE: Colorado Courts cannot order a parent to contribute to the college expenses of a child in a dissolution of marriage action; however, if the parties agree to such an obligation, the Court can enforce and/or modify that agreement. 11. CHILD SUPPORT TERMINATES WHEN THE CHILD REACHES 18 YEARS. FALSE: Generally, child support is payable in Colorado until the child reaches the age of 19 unless there is a written agreement stating otherwise, the child is physically or mentally disabled, or still in high school or an equivalent program. There are statutory exceptions which would allow for child support to be terminated prior to the age of 19 if the child were to previously emancipate. Early emancipation can occur through marriage, military service, or other acts inconsistent with minority. 12. WHEN A CHILD EMANCIPATES, THE CHILD SUPPORT CAN SIMPLY BE REDUCED PRO RATA FOR THE REMAINING CHILDREN. FALSE: Child support for multiple children is not based on an equal amount for each child. If one child emancipates, the payor cannot simply reduce the child support for the remaining children on a pro rata basis. Child support must be recalculated pursuant to the child support guidelines, which is a mathematical calculation based upon certain statutory items. Unpaid child support accumulates interest at 12% per annum so any unilateral decision to adjust the child support can be a costly mistake. 13. CHILD SUPPORT CAN BE RETROACTIVELY MODIFIED TO THE TIME OF AN INCREASE IN A PARENT’S INCOME. FALSE: Child support is always modifiable based upon changed circumstances of a substantial and continuing nature; however, it is generally modifiable retroactive to the date of the filing of a motion requesting the relief. A modification prior to the date of filing of an applicable motion is appropriate if there was a change in the primary physical residence of the child based upon mutual agreement of the parties. Parents should exchange their financial information on a routine basis to review the current child support obligation. 14. IT IS EASIER AND FASTER TO OBTAIN A LEGAL SEPARATION THAN A DIVORCE. FALSE: The process to obtain a legal separation is identical to the process required to obtain a divorce. The legal separation, like the divorce, divides property, allocates debts, establishes support obligations and allocates parental rights and responsibilities. The difference is the type of decree obtained. At the conclusion of the legal separation process a decree of legal separation is issued; the parties remain legally married and a decree of dissolution of marriage cannot be obtained for another six months. An individual may request a legal separation instead of a divorce because of emotional or religious reasons. If health issues are a concern, a legal separation allows a spouse to remain on the other spouse’s health insurance coverage. This benefit is no longer available following entry of a decree of divorce. 15. COMMON LAW MARRIAGE OCCURS IF YOU LIVE WITH AN INDIVIDUAL FOR SEVEN YEARS. FALSE: Colorado is one of the few states which still recognizes common law marriage. However, a common law marriage is not a function of either the length of cohabitation or the bearing of children. A common law marriage is a function of present intent to be married, cohabitation, and reputation in the community as a marriedcouple. Filing a joint tax return is compelling evidence of the establishment of a marriage by common law. 16. AS LONG AS A CEREMONIAL MARRIAGE WITH LICENSE WAS NOT UNDERTAKEN, A FORMAL DIVORCE PROCEEDING IS NOT REQUIRED. FALSE: Although a marriage can be established by common law as discussed above, there is no such thing as a common law divorce. Once a marriage is established, either ceremonial or by common law, a formal divorce proceeding is required to terminate the marriage. 17. PATERNITY IS ESTABLISHED BY IDENTIFYING THE FATHER ON THE BIRTH CERTIFICATE. FALSE: Designating the father on the birth certificate is evidence of paternity; however, it is not a judicial determination of paternity. Genetic testing is the best evidence of paternity and can now be accomplished by an oral swab. 18. THE MOM ALWAYS GETS CUSTODY OF THE CHILD. FALSE: Primary parent designation is based upon the best interests of the child. There is no statutory presumption that it is in the best interest of the child that the mother be designated the primary parent--even for very young children. 19. ALIMONY IS FOR THE WIFE, NOT THE HUSBAND. FALSE: There is no statutory presumption that maintenance (formerly alimony) is only awarded to the wife. The determination is based upon financial circumstances, not gender. 20. MARITAL AGREEMENTS ARE NOT ENFORCEABLE IN COLORADO. FALSE: Marital agreements--ante-nuptial, pre-nuptial and post-nuptials--dividing property are ENFORCEABLE in Colorado. However, under certain circumstances they may be set aside. Factors affecting enforceability include, among others, whether there was a knowing waiver; i.e., full and fair financial disclosures; an understanding of how the contract affects rights to which the parties are otherwise entitled; independent counsel; lack of duress; overreaching; etc. Terms in the agreements regarding maintenance, formerly alimony, and/or attorneys’ fees will be reviewed as to their enforceability based upon the current circumstances of the parties. Know the law. Protect your rights. Inaction is not the best policy. Information provided on this web site is extremely general in nature intended to provide a cursory explanation of some of the issues facing potential clients in family law matters. This information is not intended to provide legal advice. There are many exceptions to each general rule. Should you wish to discuss your particular situation with an attorney, please feel free to contact us.
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