Colorado Legal Separation Overview
Understanding Legal Separation in Colorado: Key Facts You Need to Know
Many people who contact me about divorce ask me about legal separation instead. People often confuse a legal separation with a divorce, so I thought it would be important to write a few paragraphs discussing the difference. A legal separation is just that – the parties are separating from one another but they are not legally divorcing. They are still married. Think of a legal separation like an exclusive dating arrangement, as opposed to being legally single after a divorce. While many people who contact me about divorce are more invested in not getting a divorce, some couples actually seek legal separation for various reasons and that is appropriate, too. People seek legal separation for reasons including religious reasons (like those who belong to the Catholic or Orthodox churches), where one spouse does not want a divorce for various reasons, where the parties do not yet know if they want a divorce, and where they want to separate out their finances without a full divorce. Use of legal separation can be very effective for these purposes.
A legal separation results in a "legal" separation that has the same impact on the lives of the spouses involved as a divorce. The separation in and of itself does not terminate the marriage – the separation allows the parties to isolate their financial interests from one another. This includes child support, spousal maintenance, orders of protection, allocation of parental responsibilities, division of income, and assets and debts.
Parties consider legal separation for many reasons. Sometimes they are firmly committed in their religious beliefs and do not want a divorce, but they no longer wish to live together . In other cases, the parties may want to live apart without the consequences of a divorce. Whatever the reason, the end result of the parties separating under the law will not be materially different than a divorce by the time it is over.
In fact, once the parties file for legal separation and seek modification of their responsibilities, obligations, rights and interests, the court will treat the parties as if they are divorcing. The court will not simply "separate out" the debts or the assets or the obligations because the parties have not yet divorced (which view may or may not be optimal for the parties involved). Rather, the parties’ financial interests and obligations are addressed. The court will enter into the record the parties’ agreement on matters of child support, spousal maintenance, allocation of parental responsibilities, allocation routine costs of visitation (like transportation, cameras, monetary support for college and on and on), among others. Under the law, churches look to the law on this topic for direction on assessment of church membership, and others do too.
The mechanics of filing for legal separation are therefore not dissimilar from that of filing for divorce. It is therefore an excellent option for those seeking a divorce but who are not quite sure what they want, or who do not want a divorce. It is important to understand that once the parties file for legal separation, the law will apply as if it were a divorce. The parties will be getting it divorced eventually – whether by dismissal of the case, by obtaining a decree of legal separation or by getting a final decree of incorporation of their separation into a divorce.
What Are the Legal Prerequisites for Separating in Colorado?
In order to physically separate from your spouse, you do not have to obtain a legal separation in Colorado. But if you want a divorce, you need to at least consider one of the following options to get separated under Colorado law.
Separations are an unusual situation in Colorado. A Legal Separation is basically a procedure that is nearly identical to a Colorado Divorce. In fact, some people get a Legal Separation when they do not want to get a Divorce, but expect to change their mind later on when they know how bad they want a Divorce. But this is very rare. The differences between a Legal Separation and a Divorce in Colorado are:
The most common form of separation in Colorado is a physical separation. This means that you and your spouse simply move out of the same house or apartment. After separating physically, the next step is either to file for a Divorce or to obtain a legal separation, as defined above. Colorado has residency requirements for divorces and legal separations, meaning that a Court in Colorado cannot approve a divorce or legal separation until one of the spouses has been a resident of Colorado for at least 91 days.
This means that a legal separation is usually only obtained by a person who is legally separated and/or divorced in another state and moves to Colorado with the intention of having the Colorado Court validate the separation prior to filing for divorce.
Advantages and Drawbacks of Legal Separation
Like all things in life there are both advantages and disadvantages of legal separation. Here are a few of the important ones to consider:
You may be surprised that financial concerns are not the number one downside to a legal separation. First, legal separation is far more expensive than divorce. The reason is that all of the details of the relationship still have to be divided even though you are just living apart. While the process for legal separation is very similar to divorce, those details are rarely easy to work out. A divorce is a much more final process and legally ending a marriage means everything will generally be divided. A legal separation will allow you to go through that process with the spouse while still remaining married. Legal separation should be used when there is the hope of reconciliation Realizing that the relationship is broken but still wanting to hold out some bit of hope for yourself or for the kids may keep you from going the divorce route if there seems to be a shot at reconciliation. Once the divorce process begins, that is it. You will begin living your life as "a divorcee" and are legally separated from your spouse. Many religions and cultures frown on divorce so for those groups who believe that divorce is not an option, a legal separation allows you to stay married without living together. While it may seem that legal separation is the right option for you, sometimes people just take too long to get a divorce if they are separated. Meaningful reconciliation can become harder as the years go by. As mentioned above, the longer the separation lasts, the more difficult it is to get back together. This may also cause control issues if you or your spouse have purposefully dragged things out to avoid the pain of facing a divorce and going through the process. That said, if you have truly given the relationship a chance you may feel more confident about whether you are making the right choice once the decision is made to divorce. Many religious denominations actively discourage their followers from divorcing. For people who are active in their religious communities, a legal separation may be a better option than divorce. A legal separation allows a couple to physically separate while filing for the divorce. This provides time to focus on restructuring finances, and the living arrangements. Most lawyers recommend that to protect oneself and define financial boundaries, a person should move on with a divorce. Often, a spouse only wants the legal separation so that they can claim divorce later if they feel they want it. This could cause some complications later on if the parties change their minds.
Legal Separation vs. Divorce – Their Respective Nuances
Legal separation and divorce may share some similarities, but there are distinct differences between them—especially in the state of Colorado.
When you legally separate from a spouse, your relationship with them continues on a legal basis, without the benefits and responsibilities of marriage. In Colorado, however, the court does not require you to justify a legal separation or show evidence of marital misdeeds.
When you are legally separated from your spouse, your marital status is still as a married person, but you live apart and each spouse assumes financial responsibility for themselves separately. During the process of legal separation, the court can order temporary maintenance (alimony) and discuss property division as if you were to divorce.
The court must approve separation terms similar to a divorce, just without the related finality. For instance, just as in a divorce, the court can divide assets between you, and you must agree on arrangements for custody, child support and/or child visitation as applicable. Your rights and responsibilities toward your children remain intact.
Legal separation is sometimes used when couples want to "test" the idea of divorce or to preserve property rights or benefits that would be lost through a divorce. After living apart for a period of time, a couple may attempt reconciliation, chose to continue their legal separation, or proceed with their divorce.
In Colorado, the first step in the divorce process is filing a legal separation, which essentially is a pre-divorce step. Colorado divorce laws require you to be legally separated for at least six months before you can file for divorce.
Custodial Considerations Affecting Children
A legal separation can have a significant impact on children, similar to the effect of a divorce. If a legal separation is sought or pursued, the court will require parents to develop a parenting plan that outlines the custody arrangement and visitation rights for the non-custodial parent.
If both parents are in agreement about the parenting plan, the court may approve it without the need for a hearing. Whether parents can come to an agreement respected by the court may depend on the motivation for pursuing a legal separation. For instance, the court may not approve a parenting plan if the separation is simply to avoid contested divorce proceedings , but rather with an intent to reconcile the marriage.
If the parties cannot come to an agreement, the court will order a pre-trial conference to determine what changes to the parenting plan may be necessary. This conference will address matters such as the distribution of annual vacation time, medical treatment, and childcare among other things.
In Colorado, a person’s physical presence is not always needed for to obtain a legal separation. Some judges require both spouses to attend the first status conference and a pre-trial conference. Others judges may waive this requirement.
Financial Aspects and Support Necessities
The financial implications of a legal separation vary from relatively mild to substantially serious, depending on the parties’ financial assets and needs. Financially, the primary considerations for spousal support and division of assets are not significantly different than they would be in a divorce. In Colorado, judges make an equitable allocation of marital property, which may or may not be 50/50, depending on specific circumstances. Because the same equitable distribution applies, a legal separation doesn’t affect how you divide your property and assets when you go through a divorce.
Because you’re going to be going through the same process in terms of financial support, what will your financial obligations look like? Again, a lot will depend on your specific situation; however, you and your spouse will be obligated to handle expenses related to your children, even if you’re living apart. You’ll also need to divide the tax liabilities that come with filing your taxes as married.
You can obtain spousal support after a legal separation, but your judge may base your payments on the following factors:
Although you are not divorced, you may be eligible to receive spousal support payments based your specific situation.
Taking a Separation to the Next Level – Divorce
As noted above, legal separation is just one of the options for couples facing the end of their marriage. In a divorce proceeding in Colorado, it is possible to transition a judicial separation into a divorce without the need to file another petition with the court.
Colorado Revised Statute § 14-10-108(2)(a) requires that you file a petition asking for a decree of dissolution of the marriage and state that you have been living separate and apart and acting as single people in the community for a period of at least 91 days after the date of the decree of legal separation. This petition is filed in the district court where your legal separation case proceeded.
The next steps of the divorce process are much the same as with those in a divorce proceeding with a couple who were never legally separated. Because a decree of legal separation generally resolves all issues pertaining to parenting time, child support, maintenance and division of property, this particular step of the divorce process tends to move much faster than a divorce petition that has not been preceded by a legal separation.
Once a judge has granted your petition, you will be issued a decree of dissolution of marriage that suggests the finding of the minimum period of separation as stated in the petition. A legal separation can also be turned into a divorce because it no longer serves a legitimate purpose in terms of separating you from your spouse and allowing you to move forward with your life.
Engaging Legal Expertise
While it may be possible to navigate a legal separation on your own, it is often a difficult process that can lead to many problems later. Consulting with a lawyer that specializes in legal separation in the State of Colorado can help you avoid many common pitfalls and understand your rights. Having an attorney with experience in these matters is critical when determining the amount of child support, how spousal maintenance will be handled, and what assets are subject to equitable division . If your case goes to court, a lawyer will help you identify the most important matters at hand, whether it relates to custody, distribution of property or something else entirely. A good attorney will help you go in with a strong game plan and a solid case to present to the judge. In short, they will provide you with the necessary legal advice and representation to make your case as effective as possible.