In an effort to make the difficult and, sometimes, confusing process of obtaining a divorce in Colorado more understandable and less confusing, we at Opfer | Campbell P.C. are writing this blog series entitled “Getting a Divorce: The Process Series” which will walk Colorado residents through the process of a dissolution of marriage in Colorado from start to finish. Can I Get A Divorce In Colorado?
This blog is the first in the Process Series and addresses the legal requirements that must be met in order for Colorado residents to obtain a divorce in a Colorado Court.
Colorado is what is known as a “no fault” divorce state. This means, essentially, that if you are unhappy in your marriage in Colorado you can ask the court for a divorce. Colorado Revised Statutes Section 14-10-106(1)(a) provides that the district court shall enter a decree of dissolution of marriage when the court finds that:
- At least one of the parties was domiciled in the state of Colorado for at least ninety-one (91) days immediately before the start of the divorce proceedings;
- The marriage is irretrievably broken; and
- At least ninety-one (91) days have elapsed since the co-petition was filed or the respondent was served with the petition.
The important parts of the above referenced statute are, first, that the court shall enter a decree of dissolution of marriage. The word “shall” in the law indicates a lack of discretion on the part of the court. This means that if the court finds that the required elements are present the court does not have discretion to deny the divorce; the court must enter the decree. The “elements” mentioned above that the court must find in order to enter a decree of dissolution of marriage are not usually a bar to obtaining a divorce.
Have I Met The Residency Requirement?
The first element related to a Colorado court’s jurisdiction, or power, to enter a decree of dissolution of marriage requires that one or both parties must have lived in Colorado, with the intent to remain in Colorado indefinitely, for at least the ninety-one (91) days immediately before the divorce case is filed with the Colorado court. This “Residency requirement” is intended to make sure that your divorce happens in the appropriate state. Generally, this is the state in which the most evidence of the marriage and subject matter of the divorce is present. For example, lets say a couple, John and Jane, have been married for five years and have lived those five years in Texas. The couple’s marriage began to struggle in their fifth year of and Jane, unhappy in the marriage and having family in Colorado, moves to Colorado on October 1, 2015. Jane does not have any intent to move back to Texas and believes she would like to pursue a divorce in the Colorado court. The soonest Jane could file for a divorce in Colorado would be on December 31, 2015, ninety-one (91) days after she moved to Colorado with the intent to permanently reside in the state. If you have children, there are different time rules for when a Court has jurisdiction to enter orders regarding your children; please look for a future blog posting on how the Colorado court obtains jurisdiction over children and child related issues.
Is My Marriage Irretrievably Broken?
The second element that the court must find before it enters a divorce decree is that the marriage is irretrievably broken. Generally, if one or both parties are unhappy in the marriage and no longer want to be married to the other this element is met. Colorado courts do not force people to stay in a marriage they no longer wish to be in, even if the other party does not wish to get divorced.
Has The Waiting Period Elapsed?
The third element that the court must find before it enters a decree of divorce is often thought of as a “waiting” period. It is our opinion at Opfer | Campbell P.C. that the ninety-one (91) day waiting period allows the parties’ time to absorb the process and make the best decisions for their lives in the future. The waiting period allows both parties time to consult with relevant professionals to make sure that they understand their rights, responsibilities and options so that they can obtain the best possible outcome for their case and set themselves up for success in the future. For example, in the case of our fictional couple, John and Jane, if Jane filed for divorce on December 31, 2015 and had John served with the documents on the same day the soonest the Colorado Court could enter any orders regarding the divorce would be on March 31, 2016, ninety-one (91) days after she served the divorce paperwork on John.
There are always many questions that come up with contemplating a divorce or legal separation proceeding. In the next several installments of this Series, we will attempt to address the most common questions and issues that we see. But for anyone considering a divorce in Colorado, we encourage you to schedule a free consultation with our attorneys, and then you can make the most informed decision for your specific situation.